Memorial for the respondent

I. Whether Jeremy Kaloch and other are guilty of the offence under Articles 7, 8,
& 28 of the Rome Statute as pointed out by the Prosecutor.

i. That no crime as mentioned under the articles 7&8 of the Rome Statute has
been committed.

That the defence submits that the alleged crimes, as mentioned under Article
71 and 82, have not been committed by the accused persons.

(a) There is no transgression of, and no criminal liability under, Article 7

That is humbly submitted before the Court that Article 7 of the Rome
Statute deals with “Crime Against Humanity” and deals with 11 different
types of headings which are categorized as being crimes against humanity.
It states, in Art. 7 (1) that it is “any of the following acts when committed
as a part of widespread or systematic attack directed against any civilian
population, with the knowledge of the attack”.. The PTC of The
International Criminal Court has observed that the following contextual
elements of crime against humanity can be distinguished: (i) an attack
directed against any civilian population, (ii) a State or organizational
policy, (iii) the widespread or systematic nature of the attack, (iv) a nexus
between the individual act and the attack, and (v) knowledge of the attack.
The defense will rely on these elements to prove that the conduct of the
accused persons will not amount to crime against humanity.
(i) An Attack Directed Against Any Civilian Population
The meaning of the term "attack", is not addressed in the Statute
but is clarified by the Elements of Crimes, which states that, for the
purposes of article 7(1) of the Statute, an attack is not restricted to
a "military attack" instead, the term refers to "a campaign or

1
Article 7 – Crime Against Humanity
2
Article 8 – War Crimes
 Memorial for the respondent

operation carried out against the civilian population".3 However, in

this case, military action was directed ONLY towards the terrorists
and members of liberation front. The Prosecutor will need to
demonstrate, to the standard of proof applicable, that the attack
was directed against the civilian population as a whole and not
merely against randomly selected individuals.4 It is also submitted
before the court that the pre-trial chamber in a similar situation in
the Republic of Kenya case held that, “…the civilian population
must be the primary object of the attack in question and cannot
merely be an incidental victim. The term "civilian population"
refers to persons who are civilians, as opposed to members of
armed forces and other legitimate combatants.”

(ii) A State or organizational policy

The defense pleads that in the "Decision Pursuant to Article

61(7)(a) and (b) of the Rome Statute on the Charges of the
Prosecutor Against Jean-Pierre Bemba Gombo"5, it was held that:
“..the requirement of 'a State or organizational policy'
implies that the attack follows a regular pattern. Such a
policy may be made by groups of person who govern a
specific territory or by any organization with the capability
to commit a widespread or systematic attack against a
civilian population. The policy need not be formalized.
Indeed, an attack which is planned, directed or organized -

3
Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the
Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, para. 75
4
Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in
the Republic of Kenya, para81.
5
Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Prosecutor Against
Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, para. 81. (ICTY, Prosecutor v. Tadic, Case No. IT-94-1-T,
Judgement, 7 May 1997, para. 653
 Memorial for the respondent

as opposed to spontaneous or isolated acts of violence -

will satisfy this criterion.”
It is to be noted that the acts of Manoch Army or Local armed
forces under the leadership of Jeremy Kaloch and Joseph Willer
were not a part of state or organizational policy; they were not pre-
planned, formalized or directed towards civilian population rather
they were spontaneous reaction to the terrorist activities by the
liberation front.
(iii) The Widespread or Systematic nature of the attack
Where widespread attack may be the "cumulative effect of a series
of inhumane acts or the singular effect of an inhumane act of
extraordinary magnitude", “systematic" act refers to the "organized
nature of the acts of violence and the improbability of their random
occurrence”. However, here the attacks are neither widespread as
they were directed towards a specific group of wrongdoers, nor are
they ‘systematic’ in nature as they were not (i) being thoroughly
organized, (ii) not following a regular pattern, (iii) were not on the
basis of a common policy.6

(iv) Nexus between the individual acts and the attack

The nexus between such acts and the attack against a civilian
population is one of the requirements that must be satisfied in
order for the commission of crimes against humanity to be
established.7 Isolated acts which clearly differ, in their nature, aims
and consequences, from other acts forming part of an attack, would
fall outside the scope of article 7(1) of the Statute.8 It is humbly
submitted before the court that the acts alleged under this article

6
ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998, para. 580
7
Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-
Pierre Bemba Gombo, ICC-01/05-01/08-424, para. 85.
8
See ICTY, Simic, Tadic and Zaric, Case No. IT-95-9-T, Judgement, 17 October 2003, para. 41
 Memorial for the respondent

must all be done with the common objective and must have similar
repercussions, i.e., to cause large-scale damage to civilian
population, however, here the attacks were not directed against the
civilians rather they were carried out for their protection to
neutralize the terrorists which caused the death of tribal people and
republican guards.

(v) Knowledge of the attack

Though there was knowledge of the attacks, these attacks as

already established by above arguments fall outside the purview of
article 7 of the statute as alleged by the prosecution.
Therefore, Jeremy Kaloch, Lucifer Rhina and Jabralter Manoch
cannot be charged with crime against humanity within the
jurisdiction of this court.

(b) There is no criminal liability, and no transgression of, Article 8 of the

Rome Statute
Article 8 of the Rome Statute deals with War Crimes, which has been
defined under 8(2) to include (a) grave breaches of the Geneva
Conventions of 12 August 1949, namely, any of the following acts against
persons or property protected under the provisions of the relevant Geneva
Convention; (b) serious violations of the laws and customs applicable in
international armed conflict, within the established framework of
international law, namely, any of the following act; (c) In the case of an
armed conflict not of an international character, serious violations of
article 3 common to the four Geneva Conventions of 12 August 1949,
namely, any of the following acts committed against persons taking no
 Memorial for the respondent

active part in the hostilities, including members of armed forces who have
laid down their arms and those placed hors de combat by sickness,
wounds, detention or any other cause; (d) Other serious violations of the
laws and customs applicable in armed conflicts not of an international
character, within the established framework of international law. The
defence pleads not guilty on two grounds, the first ground being non-
internationalization of the conflict, and secondly that the said action of the
Government of Manochistan falls under the purview of Article 8(3).

