Team No.

1104

Indonesian National Round

International Humanitarian Law Moot Court Competition

Memorial of the Prosecutor

2016
 ADMISSIBILITY OF JURISDICTION

1. In considering whether a particular case is admissible before the International

Criminal Court (“this Court”), it must be seen if this Court may exercise its role to
complement national criminal jurisdiction States.1 Moreover, this Court shall also observe
whether such case has satisfied sufficient gravity to justify further action by this Court.2

COMPLEMENTARY OF FODAVA’S JURISDICTION

2. This Court’s jurisdiction is complementary to national criminal jurisdiction, and is

triggered when the jurisdictional State is unwilling or unable to conduct an investigation or
prosecution. 3 Presently, despite the victims of Fodavan conflict’s and the international
community’s request for a thorough investigation and prosecution to those who are
responsible,4 Fodava took no action5 with their power to bring the perpetrators to justice.
Instead, Fodavan government has referred such matter to this Court.6 This demonstrates
Fodava’s unwillingness to prosecute Mrs. Mona Tammy (“the Suspect”) respectively.7

3. Subsequently, the fact that the Suspect has left the country on ex post coup8 and the
difficulties to arrest her after months of manhunt9 further justify Fodava’s inability to obtain
the Suspect to be prosecuted domestically.10

                                                                                                                       
1
Rome Statute of the International Criminal Court, (1998) Preamble ¶10,art.1 [Statute].
2
Ibid, art.17(1)(d).
3
Ibid, art.17(1)(a)-(c).
4
Problem, ¶¶15,25.
5
Katanga, ICC-01/04-01/07-1497 OA8, ¶78.
6
Problem, ¶26; Statute, art.13(a),14(1); Rules of Procedure and Evidence, (2nd ed, 2013)
Rule 45 [RPE].
7
Statute, art.17(2).
8
Problem, ¶25.
9
Ibid, ¶26.
10
Statute, art.17(3).
1
 SUFFICIENT GRAVITY OF THE CRIMES

4. The Pre-Trial Chamber I of this Court (“PTC”) may take further action over the
Prosecution’s allegations only if it suffices its gravity.11 In assessing the gravity of the crimes,
one must take into consideration whether the conduct has caused a “social alarm” towards
international community.12 In this case, such gravity is present to all Counts,13 since it has
reach the condemnation from the international community.14

                                                                                                                       
11
Statute, art.17(1)(d).
12
Ibid, Preamble ¶¶3-4,art.1; Dyilo, ICC-01/04-01/06-8-US-Corr, ¶46.
13
Problem, ¶27.
14
Problem, ¶¶15,19,25.
2
 EVIDENTIARY MATTERS

STANDARD OF PROOF

5. Prosecution will provide sufficient evidence to establish “substantial grounds to

believe” 15 that the Suspect committed war crimes enlisted infra. 16 Prosecution will
demonstrate a clear line of reasoning underpinning specific allegations,17 going beyond mere
theory or suspicion.18 Accordingly, in determining such grounds, the PTC must make an
assessment of the case before it as a whole.19

ADMISSIBILITY OF EVIDENCE

6. The admissibility of evidence before the PTC is determined by balancing its probative
value and relevance against any prejudice to a fair trial caused by admission of the
evidence.20 Prosecution’s evidence has sufficed its probative value and hence is admissible
because they are reliable and relevant with our indictments.21

                                                                                                                       
15
Statute, art.61(7).
16
Problem, ¶27; Memorial, ¶¶7-38.
17
Mbarushimana, ICC-01/04-01/10-465-Red, ¶40.
18
Dyilo, ICC-01/04-01/06-803-tEN, ¶39.
19
Ibid.
20
Statute, art.69(4); Katanga, ICC-01/04-01/07-717, ¶77.
21
RPE, Rule 64(1),(3).
3
 COMMON ELEMENTS OF CRIMES (“EOC”)

7. In accordance with Article 8(2)(c) and 8(2)(e) of the Statute and with the assistance of
the EOC, all Counts require the following common elements.22

