SUMMARY OF PLEADINGS

I. COL. POTTER IS DIRECTLY LIABLE FOR HIS OWN ACTS OTHERWISE INDIRECTLY
LIABLE FOR THE ACTS OF HIS SUBORDINATES UNDER THE DOCTRINE OF
COMMAND RESPONSIBILITY

II. THE ACTS ALLEGED CONSTITUTE THE FOLLOWING WAR CRIMES

A. WAR CRIME OF ATTACKING CIVILIANS

1. Col. Potter directed an attack on Luga, Arkadia;

2. The object of the attack was civilians although not taking direct part in hostilities;

3. There was intention to commit such attack;

4. There was an International Armed Conflict between Arkadia and Slovia;

5. Col. Potter was aware of the existence of an armed conflict.

B. WAR CRIME OF EXCESSIVE INCIDENTAL DEATH, INJURY, OR DAMAGE

1. Col. Potter Launched an Attack on Luga, Arkadia.

2. The attack was such that it would cause incidental death or injury to civilians or
damage to civilian objects or widespread, long-term and severe damage to the natural
environment and that such death, injury or damage would be of such an extent as to be clearly
excessive in relation to the concrete and direct overall military advantage anticipated;

3. Col. Potter has knowledge of the effects of such attack;

4. There was an International Armed Conflict between Arkadia and Slovia;

5. Col. Potter was aware of the existence of an armed conflict.

C. WAR CRIME OF EMPLOYING WEAPONS, PROJECTILES AND MATERIAL AND

METHODS OF WARFARE IN VIOLATION OF THE INTERNATIONAL LAW OF ARMED
CONFLICT
 1. Col. Potter launched an attack.

2. The attack was such that it would cause superfluous injury or unnecessary suffering or
which are inherently indiscriminate in violation of the International Law of Armed Conflict.

3. The use of such weapons, projectiles and material and methods of warfare are not
justified under military necessity.

PLEADINGS

The criminal liability under the Rome Statute (“the Statute”) arises when the acts alleged
amount to crimes cognizable by the Court,1 and attributable to the accused.2 As will be shown,
the acts of the Stovian Armed Forces (SAF) and the Stovikan People’s Liberation Front (SPLF)
militia – attributable to Colonel Ramsey Potter – amount to (A) the War Crime of Attacking
Civilians, (B) the War Crime of Excessive Incidental Death, Injury, or Damage, and (C) the War
Crime of Employing Weapons, Projectiles or Materials or Methods of Warfare Listed in the
Annex to the Statute.

I. COL. POTTER IS DIRECTLY LIABLE FOR HIS OWN ACTS OTHERWISE

INDIRECTLY LIABLE FOR THE ACTS OF HIS SUBORDINATES UNDER THE
DOCTRINE OF COMMAND RESPONSIBILITY.

A. COL. POTTER’S INDIVIDUALLY LIABILITY

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.3 Colonel Potter shall be liable for the directions and orders
he made during the offensive in Luga, Arcadia.

1
Statute, Arts. 5, 8.
2
Statute, Arts. 25, 28.
3
Statute, Art. 25(3)(b)
 B. COL. POTTER IS LIABLE FOR THE ACTS OF THE SAF AND THE SPLF
MILITIA PURSUANT TO THE DOCTRINE OF COMMAND RESPONSIBILITY

To hold a person criminally responsible under the concept of command responsibility for
an international crime, three legal elements4 must be met:

1. The existence of a superior-subordinate relationship between the accused as

superior and the perpetrator of the crime;

The SAF units were under the effective control of Colonel Potter when they committed
the acts alleged. Colonel Potter was the one charged to lead the SAF’s military offensive in
Luga.5 Therefore as their commander, Colonel Potter had the authority to direct, prevent, and
punish the acts of the SAF.

The SPLF militia was also under the effective control of Colonel Potter when they
committed the acts alleged. Rencon, the leader of the SPLF militia was part of the meeting
organized by Colonel Potter regarding the military offensive against the Arkadian Forces. 6 The
SPLF militia was acting under the directions and orders of Colonel Potter who actually devised
the plan and details of the attack.

