CarpioDefense

Prosecutor

v.

Shelly Duval

December 2019

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 TABLE OF CONTENTS

INDEX OF AUTHORITIES

STATEMENT OF FACTS

The Conflict between the Republic of Beshtea and the State of Tiktikels

The Republic of Beshtea and the State of Tiktikels are both located in the continent of
Gharl and are also among the Founding States of the Gharl Union (GU). Tegi, a cultural prov-
ince in Beshtea, is the center of the territorial dispute between the two countries. Tiktikels be-
lieves that Tegi was its territory until the said territory was given to Beshtea after they gained
independence from colonial powers in 1965.

The Creation of the Tegi Liberation Organization (TLO)

More than eighty (80) percent of the inhabitants of the Province of Tegi are of the
Owver religion, which is also the majority religion of Tiktikels. Because of some perceived
discrimination committed against the people of Tegi by the Beshtean government, the clamor
for liberation arose among the youths of Tegi which then led to the formation of the Tegi Lib-
eration Organization (TLO).

The Attacks in the Closed Community Hall

The Attacks in the Pinky Shrine

The Detention of Persons in the Old Building Commented [J1]: *Improve draft. Substantiate the state-
ment of facts

SUMMARY OF PLEADINGS

First, the case brought before the Trial Chamber is admissible pursuant to Article 19 of the
ICC Statute.

Second, the conflict between ____________________________

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 Third, Colonel Shelly Duval is not criminally liable, whether as an individual, jointly
with another or through another person, for the crime against humanity of extermination with
respect to the acts committed at the community hall on 2 November 2016.

Fourth, Colonel Shelly Duval is not criminally liable for the war crime of intentionally
directing the 28 December 2016 attack against the Pinky Shrine on the basis of individual
criminal responsibility for ordering, soliciting or inducing the commission of the said crime.

Fifth, Colonel Shelly Duval is not guilty of the war crime of torture, on the basis of
command responsibility, with respect to the treatment of persons who were arrested on 28 De-
cember 2016 and detained in the old building.

PLEADINGS

I. PRELIMINARY MATTERS

A. Admissibility of the case under the Rome Statute

The International Criminal Court (ICC) shall have jurisdiction, complementary to na-
tional criminal jurisdiction1, over the most serious crimes of concern to the international com-
munity as a whole provided that: (1) the State is a Party of the Statute2; and (2) the State is
unable or unwilling to carry out the investigation or prosecution.3

In this case, it is not disputed that Beshtea is a State Party to the Statute. However, what
remains to be settled is the question as to whether Beshtea is unable or unwilling to carry out
the investigation or prosecution. Here, it appears that Beshtea is not willing to conduct the
prosecution based on series of events. First, the government, due to its own reluctance, did not
proceed with its investigation on the matter of the conditions of detention in the old building

1 Statute, Preamble, ¶10.

2 Statute, art. 12(1).
3 Statute, art. 17(1)(a).

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located in the eastern suburb of Ashanti.4 Second, the Beshtean authorities did not initiate the
prosecutions even after agreeing to do the same due to the pressures coming from the GU, the
new State of Tegi, and the international community.5

B. Nature of the conflict

There is an international armed conflict when two or more States recourse to war or any
other conflict involving arms, or when a State occupies the territory of another, including situ-
ations where people are fighting against colonial domination and alien occupation and against
racist regimes in the exercise of their right of self-determination. Furthermore, there can be a
case of an international armed conflict within a territory of a State if another State intervenes
in the internal conflict.6

C. Standard of Proof

It is the Prosecution that shall provide sufficient evidence to establish each crime
charged, as well as to provide any documentary or summary evidence to support the same.7

II. CRIME AGAINST HUMANITY OF EXTERMINATION

Colonel Shelly Duval is not criminally liable, whether as an individual, jointly with
another or through another person, for the crime against humanity of extermination with respect
to the acts committed at the community hall on 2 November 2016.

There is a crime against humanity through extermination when there is intentional in-
fliction of conditions of life calculated to bring about the destruction of part of a population as
part of a widespread or systematic attack directed against any civilian population.