CONTEXTUALISATION AND ASSOCIATION WITH

NON-INTERNATIONAL ARMED CONFLICT (“NIAC”)23

A. Existence and nature of NIAC

8. The Statute has affirmed NIAC might occur when there is a protracted armed violence
between governmental authorities and organised armed groups or between such groups.24 The
existence of this conflict began when the Warrior of Light (“WOL”) fighters attacked local
police station and some military bases that exacerbated into 13 districts across the country
from October 2011 until December 2012.25 In order to establish the existence of such NIAC,
Prosecution will prove that (1) the armed violence in Fodava has reached certain degree of
intensity, and (2) the WOL fighters is an organised armed group.26

1. Level of intensity

9. In assessing the level of intensity, the Court has stated in Gombo27 that the violence
must reach higher threshold beyond mere internal disturbances and tensions, such as riots,

                                                                                                                       
22
DÖRMANN, Elements of War Crimes under the Rome Statute of the International
Criminal Court: Sources and Commentary, (2003) at 383 [DÖRMANN]; LEE (ed), The
International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence,
(2001) at 214 [LEE].
23
Elements of Crimes, (2002) art.8(2)(e)(iv) ¶4, art.8(2)(e)(i) ¶4, art.8(2)(c)(i)-3 ¶4 [EOC].
24
Statute, art.8(2)(d),(f); Geneva Conventions, (1949) common art.3 [GC].
25
Problem, ¶10.
26
Tadić, IT-94-1-T, ¶562.
27
Gombo, ICC-01/05-01/08-424, ¶231.
4
isolated and sporadic acts of violence and other acts of a similar nature.28 Presently, the
clashes between the Fodavan military forces and WOL fighters have widely spreaded29 in
Tyra, Osso, and over 11 other districts on daily basis.30 Thus, the attacks have reached certain
level of intensity.

2. Organised armed group

10. According to Dyilo,31 this Court provide materials for a group to be considered as an
organised armed group when that group being (i) under responsible command; and (ii)
exercise such control over a part of territory.32

11. FIRST, the notion of “under responsible command” implying that a group is capable
to plan and to carry out sustained and concerted military operations,33 including the ability to
procure, transport and distribute arms. 34 Prosecution asserts WOL is under responsible
command since all WOL clergymen were equipped with weapons,35 WOL fighters were able
to carrying high-grade military rifles and arsenals of grenades openly inside and outside of
the Cave Temples of Tyra (“Cave Temples”),36 to transport materials for homemade bombs
into the Rose Garden,37 and to conduct a sustained and concerted military tactic by hiding
among civilian population and launching surprise attacks against Fodavan forces.38
                                                                                                                       
28
Additional Protocol II, (1977) art.1(2) [AP-II]; Second Protocol to The Hague Convention
of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, (1999)
art.22(2) [THP-II].
29
Tadić, IT-94-1-T, ¶566.
30
Problem, ¶¶10,12,16.
31
Dyilo, ICC-01/04-01/06-803-tEN, ¶232.
32
AP-II, art.1(1); ZIMMERMANN, ET AL (eds), Commentary on the Additional Protocols,
(1986) ¶4463-4470 [ZIMMERMANN].
33
Akayesu, ICTR-96-4-T, ¶626.
34
Limaj, IT-03-66-T, ¶90.
35
Problem, ¶11.
36
Ibid, ¶13.
37
Ibid, ¶18.
38
Ibid, ¶16.
5
12. SECOND, an organised armed group shall also capable to exercise control over
certain territory as enable them to carry out sustained and concerted military operations. As
per August 2012, WOL has gained control over some towns39 and 12 districts,40 making them
capable to carry out sustained and concerted military operations.

B. Nexus between NIAC and all Counts

13. As previously highlighted in Katanga, the situation of armed conflict affected the
perpetrators’ decision to commit the crime.41 Here, NIAC played an important role for the
Suspect, through her subordinates42 [as the combatants],43 in committing the alleged crimes44
to serve the ultimate goal of Fodavan military operations.45 Thus, it establishes the nexus
between NIAC and all Counts per se.46