2. The superior knew or had reason to know that the crime was about to be or had
been committed;

A superior’s actual knowledge cannot be presumed, but it may be established through

circumstantial evidence.7 Colonel Potter, who is also in the field during the offensive in Luga,
cannot disclaim knowledge of the acts of his subordinates. During the offensive in Luga,
Liutenant Rees constantly reports the status of his units and the SPLF militia to Colonel Potter.
In any event, he had reason to know the crimes committed, since throughout the course of the

4
Prosecutor v. Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004
5
Compromis, 21
6
Compromis, 22
7
The Prosecutor v. Stanislav Galic´, IT-98-29, Trial Chamber, Judgement of 5 December 2003,
para. 174
hostilities, there were numerous news reports from local media and Arkadian NGO’s regarding
the heavy civilian casualties and extensive damage to the town.8

3. The superior failed to take the necessary and reasonable measures to prevent the
criminal acts or punish the perpetrators thereof.

No preventive measures were done by Colonel Potter to avoid the commission of the
alleged acts and to minimize civilian casualties. In fact, he even impliedly tolerated such acts
when he said that civilian casualties could not be avoided during a conflict. 9 Further, fully aware
that the objective of SPLF militia was to take revenge over the violence perpetrated against
Stovikans in Arcadia, Colonel Potter still allowed the SPLF militia to take up arms and join the
offensive in Luga.10 The active participation of the SPLF militia clearly prejudiced the purpose of
Stovia’s offensive in Luga to merely neutralize the threat posed by Arkadian forces. Aside from
that, Colonel Potter also failed to investigate and punish the perpetrators. All he did was to refute
all the allegations in a press conference without conducting any inquiry.11

II. THE ACTS ALLEGED CONSTITUTE THE FOLLOWING CRIMES UNDER THE
ROME STATUTE

A. INTENTIONALLY DIRECTING ATTACKS AGAINST THE CIVILIAN

POPULATION AS SUCH OR AGAINST INDIVIDUAL CIVILIANS OF ARKADIA NOT
TAKING DIRECT PART IN HOSTILITIES.

The crime is present because of the following elements12:

1. Col. Potter directed an attack on Luga, Arkadia.

8
Compromis, 43
9
Compromis, 28
10
Compromis, 23
11
Compromis, 43
12
Statute, Art. 8(2)(b)(i), United Nations Doc. PCNICC/2000/1/Add.2 (2000)
 Article 49, Protocol I of the 1949 Geneva Convention defines "attacks" as acts of
violence against the adversary, whether in offense or in defense. In April 9, 2009, Colonel Potter
ordered the offensive attack in a small village of 500 inhabitants perched in the mountains
hanging over Luga.13 On April 14, the Lieutenant Rees’ units started firing towards Navista
temple, while the SPLF militia swept through the Old Town. 14 On April 18, Colonel Potter,
satisfied with the taking over of the Old Town, ordered Lieutenant Rees to continue the offensive
in Mundo Valley.15 On April 20, upon recommendation of Lieutenant Rees, Colonel Potter
requested air-strikes in Mundo.16
2. The object of such attack was a civilian population as such or individual civilians
not taking direct part in hostilities.

Protocol I of the Geneva Convention affords general protection to civilian population and
individual civilians against dangers arising from military operations. And to give effect to this
protection, it further provides that the civilian population as such, as well as individual civilians,
shall not be the object of attack.17

a. SAF AND SPLF MILITIA VIOLATED THE PRINCIPLE OF DISTINCTION

Under the principle of distinction, the Parties to the conflict shall at all times distinguish
between the civilian population and combatants and between civilian objects and military
objectives and accordingly shall direct their operations only against military objectives. 18 A
civilian is a person who is not member of the armed force, 19 while a civilian population
comprises all persons who are civilians. Civilian population is not deprived of its categorization
by the presence of individuals who do not come within the definition of civilians. 20 Hence, even

13
Compromis, 30
14
Compromis, 35
15
Compromis, 38
16
Compromis, 39
17
1977 Additional Protocol I to the 1949 Geneva Convention, Article 51(1),(2)
18
Ibid, Article 48
19
Ibid, Article 50
the existence of some military activities would not necessarily deprive the population of its
civilian character.