4 Facts, ¶30.
5 Facts, ¶32.
6 Prosecutor v. Dusko Tadic, IT-94-1-A (1999), ¶84
7 Statute, art. 61(5).

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A. There was no widespread or systematic attack directed against a civilian population

The 2 November 2016 deployment of Beshtean military personnel under the command
of Colonel Duval was made pursuant to a reliable intelligence report that a meeting between
TLO cadres and their leaders was being held in the community hall located in Ashanti City.8
In this case, prior to the incident on 2 November 2016, the Beshtean authority only
conducted operations to defend the Beshtean government against the attacks from Tegi Liber-
ation Organization (TLO) activists.

On the day of the alleged attack, the Beshtean military did not fire discriminately
against the civilians as the firing only commenced after a gunfire from one of the gates of the
community hall occurred. In addition, the incident happened at nighttime hence civilians were Commented [J2]: *double check spacing

no longer expected to remain in the said hall.9

Also, in this case, the number of civilian deaths during the assailed day of attack, if any,
does not indicate an intent on the part of the Beshtean government to destroy a part of the
population and the same cannot be confirmed with certainty due to conflicting reports.10

Based on the above circumstances, the attack that happened in the community hall on
2 November 2016 was not directed against civilian population and neither was it widespread
nor organized systematically.11

B. There is an absence of the mental element

On 02 November 2016, Colonel Duval commanded the military personnel pursuant to

a reliable intelligence report to proceed to the community hall where TLO activists and their

8 Facts, ¶14.
9 Facts, ¶14.
10 Facts, ¶14-15.
11 The Prosecutor vs. Vojislav Šešelj, IT-03-67-T (March 31, 2016), ¶192.

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leaders hold their meeting in the dark hours.12

In this case, the President of Beshtea declared publicly the need to fight against immi-
nent threats which not only affect the security and integrity of the state but also the innocent
lives of the Tegi people.13

In this case, the occupants of the community hall were ordered by the military personnel
to surrender. Moreover, were it not for the gunfire from one of the gates of the hall, the military
personnely would have not retaliated. Commented [J3]: *double check typographical error

With the above in mind, Colonel Duval had no knowledge that: there were civilians
inside the community hall; there was any plan, from his superior, of a widespread and system-
atic attack against the civilian population; that there will be gunfire involved. There was also
no showing that he intended to end civilian lives.

III. WAR CRIME OF INTENTIONALLY DIRECTING AN ATTACK AGAINST A

BUILDING DEDICATED TO RELIGION

Colonel Shelly Duval is not criminally liable for the war crime of intentionally directing
the 28 December 2016 attack against the Pinky Shrine on the basis of individual criminal re-
sponsibility for ordering, soliciting or inducing the commission of the said crime.

The war crime against protected buildings require that it is committed as part of a plan
or policy or as part of a large-scale commission of such crime.14 Specifically, it should be an
intentionally direct attack against the protected building which violates the laws and customs
applicable in international armed conflict, within the established framework of international
law.

A. Lack of the mental element to attack the building dedicated to religion

12 Facts, ¶14.
13 Facts, ¶11.
14 Statute, art. 8(1).

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 On the basis of a received intelligence information that TLO leaders are discussing with
members of the Tiktikelian armed forces in the Pinky cafe, Colonel Duval ordered the Beshtean
soldiers to immediately approach Pinky Cafe and attack only the TLO leaders without causing
panic among the people in the area. Unexpectedly, upon the arrival of the forces near the target Commented [J4]: *double check spacing

cafe, a whistle was blown and people from the cafe fled to the Pinky Shrine.15

The requisite of mens rea for the destruction or devastation of property is intent.16 Here,
it can be inferred that Colonel Duval ordered a carefully planned attack against the TLO leaders
only in the Pinky Cafe. Thus, the unexpected attack by the military men, in response to the
gunfire inside the shrine, was not intended by Colonel Duval.

IV. WAR CRIME OF TORTURE

Colonel Shelly Duval is not guilty of the war crime of torture, on the basis of command
responsibility, with respect to the treatment of persons who were arrested on 28 December 2016
and detained in the old building.

There is war crime of torture when it is committed as part of a plan or policy or as part
of a large-scale commission of such crime against persons or property protected under the pro-
visions of the relevant Geneva Conventions of 12 August 1949.

CONCLUSION/PRAYER FOR RELIEF

Based on the rules and evidence stated above, it is respectfully requested before this
Honorable Chamber to adjudge and declare that the charges against Colonel Shelly Duval be
not confirmed.

RESPECTFULLY SUBMITTED,

Counsel for the Defense

15 Facts, ¶21.
16 Posecutor v. Radoslav Brđanin, IT-99-36-T (2004), ¶192.

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