THE SUSPECT’S AWARENESS OF NIAC47

14. The Suspect was fully aware about this situation, since:

a. She acted as the Commander-in-Chief of the Fodavan forces,48 and

b. She herself imposed military measures against WOL fighters.49

                                                                                                                       
39
Problem, ¶¶12,16.
40
Ibid, ¶11.
41
Katanga, ICC-01/04-01/07-717, ¶380.
42
Problem, ¶¶15,18.
43
Additional Protocol I, (1977) art.43(2) [AP-I].
44
Kunarac, IT-96-23&23/1-A, ¶¶58-59.
45
Katanga, ICC-01/04-01/07, ¶382.
46
LEE at 120-121.
47
EOC, art.8(2)(e)(iv) ¶5, art.8(2)(e)(i) ¶5, art.8(2)(c)(i)-3 ¶5.
48
Problem, ¶¶1,6.
49
Ibid, ¶¶14,17.
6
 SPECIFIC EOC

COUNT 1 – ATTACK ON THE CAVE TEMPLES

ARTICLE 8(2)(E)(IV) STATUTE

A. The Suspect directed the attack on the Cave Temples50

15. In Al Mahdi, the element of “directing an attack” encompasses any acts of violence
against protected objects and will not make a distinction as to whether it was carried out in
the conduct of hostilities or after the object had fallen under the control of an armed group.51

16. Fittingly, the Suspect’s direction to attack the Cave Temples can be inferred from her
proclamation on Fodavan national radio that “the Tyrians will get what’s coming to them!
Our forces will lay waste to their city and hit them where it hurts”.52 This was further
materialised when she agreed and signed an order drafted by Gen. Rambeck to “uproot the
Starlight fighters” by launching an attack on the Cave Temples.53 Consequently, the Cave
Temples is completely destroyed.54

B. The Cave Temples is a protected building55

17. Prosecution contends that the Cave Temples is qualified as (1) a building dedicated to
historical and religious purposes (2) that should be protected under International
Humanitarian Law (“IHL”).

                                                                                                                       
50
EOC, art.8(2)(e)(iv) ¶1.
51
Al Mahdi, ICC-01/12-01/15-171, ¶15.
52
Problem, ¶12.
53
Ibid, ¶14.
54
Ibid, ¶15.
55
EOC, art.8(2)(e)(iv) ¶2.
7
 1. The Cave Temples is a historical monument and religious building

18. As described in Al Mahdi,56 the term of “historical monument” is inseparable with the
notion of “cultural property”57 and “world heritage site”.58 In that regard, the UNESCO had
designated the Cave Temples as part of the UNESCO World Heritage Site.59 Furthermore,
the Cave Temples is also recognised as the oldest landmark in Fodava that have encouraged
many tales, literature, art and music for the last 1,300 years since its inception.60 Thus, it can
be considered as a historical monument.

19. Moreover, the Cave Temples shall also be considered as a building with religious
character or as a place of worship that constitute spiritual heritage of peoples.61 This was
proven by the fact that the Cave Temples is an important religious site for Starlight Path
believers62 that remains functioned normally until the Suspect attacked it.63

2. Therefore, the Cave Temples should be protected under IHL

20. Just like civilian objects, 64 buildings with historical and religious character are
protected and should not be the object of the attack,65 unless it can be waived on the basis of
imperative military necessity.66 In this context, the necessity test may applies whenever

                                                                                                                       
56
Al Mahdi, ICC-01/12-01/15-171, ¶46.
57
THP-II, art.1(b); Convention for the Protection of Cultural Property in the Event of Armed
Conflict, (1954) art.1(a) [THC].
58
Convention concerning the Protection of the World Cultural and Natural Heritage, (1972)
art.1 [WHC].
59
Problem, ¶4.
60
Ibid.
61
AP-II, art.16.
62
Problem, ¶4.
63
Ibid, ¶13.
64
AP-I, art.52(1).
65
Ibid, art.53; AP-II, art.16; THC, art.2,4(1); THP-II, art.15(1)(a); WHC, art.4.
66
THC, art.4(2); THP-II, art.6(a)-(b).
8
cultural property has been functioned for military advantages,67 thus altering their status as a
military objective.68

21. In Prosecution’s view, the Cave Temples shall be regarded as a protected object that
should not be the object of the attack. The rationale behind this is because the Cave Temples
remained functioning normally for Starlight Path religious activities during the conflict,69
notwithstanding of the presence of WOL fighters in carrying weaponry into the Cave
Temples70 whilst manifesting their faith as Starlight followers.71

22. Furthermore, the fact that there was counter-fired from WOL fighters from the
vicinity of the Cave Temples72 will not negate the protection status of that building, since
these fighters are attempting to defence their religious site as well as to protect those unarmed
visitors and tourists73 inside the Cave Temples.