During the offensive in the mountain village of Luga, more than 100 civilians were killed
and injured, including 20 who were reportedly killed while fleeing the village. 21 The fact that the
persons were killed while fleeing the village indicates that they were civilians with no means of
defending themselves. There were also reported incidents where civilians had been directly
attacked by SPLF militia while combing the area of Old Town. 22 Furthermore, more than 500
civilians were either killed or were seriously injured when the airstrikes deliberately targeted the
residential areas in Mundo Valley.23

b. THE CIVILIANS WERE NOT TAKING DIRECT PART IN HOSTILITIES

In order to avoid the erroneous or arbitrary targeting of civilians entitled to protection

against direct attack, it is therefore of particular importance that all feasible precautions be taken
in determining whether a person is a civilian and, if so, whether he or she is directly participating
in hostilities. In case of doubt, the person in question must be presumed to be protected against
direct attack.24

The Inter-American Commission on Human Rights has stated that the term “direct
participation in hostilities” is generally understood to mean “acts which, by their nature or
purpose, are intended to cause actual harm to enemy personnel and materiel”. 25 Civilians whose
activities merely support the adverse party’s war or military effort or otherwise only indirectly

20
Ibid, Article 50(3)
21
Compromis, 30
22
Compromis, 36
23
Compromis, 40
24
Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities:Under
International Humanitarian Law, International Committee of the Red Cross (ICRC)
25
Inter-American Commission on Human Rights, Third report on human rights in Colombia
p.811
participate in hostilities cannot on these grounds alone be considered combatants. 26 Hence, the
SAF’s statement27 that those alleged to have been killed while trying to flee had been identified
as Arkadian Armed Forces (AAF) soldiers and that among them are some local villagers who
were helping them to flee is unacceptable. The act of fleeing obviously cannot be intended to
cause actual harm to the SAF.

c. THE ATTACK WAS DIRECTED INDISCRIMINATELY TO BOTH

COMBATANTS AND NON-COMBATANTS

Apparently disproportionate attacks may give rise to the inference that civilians were
actually the object of attack and one type of indiscriminate attack violates the principle of
proportionality. 28 This principle prohibits an attack which 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.29

The following circumstances show that SAF and SPLF militia’s attacks were
disproportionate: the killings of civilians while trying to flee30; the use of heavy artillery weapons
in densely populated areas31; and the air-strikes deliberately targeting residential areas.32

3. Col. Potter, the SAF and the SPLF militia intended the civilian population as such
or individuals not taking direct part in hostilities to be the object of the attack.

It is argued that the more encompassing formulation of the test of directing attacks
against a civilian population engages the question whether the civilian population was

26
Ibid.
27
Compromis, 30
28
The Prosecutor v. Stanislav Galic´, IT-98-29, Trial Chamber, Judgement of 5 December 2003,
para. 60.
29
Article 51(5)(b) of Additional Protocol I
30
Compromis, 30
31
Compromis, 35
32
Compromis, 40
intentionally targeted. It should not be limited to asking whether they were primarily targeted.33
Although the primary target of the SAF was the military of Arkadia, circumstances show
that the civilians were intentionally targeted. The intention of Colonel Potter is shown when he
said that civilian casualties could not be avoided during a conflict. 34 Having knowledge on IHL,
Colonel Potter could be aware of several measures and precautions in distinguishing civilians
form combatants but still he failed to do so. Further, it was only in the last phase of the attack in
Mundo Valley that Colonel Potter reminded his staff to take measures to minimize civilian
casualties; the reason thereof is the fact that Mundo Valley was mostly populated by their fellow
Stovikans.35 This unequal treatment between Arkadian and Stovikans with respect to
precautionary measures of preventing civilian casualties clearly shows Colonel Potter’s intention
to make the Arkadian civilians to be the object of the attacks.

The SPLF militia’s intention, on the other hand, was shown by the statement of Fred
Rencon, that their objective in joining the SAF was to take revenge against the Arkadians. 36
Hence, it is not only possible, but also highly probable that SPLF militia intended to make the
Arkadian civilian the object of the attack.

4. The conduct took place in the context of and was associated with an international
armed conflict between Arkadia and Stovia.

