Team No.

Indonesian National Round

International Humanitarian Law Moot Court Competition

Memorial of the Prosecutor

2018
 TABLE OF CONTENTS

TABLE OF CONTENTS..............................................................................2

PLEADINGS

I. THE INTERNATIONAL CRIMINAL COURT (“ICC”) HAS

JURISDICTION OVER MICHELL NAZIR (“NAZIR”)
A. PROSECUTOR’S PROPRIO MOTU INVESTIGATION IS ALWAYS
AVAILING..............................................................................................4
B. COMPLEMENTARY JURISDICTION REQUISITES WERE
SATISFIED..............................................................................................4
II. INDICMENTS
INDICMENT 1-COLONEL NAZIR IS LIABLE FOR THE ALLEGED
CRIME AGAINST HUMANITY
1. The perpetrators commited the crime against humanity of
exermination..............................................................................................5
2. The Severity of exermination was of such degree to be generally
recognized as an outrage upon the crime against humanity......................5
3. Such person or persons were civilians taking n active part in the
hostilities and perpetrator was aware therof.............................................6
4. The perpetrators jointly with another or through another person
commited the crime against humanity......................................................6

INDICMENT 2-WAR CRIME OF ATTACKING BUILDINGS

DEDICATED TO RELIGION UNDER ARTICLE 8 (2)(B)(ix) OF THE
ICC STATUE

1. Perpetrator attacked into the buterfly temple were civilian in there and
perpetrator was aware theorof.................................................................7
2. Perpetrator attacked cultural propertiy....................................................7
3. The Perpetrators carry out attacks that have an impact on civil rights
violations.................................................................................................8
4. The perpetrator give orders, solutions or induce crime commisions that
cause severe damage and violate International Law...............................8
2
 INDICMENT 3-TREATMENT OF PRISONERS OF WAR WITH
TORTURE UNDER ARTICLE 8(2)(A)(II) OF THE ICC STATUTE

1. Ressponsibility of commanders affective authority and control for torture

crimes......................................................................................................9
2. The old building that is not suitable for prisoners of war.......................9
3. There are no medical facilities for war proisoners who are sick in the old
building.................................................................................................10
4. The treatment of prisoners in violation of human rights and humanitarian
law and the suspect is aware of this.....................................................10
III. RESPONSIBILITY...................................................................................11
IV. PRAYER FOR RELIEF...........................................................................12

3
 PLEADINGS

I. THE INTERNATIONAL CRIMINAL COURT [“ICC”] HAS

JURISDICTION OVER MICHELL NAZIR [“NAZIR”]

ICC has jurisdiction under (A) prosecutor’s proprio motu authority to

investigate1 and (B) satisfaction of complementarity principle.2

A. PROSECUTOR’S PROPRIO MOTU INVESTIGATION IS ALWAYS

AVAILING

ICC's jurisdiction extends to crimes under Article 5 of Rome Statute

[“RS”] upon; inter alia, Prosecutor’s investigation into allegations of commission
of such crimes.3 (a)Prosecutor’s investigation and issuance of an arrest warrant
against Nazir,4 and (b) Pre-Trial Chamber’s confirmation thereof sufficiently
established legal basis to try Nazir in ICC.5 Thus, while Prosecutor’s proprio motu
6
authority is tightly circumscribed, its preconditions were met,7 and thus it is
properly exercised.8

B. COMPLEMENTARY JURISDICTION REQUISITES WERE

SATISFIED

ICC’s jurisdiction is complementary to national criminal jurisdiction,9 and

is triggered when state of nationality10 or where crimes occurred11 is unwilling12or
unable13 to prosecute.14 While the RS reserves to the state15or accused16 right to

1
RS,UNDoc.A/CONF.183/9,1July2002[“RS”],Art.13(c).
2
RS,Art.1;Art.17(1).
3
RS,Art.13(c).
4
RS,Art.15(3).
5
RS,Art.15(4).
6
Slye&Schaack, 2010, International Criminal Law &Procedure : Cases&
Materials(2nded,Foundation Press,)p.67.
7
RS,Art.12(1).
8
RS,Art.13(c).
9
RS,Art.1.
10
RS,Art.12(2).
11
RS,Art.12(1).
12
RS,Art.17(2).
13
RS,Art.17(3).
14
RS,Art.17.
15
RS,Art.19(2)(b).
4
challenge jurisdiction,17 Donka or Bonham, which have potential national
jurisdiction, have not objected to Nazir’ prosecution before ICC. Donka agreed, in
the following reconciliation, that allegations of Humman Rights and international
law violants would be investigated and individuals responsible for such violations
would be prosecuted.18 Thus, this Court has jurisdiction over Nazir.