23. Accordingly, these circumstances will therfore not alter the protected status of the
Cave Temples into a military objective that giving effective contribution for WOL’s military
operation at large.

C. The Suspect was intended the Cave Temples to be the object of the attack74

24. Prosecution contends that the Suspect has a direct intent (dolus directus in the first
degree)75 to commit this crime because she knew that her approval towards an order drafted
by Gen. Rambeck to “uproot the Starlight fighters” by launching an attack on the Cave

                                                                                                                       
67
THP-II, art.6(a)(i).
68
AP-I, art.52(2).
69
Problem, ¶13.
70
Ibid.
71
Ibid, ¶10.
72
Ibid, ¶15.
73
Ibid, ¶4.
74
EOC, art.8(2)(e)(iv) ¶3.
75
Gombo, ICC-01/05-01/08-424, ¶358.
9
Temples76 would resulted to the commission of this crime,77 particularly giving consideration
to the fact that during the emergency meeting that a religious advisor has reminded her with
the importance of the Cave Temples as the centre of the Starlight Faith and spiritual pillar of
Starlight believers.78

                                                                                                                       
76
Problem, ¶14; Statute, art.30(2)(a).
77
Statute, art.30(2)(b).
78
Problem, ¶14.
10
 COUNT 2 – BOMBING IN OSSO’S SUBURBAN AREAS
ARTICLE 8(2)(E)(I) STATUTE

A. The Suspect directed the attacks in Osso’s suburban areas79

25. The Suspect is prohibited to direct80 an attack,81 as part of State or organisational

policy,82 against civilian population under IHL.83 This direction requires that population to be
the “primary object” of the attack rather than “an incidental target of the attack”.84 Moreover,
to direct an attack, the order can be made either explicitly or implicitly.85

26. In the instant case, as part of Fodavan national policy, the Suspect has implicitly
ordered the Fodavan military forces to attack civilian population in the Osso’s suburban areas
by authorising its troops through national television on 18 August 2012 to “attack any person,
group or building that is found to support the WOL in any way”.86 This direction indicates
that those who indirectly support WOL fighters are legitimate targets of the attack.
Consequently, according to the report from a prominent international organisation on 30
September 2012, Fodavan forces’ indiscriminate bombings87 have led to 150 casualties and
300 injuries among Starlight civilians,88 as well as caused several suburban buildings and a
power plant in the areas are severely damaged.89

                                                                                                                       
79
EOC, art.8(2)(e)(i) ¶1.
80
ZIMMERMANN, ¶2162.
81
AP-I, Art 49 (1); Galić, IT-98-29-T, ¶141.
82
Statute, art.7(2)(a).
83
AP-I, Art.51(2),85(3)(a); ZIMMERMANN, ¶1938.
84
Gombo, ICC-01/05-01/08-424, ¶76.
85
Blaskić, IT-95-14-T, ¶281.
86
Problem, ¶17.
87
AP-I, art.51(4),(5)(a).
88
Problem, ¶20.
89
Ibid, ¶19.
11
B. The object of the attack is a civilian population90

27. Civilian population comprises all persons who are civilians as opposed to members of
armed forces and other legitimate combatant.91 This population is protected and should not be
the object of the attack, unless they took direct part in hostilities.92 As in the present case, the
Suspect is prohibited to attack those located in Osso suburban areas because they are civilians
that took no direct part in hostilities, since this population demonstrates no (1) threshold of
harm that would likely resulting from the act, (2) relationship of direct causation between the
act and the expected harm, and (3) belligerent nexus between the act and the hostilities
conducted between the warring parties.93 Should the Suspect hesitant with this population
participation in hostilities; the later shall be considered as civilian population.94

1. Threshold of harm

28. Threshold of harm occurs whenever there is an act that must be likely to adversely
affect the military operations or military capacity, or alternatively in the absence of military
harm, it might arise when such hostilities causing death, injury, or destruction towards the
protected persons or objects.95 There is no fact that indicates civilians’ conducts have caused
any harm neither to the Fodavan forces nor to other civilians in the areas.