It is indisputable that an armed conflict is international if it takes place between two or

more States.37 By virtue of common Article 2(1), the 1949 Geneva Conventions apply to ‘all
cases of declared war or of any other armed conflict which may arise between two or more of the
High Contracting Parties, even if the state of war is not recognized by one of them’. The ‘High
Contracting Parties’ mentioned in this text are sovereign entities. Arkadia, after having gained
independence from Cascadia in 2001, have been considered a sovereign state since then. The

33
Chile Eboe-Osuji, Crimes Against Humanity: Directing Attacks Against A Civilian Population,
African Journal of Legal Studies
34
Compromis, 28
35
Compromis, 41
36
Compromis, 23
37
Prosecutor v Tadic, IT-94-1-A, July 15, 1999, (Appeals Chamber) par. 84
international armed conflict between Arcadia and Stovia started in October 2008 when cross-
border skirmishes between the two states escalated due to the conflict regarding the use of Port
Yukon even if neither Arcadia nor Stovia characterized the incidents as part of an armed
conflict.38

5. Col. Potter, the SAF and the SPLF militia were aware of factual circumstances
that established the existence of an armed conflict.

On April 1, 2009, Colonel Potter charged by the Commander-in-chief of the SAF to lead
Stovia’s military offensive in Luga.39 In April 9, 2009, Colonel Potter led the offensive by
advancing towards mountainous border area around Luga where they captured an Arkadian
border control post.40 From that point when they committed acts in its furtherance, Colonel Potter
and his units were deemed aware of the factual circumstances that established the existence of an
armed conflict.

B. INTENTIONALLY LAUNCHING AN ATTACK IN THE KNOWLEDGE THAT

SUCH ATTACK WILL CAUSE INCIDENTAL LOSS OF LIFE OR INJURY TO
CIVILIANS OR DAMAGE TO CIVILIAN OBJECTS

The crime is present because of the following elements41:

1. Col. Potter launched an attack on Luga, Arkadia.

Col. Potter launched an attack on Luga, specifically the industrial area 42, the Old Town43,
and the Mundo Valley.44

38
Compromis, 19
39
Compromis, 21
40
Compromis, 29
41
Statute, Art. 8(2)(b)(iv), United Nations Doc. PCNICC/2000/1/Add.2 (2000)
42
Compromis, 31
43
Compromis, 35
44
Compromis, 38
 2. The attack was such that it would cause incidental death or injury to civilians or
damage to civilian objects or widespread, long-term and severe damage to the natural
environment and that such death, injury or damage would be of such an extent as to be
clearly excessive in relation to the concrete and direct overall military advantage
anticipated.

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.45
It is a rule that in any armed conflict, it is prohibited to employ weapons, projectiles and
material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering
and to employ methods or means of warfare which are intended, or may be expected, to cause
widespread, long-term and severe damage to the natural environment.46 It is also prohibited to
attack, destroy, remove or render useless objects indispensable to the survival of the civilian
population.47
Care shall also be taken in warfare to protect the natural environment against widespread,
long-term and severe damage.48 Works or installations containing dangerous forces shall not be
made the object of attack, even where these objects are military objectives, if such attack may
cause the release of dangerous forces and consequent severe losses among the civilian
population.49
It is also prohibited to commit any acts of hostility directed against historic monuments,
works of art or places of worship which constitute the cultural or spiritual heritage of peoples,
and to use them in support of the military effort. 50 The 2nd protocol 1954 Hague Convention on
45
Jean-Marie Henckaerts and Louise Doswald-Beck, International Humanitarian Law, Volume I:
Rule 15.
46
1977 Additional Protocol I to the 1949 Geneva Convention, Article 35(2)(3)
47
Ibid, Article 54(2)
48
Ibid, Article 55(1)
49
Ibid, Article 56(1)
50
Ibid, Article 16
Protection of Cultural Property in the Event of Armed Conflicts prohibits the launching of any
attack which may be expected to cause incidental damage to cultural property protected under
Article 4 of the Convention which would be excessive in relation to the concrete and direct
military advantage anticipated.
Colonel Potter violated the above international law provisions:
(a) When his units started to shell the industrial area hitting the oil refinery and the
chemical plants. As a result, large number of people living near including factory workers were
killed.51 Also, the United Nations Environment Programme(UNEP) came out with preliminary
reports predicting a long-term impact of the spills of chemical substances on the environment
and on the water supply;52
(b) When his units attacked and damaged the Old town’s ancient temples particularly the
15th century religious shrine, the Navista. 53 Since 2003, the Navista and the ancient temples have
been designated as a world heritage site by UNESCO and have been registered on the list of
cultural property under the 2nd protocol 1954 Hague Convention on Protection of Cultural
Property during Armed Conflicts;54 and
(c) When he requested the air-strikes which deliberately targeted the nearby residential
areas in Mundo Valley.55 At least 500 civilian were killed and hundreds seriously injured. 56
Airstrikes are weapons and method whose prohibition is based on their inability to distinguish
between civilians and combatants.57
3. Col. Potter knew that the attack would cause incidental death or injury to
civilians or damage to civilian objects or widespread, long-term and severe damage to the
natural environment.