II. INDICTMENTS
To secure convictions19 it is Prosecution’s20 duty to prove both Elements of
Crimes[“EOC”]21 and Nazir responsibility for Donka’s Military Forces, The
Bonham Human Rights Forum (BHRF), The Blues Charity Association (BCA)
and other Organizations were fulfilled as infra.

INDICMENT 1-COLONEL NAZIR IS LIABLE FOR THE ALLEGED

CRIME AGAINST HUMANITY

Individual criminal responsibility for committing, wether as an individual,

jointly with another or through another person22 (article 25 (3)(a)).

1. The perpetrators commited the crime against humanity of exermination

Action constituted by perpetrator in Bonham23 Had depicted such action that is
against the principle of humanity.24 the fact that more than one thousand
civilian had been killed in Bonham, including 153 deaths from the community
hall attack.25
2. The Severity of exermination was of such degree to be generally
recognized as an outrage upon the crime against humanity
Crimes against humanity began with a confrontation that took place in October
which has turned violent since the military presence and from this incident

16
RS,Art.19(2)(a).
17
RS,Art.19(2)(c).
18
Problem 33
19
RS, Art. 66(3).
20
RS,Art. 15.
21
RS.Art. 9(1).
22
RS.Art. 25 (3a)w
23
Problem 15
24
RS.7 (1b)
25
Problem 16
5
 caused 50 deaths and more than 100 serious injures.26 This is the responsibility
of prepetrator. On 3 November 2016, local media in Bonham reported after the
last few incidents wich involvves the millitary under Nazir leadership more
than one hundred and fifty (150) people from the northern suburbs of Mewani
went missing as claimed by their family members.27

3. Such person or persons were civilians taking no active part in the

hostilities and perpetrator was aware thereof.
The attack carried out by the perpetrator is not on the right target. The meeting
held in the community hall were carried out by civilians to discuss about
preparation for the upcoming festival.28 Perpetrator knew and should have
known that there were civilians had no active part in the hostilities and the
action also sperding fear among them. It’s mean that the perpetrators have
violated international law, especially regarding crimes against humanity.29
Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are
established by law.30

4. The perpetrators jointly with another or through another person

commited the crime against humanity
Perpetrators commit crimes against humanity by using help from
mercenaries.31 or in this case known as the Black Dog security (BDS).32 the
crimes committed by BDS so as to cause victims remain the responsibility of
the perpetrators, because they use uniforms with the emblem of the donkan’s
military33 and under the leadership of Nazir. And this has been an agreement

26
Problem 13
27
Problem 14
28
Problem 16
29
RS.7
30
Article 9 (1) International Convenant on Civil and Political Rights
31
Article 47 Additional Protocol I 1977
32
Problem 19
33
Problem 20
6
 between the two parties.34 The fact of BDS presence make the crime against
humanity start from since the deployment of BDS forces, a large number of
Bonhamian people have been reportedly arrested and many of them have gone
missing.35

INDICMENT 2-WAR CRIME OF ATTACKING BUILDINGS

DEDICATED TO RELIGION UNDER ARTICLE 8 (2) (B) (ix) OF THE
ICC STATUTE

Individual Criminal Responsibility for ordering, solciting or incuding the

commision36, Perpretrator was violated the international law because attacking
objects of culture37 where elements were fullfilled, substantiated as infra:

1. Perpetrator attacked into the Buterfly temple were civilian in there and
Perpetrator was aware theorof
Thourghout the history of Bonham, The temple has served as a secred place
for the Blues religion and for community gatherings of Bonhamians.38 It
means that there will be many civilians present at the festival and BDS39
through the perpetrators have attacked the temple which will cause many
victims, especially civilians who are not involved in the hostilities. This is
proven by the fact that BDS Personnel opened fire inside of the temple for
twenty minutes.40 as result, Twelve (12) people died and seven (7) were
seriously wounded and the wall was riddled with bullets41, and actually the
Butterfly Tample is a UNESCO World Heritage site.42
2. Perpetrator attacked cultural propertiy
In the armed conflict be supposed protection of cultural property shall
safeguarding of and respect for such property.43 When the attaked agains

34
Problem 19
35
Problem 20
36
RS. 25(3)(b)
37
Article 16 additioanal protocol 1977
38
Problem 21
39
Problem 22
40
Ibid,.
41
Ibid,.
42
Problem 21
43
Article 2 the Hague Convention for the Protection of Cultural Properti in the Even of Armed
Conflict.
7
 BLO leaders, Perpetrator as part of a plan or policy or such a part of large-
scale commision of such crime wich is destruction of cultural property at
Butterfly Tample, as a consequent of the arrest, ten (10) holly grails were
broken, two (2) massive murals were scrubbed.44 The High Contracting
Parties undertake to respect cultural property situated within their own
territory as well as within the territory of other High Contracting Parties by
refraining from any use of the property and its immediate surroundings or of
the appliances in use for its protection for purposes which are likely to expose
it to destruction or damage in the event of armed conflict; and by refraining
from any act of hostility, directed against such property.45
3. The perpetrators carry out attacks that have an impact on civil rights
violations

Various civil rights are regulated in the covenant on civil and political
rights, such as the inherent right to life46, the right not to be tortured47, the
right not to be slavery48, the right to liberty and security of person49 and
various other rights. this should be respected and guaranteed respect.50 This is
evidenced by the fact that civilians feel panic among people in the area. 51 The
annual Blues Festival cannot carried out well cause of attacks from prepetrator
that civilians feels that there is no freedom to run a religious procession.

4. The Perpetrator give orders, solutions or induce crime commissions

that cause severe damage and violate international law

In the article 25 (3) (b) In accordance with this Statute, a person shall be
criminally responsible and liable for punishment for a crime within the
jurisdiction of the Court if that person: Orders, solicits or induces the
commission of such a crime which in fact occurs or is attempted.52 the

44
Problem 22
45
Article 4 the Hague Convention for the Protection of Cultural Properti in the Even of Armed
46
Article 6 (1) International Convenant on Civil and Political Rights
47
Article 7 International Convenant on Civil and Political Rights
48
Article 8 (1) International Convenant on Civil and Political Rights
49
Article 9 (1) International Convenant on Civil and Political Rights
50
Article 2 Internationaal Convenant on Civil and Political Rights
51
Problem 22
52
Article 25 (3)(b) Roma statue
8
 perpetrator gave an order to BDS to carry out the attack, and the attack caused
severe damage such as the door to the temple was irreparably damaged and the
wall was riddled with bullets.53

INDICMENT 3-TREATMENT OF PRISONERS OF WAR WITH

TORTURE UNDER ARTICLE 8 (2)(A)(II) OF THE ICC STATUTE

Individual Criminal Responsibility for the war crime of torture54 to the treatment
prisoners , where elements were fullfilled, substantiated as infra:

1. Responsibility of commanders affective authority and control for

torture crimes
As a military commander shall be criminally responsible for crimes within
the jurisdiction of the Court55, the perpetrator was responsible for the
violation of the crime of torture of the person arrested in 28 December
2016.This was evidenced by the recognition of 22 individuals who claimed
the perpetrator visited claimed the building in the first week of their
confinement and saw him speak to black uniform personnel guarding the
building and giving some instructions for black uniformed troops.56

2. The Old Building that is not suitable for prisoners of war

After the arrest, they were taken to an old building that had been
abandoned by the government (an old building) on the eastern outskirts of
Mewani. The building does not have electricity, clean water supply, or even a
toilet. The detainees were kept in isolation in cells covered 4 to 5 meters,
given the lack of electricity and ventilation, they could not sleep and fell ill
from suffocation. Because of the conditions of detention and isolation, 6
prisoners committed suicide. 57