2. Direct causation

29. Direct causation underscores a close causal relation between civilians’ acts and the
resulting harm. 96 In the instant case, there is no reference showing that the increasing

                                                                                                                       
90
EOC, art.8(2)(e)(i) ¶2.
91
AP-I, art.50(2); Gombo, ICC-01/05-01/08-424, ¶78.
92
AP-I, art.51(3); AP-II, art.13(3).
93
MELZER, Interpretive Guidance on the Notion of Direct Participation in Hostilities
Under International Humanitarian Law, (2009) at 46 [MELZER].
94
AP-I, art.50(1).
95
MELZER at 47-50.
96
Ibid at 51-58.
12
casualties of Fodavan soldiers from the WOL surprise attacks 97 and the movement of
homemade bombs materials in Rose Garden98 were corresponded to the civilian population
therein.

3. Belligerent nexus

30. Belligerent nexus requires the civilians’ acts are specifically designed to support the
warring parties and to the detriment of another.99 In the absence of threshold of harm and
direct causation, as enunciated supra,100 thereby it negates the existence of belligerent nexus
per se.

31. Conclusively, having no direct participation in hostilities, the civilian population in

Osso suburban areas should not be the objects of the attack. A mere fact that WOL fighters
are hiding among the population101 does not by itself alter the protection status of the later.102
This is because the notion of civilian population has been described as a population that is
“predominantly civilians”103 or mostly possessed civilians’ characteristic.

C. The Suspect was intended to attack civilian population in Osso suburban areas104

32. Prosecution asserts that the Suspect has an oblique intent (dolus directus in the second
degree)105 to commit this crime because she is aware that civilian population will be the
almost inevitable outcome of the bombings in Osso suburban areas in the ordinary course of
events.106 This was proven ex ante from her statement on Fodavan national television on 18
                                                                                                                       
97
Problem, ¶16.
98
Ibid, ¶18.
99
MELZER at 58-64.
100
Memorial, ¶¶28-29.
101
Problem, ¶16.
102
AP-I, art.50(3).
103
Krnojelac, IT-97-25-T, ¶56; Kaing, 001/18-07-2007/ECCC/TC, ¶305.
104
EOC, art.8(2)(e)(i) ¶3.
105
Gombo, ICC-01/05-01/08-424, ¶359.
106
Statute, art.30(2)(b).
13
August 2012 to “attack any person group or building […]”.107 Moreover, this fact also
corroborated ex post the attack when she made a statement on television that “regrettable loss
of civilian life […]” and “to achieve peace, war is inevitable, so is loss of life”. 108
Conclusively, these facts solidified Prosecution’s argumentation that she had an intention to
attack civilian population.

                                                                                                                       
107
Problem, ¶17.
108
Ibid, ¶19.
14
 COUNT 3 – TRANSFER OF STARLIGHT HOSPITAL’S MEDICAL PERSONNEL
ARTICLE 8(2)(C)(I) STATUTE

A. The Suspect has committed violence to life of the Starlight Hospital’s patients109

33. In Ntakirutimana, Dr. Ntakirutimana, a medical director at the Mugonero Hospital,

was indicted before the ICTR for committing violence to life since he had closing the medical
store, denying treatment to Tutsi patients and cutting off the utility supplies.110

34. In a similar vein, the Suspect [through her subordinate Col. Tomass] has committed
violence to life (in casu cruel treatment)111 by transferring 70 doctors and nurses from the
Starlight Hospital to Fodava military bases, and put young and less experience personnel to
treat the patients at the Starlight Hospital. Consequently, this has resulted in death of a lot of
hospitalised patients per se.

B. The Starlight Hospital’s patients were hors de combat and civilian taking no active
part in the hostilities112

35. Prosecution submits that the patients at the Starlight Hospital shall be categorised both
as (i) hors de combat and (ii) civilian taking no active part in the hostilities.