(i) Non-internationalization of the said conflict.

The subject matter of article 8 deals with two different aspects of
crimes. War crimes, in accordance with the given enumerations,
can either be committed during an international armed conflict, or
can be committed during an internal armed conflict. Article 8(2)(a)
& (b) deal with internationalized wars. The defence pleads that, in
the instant case, there was no international armed conflict of any
kind. Following the evolution of the jurisprudence of war crime in
the case of Prosecutor v. Tadic, the ICC has interpreted the
definition of an international armed conflict to include conflicts
opposing a State against an armed opposition group when “(i)
another State intervenes in that Conflict through its troops (Direct
Intervention), or (ii) some of the participants in the internal armed
conflict on behalf of that other State (indirect intervention).”9
Furthermore, in the case of Prosecutor v. Bemba10 it was held that
when a state plays a role “in organizing, coordinating or planning
the military group, in addition to financing, training and equipping
or providing operational support to that group” then the conflict
becomes international. In the instant case, as far as the involvement
of Rhinese security personnels is concerned, the same was only for

9
Prosecutor v. Tadic (Case no. IT-94-1-A), ICTY A. Ch., Judgment, Para. 84.
10
Prosecutor v. Bemba, ICC T. Ch III, Judgment, ICC-01/05-01/08, 21 March 2016, Para 130.
 Memorial for the respondent

protecting the commercial establishments of GROW scheme, and

the same doesn’t internationalize the said conflict, as assistance
provided by foreign States to the State fighting an armed
opposition group does not lead to the internationalization of the
conflict.11

(ii) The actions of the State of Manochistan is covered under article

8(3) of the Rome Statute.
Article 8(2) (c) & (e) deals with war crimes internal armed
conflicts. In the instant case, the Manochistan administration had,
in lieu of the aggressive terrorist activities on the part of the
Kaloch Liberation Front and other revolutionary organizations,
launched the operation “Eliminate them all” in order to suppress
such violent terrorist uprising, and to maintain law and order in the
in order to preserve the territorial integrity of the State. Article 8(3)
explicitly states : “Nothing in paragraph 2 (c) and (e) shall affect
the responsibility of a Government to maintain or re-establish law
and order in the State or to defend the unity and territorial
integrity of the State, by all legitimate means”.12 Hence no war
crime has been committed on the part of any of the accused
persons.

ii. That Jeremy Kaloch and others are not guilty under article 28 of the Rome
Statute.
That it is humbly submitted that, in lieu of non-establishment of any guilt
under Article 7&8, there cannot be, by any reasonable possibility, any
responsibility of the commanders and other superiors. It is humbly
submitted that criminal responsibility under article 28 of the Roman

11
Prosecutor vs Mbarushimana, ICC PT. Ch. I, ICC 01/04-01/10-465, 16 December, 2011, para. 101.
12
Article 8(3) Rome Statute
 Memorial for the respondent

Statute shall be examined if there is a ”determination that there is not

sufficient evidence to establish substantial grounds to believe that the
suspect is criminally responsible as a ‘co-perpetrator’ within the
meaning of article 25(3)(a) of the Statute.” It is humbly submitted that
due to lack of ‘sufficient evidence’ to hold the leaders responsible
under this Article and to subsequently not being able to prove them
guilty ‘beyond reasonable doubt’13 the leaders in question do not fall
under the military/superior responsibility.
Publicist Chantel Meloni states that : “[…] for the purposes of
determining superior responsibility pursuant to Article 28 ICC
Statute, the subordinate has to have committed a wrongful act
fulfilling the objective elements of a particular crime, with no need for
the subordinate to be also culpable and punishable. On the contrary, if
the act of the subordinate was justified, thus objectively notunlawful,
the superior cannot be made accountable for not preventing or
punishing it.”14
It is most respectfully submitted that the retaliatory acts of the
Manoch Army were necessarily and reasonably to avoid the threat
posed, to avoid a ‘greater harm’.15 In the case of Prosecutor v. Dominic
Ongwen It is submitted that “to exclude criminal responsibility under
either Article 31(1)(a) or (d) of the Rome Statute, the Prosecution must
disprove each element of the defence beyond a reasonable doubt. The
Defence is required only to submit evidence before Trial Chamber IX
(‘Chamber’) as to the existence of the mental condition or the
circumstances giving rise to duress.” 16
It is humbly submitted that the bombings and attacks 17initiated by
the revolutionary organisations such as The Kaloch Liberation Front

13
Article 66, Rome Statute.
14
Chantal Meloni, Command Responsibility in International Criminal Law. T.M.C. Asser, 2010, p. 154
15
Article 31(d), Rome Statute.
16
ICC-02/04-01/15, Prosecutor v. Dominic Ongwen, The Appeals Chamber, Para 2.
17
Para 5 Moot Proposition.
 Memorial for the respondent

on the commercial and other establishments constructed under

GROW scheme, resulted in the death of civilians and the republic
guards of Rhina. This threat of force being used, led the State of
Manochistan to launch ‘Operation eliminate them all’ in which the
Manoch army was deployed to lead counter-terrorism activities
against such Kaloch terrorist organisations. It is therefore submitted
that since that the State of Manochistan’s conduct was a series of “acts
necessarily and reasonably to avoid this threat”18 the same cannot be
constituted as a crime.

18
Art 31 (1) (d), Rome Statute.