53
Problem 22
54
RS.8(2)(a)(ii)
55
RS. 28 (A)
56
Problem 28
57
Problem 27
9
 3. There’s No Medical Facilities For War Prisoners Who Are Sick In
The Old Building
Every camp shall have an adequate infirmary where prisoners of war
may have the attention they require,58 but in this case ill inmates are taken by
black uniformed guards because there are no medical facilities or personnel in
the building59,they also said, as long as they were locked up, every day they
saw new people being downstairs to the building, many of them came injured
but no knowledge of medical assistance was given. 6 February 2017 quote
from the ICRC reported that visits to old buildings appeared on local media ,
The report shows the conditions of detention not agreed by the ICRC and have
been the subject of a number of recommendations for improvement, in
particular the shortcomings of health services and the psychological impact of
detention detention. The ICRC Health Envoy also arranges for the care needed
by some prisoners who need urgent medical attention.60 This is be a serious
breach61 of the geneva Convention III 12 August 1949.

4. The treatment of prisoners in violation of human rights and

humanitarian law, and the suspect is aware of this.
Detainees were not allowed to contact other prisoners or their families,
The basic daily food rations shall be sufficient in quantity, quality and variety
to keep prisoners of war in good health and to prevent loss of weight or the
development of nutritional deficiencies. Account shall also be taken of the
habitual diet of the prisoners62. In this case the prisoners only provided 2
glasses of water and 4 slices of bread every day63. It was violated article 26 of
the Geneva convention III. Until May 2017 the IEC reported gross violations
of human rights and international humanitarian law in its first report.64

58
Article 30 GC III 1949
59
Ibid,.
60
Problem 30
61
Article 13 GC III 1949
62
Article 26 GC III 1949
63
Problem 29
64
Problem 32
10
III. RESPONSBILITY
Colonel Nazir is responsible for crimes committed by his subordinates
under (A)superior65 and/or (B)individual responsibility.66 as proscribed in
Article 28(a) of the RS

A. SUPERIOR RESPONSIBILITY
An individual is liable as superior when (i)there exists superior-
subordinate relationship, (ii)he knows, knew or had reason to know crime was
about to be or had been committed, and (iii)fails to prevent or punish
subordinates.67 First, Colonel Nazir had effective control68 the moment appointed
as leader,69 Colonel Nazir was devoted to assessing to current situation and
devising a proper strategy to bring Bonham back under the full authority of the
Donkan government by military means if necessary.70 Thus, Colonel Nazir is
superiorly liable towards all action constituted by [NCC].71

B. INDIVIDUAL RESPONSIBILITY
Notwithstanding superior responsibility, Colonel Nazir can be individually
liable, which would reflect full criminal culpability.72 A person, who planned,
instigated, ordered, committed of a crime, shall be individually responsible for the
crime.73 He indicated that he would personally supervise the operations and would
welcome the assistance of the security forces under the authority of Donka’s
Military. Thus, Colonel Nazir is individually liable.

65
RS, Art28 (b).
66
RS, Art.25.
67
Delalic (Trial Judgment), ICTY-96-21-T, 16 November 1998, 346, ('Celebici').
68
Simic, Tadic, Zaric (TrialChamber), ICTY-95-9-T, 17 October 2003, 659.
69
Problem 11.
70
ibid
71
Problem 22.
72
Kayishema (Judgment), ICTR-95-1-T, 21 May 1999, 210.
73
ICTY Statute,Art.7(1).
11
IV. PRAYER FOR RELIEF
Wherefore Prosecution respectfully request Nazir to be held liable,
superiorly and individually for:

a. The crime against humanity of exermination under article 7(1)(b) of the ICC
Statue

b. The war crime of the intentionally directing attacks against buildings dedicated
to religion under article 8(2)(b)(ix) of the ICC statue

c. The war crime of torture under article 8(2)(a)(ii) of the ICC statue

12