36. FIRST, hors de combat is a person that has been rendered unconscious or is
otherwise incapacitated by wounds or sickness, and therefore is incapable of defending
himself.113 The hospitalised WOL fighters should be categorised as hors de combat since they
have been injured from the airstrikes in Osso suburban areas.114

                                                                                                                       
109
EOC, art.8(2)(c)(i)-3 ¶1.
110
Ntakirutimana, ICTR-96-10-T & ICTR-96-17-T, ¶817.
111
GC I-IV, common art.3(1); cf. Kayishema, ICTR-95-1-T, ¶151.
112
EOC, art.8(2)(c)(i)-3 ¶2.
113
AP-I, art.1(2)(c).
114
Problem, ¶20.
15
37. SECOND, civilian patients that were hospitalised at the Starlight Hospital were also
civilians that took no direct part in hostilities during the attack in Osso suburban areas,115 as
enunciated supra.116

C. The Suspect knew the status of the Starlight Hospital’s patients117

38. The Suspect’s knowledge118 upon the status of the Starlight Hospital’s patients119 can
be inferred120 from the report of a respected international organisation which revealing the
numbers of casualties and injuries from the attack in Osso suburban areas.121

                                                                                                                       
115
Ibid.
116
Memorial, ¶¶27-31.
117
EOC, art.8(2)(c)(i)-3 ¶3.
118
Statute, art.30(3).
119
Memorial, ¶¶35-37.
120
Blaškić, IT-95-14-T, ¶307; Strugar, IT-01-42-T, ¶333.
121
Problem, ¶20.
16
 MODE OF LIABILITY

COUNT 1 – RESPONSIBILITY FOR CO-PERPETRATION

ARTICLE 25(3)(A) STATUTE

39. Applying the test in Dyilo,122 the Suspect is individually liable for committing war
crime in Count 1 that was taken jointly with another, since:

A. The existence of an agreement and common plan

40. To establish the existence of a common plan between the Suspect and other co-
perpetrators, this Court shall examine of to whether they were in contact with one another and
the nature of the contact and the relationship among them.123

41. Herein, there is a common plan between the Suspect and Gen. Rambeck, the regional
commander,124 to attack Cave Temples because the former had agreed and signed an order
drafted by the later as a result of an emergency meeting held on 12 September 2012.125

B. The Suspect provides an essential contribution

42. This Court underlines that an essential contribution lies when a person’s contribution
may activate the mechanisms that lead to the automatic compliance with that person’s orders
vis-à-vis the commission of the crimes.126

43. Without her role as Fodavan President,127 Commander-in-Chief of Fodavan forces,128

convenor of the emergency meeting,129 and her approval towards an order proposed by Gen.

                                                                                                                       
122
Dyilo, ICC-01/04-01/06-2842, ¶1018.
123
Ibid, ¶1024.
124
Problem, ¶13.
125
Ibid, ¶14.
126
Katanga, ICC-01/04-01/07-717, ¶525.
127
Problem, ¶6.
17
Rambeck,130 the attack on the Cave Temples will not happened at the first stage. Thus, it is
essential.

C. The Suspect was aware of the consequences of the attack

44. The Suspect is aware with the consequences of the attack, as established supra.131

D. The Suspect was aware with her essential contribution

45. The Suspect’s role for giving contribution above132 shall put her on notice that her
involvement is very essential.

E. The Suspect was aware with the condition of NIAC

46. The Suspect was aware of the NIAC nature during such operation.133

                                                                                                                                                                                                                                                                                                                                                                                 
128
Ibid, ¶1.
129
Ibid, ¶14.
130
Ibid.
131
Memorial, ¶24.
132
Ibid, ¶¶42-43.
133
Ibid, ¶14.
18
 COUNT 2 – RESPONSIBILITY FOR ORDERING
ARTICLE 25(3)(B) STATUTE

47. Taking into account the Court’s consideration in Mudacumura134 and Ntaganda,135
Prosecution contends that the Suspect is individually liable for Count 2 for we have satisfied
the following elements.

A. The Suspect is in a position of authority to attack civilian population

48. A person is holding a position of authority if the one is in a position of de jure or de

facto authority.136 Presently, as a legitimate elected President of Fodava,137 the Suspect is
holding a de jure status as a Commander-in-Chief of the Fodavan forces.138

B. The Suspect has instructed other person in committing the crime

49. The Suspect has issued an implicit139 and general140 instruction to her subordinate,141
Col. Tomass, a local Fodavan commander,142 vis-à-vis Fodavan forces to “attack any person,
group or building that is found to support the WOL” through a national television.143

C. The order had a direct effect on the commission of the attack

50. The Suspect’s order144 has caused a direct effect on the commission of the alleged
crime,145 which are the destruction of residential buildings in Rose Garden and a power plant,
                                                                                                                       
134
Mudacumura, ICC-01/04-01/12-1-Red, ¶63.
135
Ntaganda, ICC-01/04-02/06-309, ¶145.
136
Milošević, IT-98-29/1-A, ¶290; Kordić, IT-95-14/2-A, ¶28.
137
Problem, ¶6.
138
Ibid, ¶1.
139
Blaškić, IT-95-14-T, ¶281.
140
Mudacumura, ICC-01/04-01/12-1-Red, ¶65.
141
Karera, ICTR-01-74-A, ¶211.
142
Problem, ¶16.
143
Ibid, ¶17.
19
as testified by a survivor to the BBC.146 In addition to that, it also caused 150 deaths and 300
Starlight civilians injured, as recorded by an international organisation.147

D. The Suspect’s awareness of the execution of the order

51. The Suspect had a reason to know148 that the impact of her order will resulted to the
commission of the crime, as it has made to the international headline.149

                                                                                                                                                                                                                                                                                                                                                                                 
144
Memorial, ¶49.
145
Kayishema, ICTR-95-1-A, ¶186.
146
Problem, ¶19.
147
Ibid, ¶20.
148
Gombo, ICC-01/05-01/08-424, ¶434.
149
Problem, ¶19.
20
 COUNT 3 – COMMANDER RESPONSIBILITY
ARTICLE 28(A) STATUTE

52. The Suspect is superiorly responsible for the commission of Count 3, since:

A. The Suspect’s relationship with her subordinate

53. As a Commander-in-Chief of Fodavan forces,150 the Suspect has two levels down151
relationship with Col. Tomass, as a local commander.152

B. The Suspect’s awareness of the subordinate’s conduct

54. Gombo affirms that “should have known” element constitutes the commander’s duty
to acquire knowledge,153 or at least “had reason to know”154 for his subordinates’ illegal
conduct. In the case hand, Col. Tomass had claimed the successfulness of his mission for
transferring the Starlight Hospital’s medical personnel to the press.155 This fact shall put the
Suspect on notice about the conduct of her subordinate.156

C. The Suspect’s failed to take all necessary and reasonable measures

55. The Suspect takes no active steps157 to prevent this crime.158 In addition, she has also
failed to repress and submit159 Col. Tomass to the competent authority, for no investigation
nor prosecution been taken place.
                                                                                                                       
150
Problem, ¶1.
151
Strugar, IT-016-42-T, ¶361.
152
Problem, ¶16.
153
Statute, art.28(a)(i).
154
Gombo, ICC-01/05-01/08-424, ¶¶434,471.
155
Problem, ¶24.
156
Delalić, IT-96-21-T, ¶393.
157
Statute, art.28(a)(ii); AP-I, art.86(2),87.
158
Halilović, IT-01-48-T, ¶89.
159
Ibid.
21
 PRECLUSION OF LIABILITY
ARTICLE 31 STATUTE

56. Prosecution objects the Suspect’s argumentation on preclusion of her liability for
Count 1 on the basis of “intoxication”.160 A defence of intoxication cannot be applied when a
person intoxicated him/herself voluntarily. 161 Similarly, the Suspect has voluntarily
intoxicated herself by chewing Arbola Root prior the emergency meeting. 162 The
consumption of Arbola Root is mandatory strictly to parliamentary meetings, and not
emergency meeting for the executive bodies.163 Thus, the Suspect cannot hide under the
blanket of intoxication in committing the alleged crime.

                                                                                                                       
160
Statute, art.31(1)(b).
161
KITTICHAISAREE, International Criminal Law, (2001) at 262.
162
Problem, ¶14.
163
Ibid, ¶7.
22
 CONCLUSION

57. Wherefore, Prosecution respectfully requests the PTC to CONFIRM all charges and
COMMIT the Suspect to a Trial Chamber for trial on the charges as confirmed.164

[signed]

Office of the Prosecutor

Dated this Sunday, 6th November 2016

At The Hague, the Netherlands

                                                                                                                       
164
Statute, art.61(7)(a).
23