51
Compromis, 31
52
Compromis, 32
53
Compromis, 35
54
Compromis, 25
55
Compromis, 39
56
Compromis, 40
57
The Legal Regime of the ICC, p.555
 “Knowledge” means awareness that a circumstance exists or a consequence will occur in
the ordinary course of events.58 Being an experienced military commander with basic knowledge
of International Humanitarian Law59, Colonel Potter cannot be ignorant of the consequences of
such attack.
4. The conduct took place in the context of and was associated with an international
armed conflict between Arkadia and Slovia.

As stated, the international armed conflict between Arcadia and Stovia started in October
2008 when cross-border skirmishes between the two states escalated due to the conflict regarding
the use of Port Yukon even if neither Arcadia nor Stovia characterized the incidents as part of an
armed conflict.60

5. Col. Potter was aware of factual circumstances that established the existence of an
armed conflict.

As stated, when Colonel Potter and his units committed acts in furtherance of the armed
conflict, they were deemed aware of the factual circumstances that established its existence.

C. EMPLOYING WEAPONS, PROJECTILES AND MATERIAL AND METHODS

OF WARFARE WHICH ARE OF A NATURE TO CAUSE SUPERFLUOUS INJURY OR
UNNECESSARY SUFFERING OR WHICH ARE INHERENTLY INDISCRIMINATE IN
VIOLATION OF THE INTERNATIONAL LAW OF ARMED CONFLICT.61

1. Col. Potter launched an attack.

Colonel Potter ordered to continue the offensive against the AAF in the Mundo Valley by
the launching of air strikes.62 Air strikes in armed conflicts are serious attacks and used as

58
Statute, Article 50 (3)
59
Compromis, 21
60
Compromis, 19
61
Statute, Art. 8(2)(b)(xx), United Nations Doc. PCNICC/2000/1/Add.2 (2000)
62
Compromis, 39
weapons of mass destruction.63 The air strikes involved the use of cluster munitions as large
quantities of unexploded bomblets were found is some residential areas. The burn marks found
on the bodies of the seriously injured civilians indicate the use of phosphorus.64

2. The attack was such that it would cause superfluous injury or unnecessary
suffering or which are inherently indiscriminate in violation of the international law of
armed conflict.

a. USE OF CLUSTER MUNITIONS

The use of cluster munitions is banned in the customary rules of International

Humanitarian Law (IHL).65 “Cluster munition” means a conventional munition that is designed
to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes
those explosive submunitions.66 Airstrikes and cluster ammunitions are weapons and method
whose prohibition is based on their inability to distinguish between civilians and combatants. 67
The testimonies of a few surviving civilians that they saw quantities of unexploded bomblets in
some residential areas indicate the use of this weapon in the air-strike in Mundo Valley. 68 The
testimonies of the surviving civilians are of high probative value since they are the eye-witnesses
to the said war crime.

b. USE OF WHITE PHOSPORUS

63
Michel Bourbonniere and Ricky J. Lee, Legality of the Deployment of Conventional Weapons
in Earth Orbit: Balancing Space Law and the Law of Armed Conflict, The European Journal of
International Law Vol. 18 No. 5 EJIL 2008

64
Compromis, 40
65
38 Rule 85 of Customary Rules of IHL
66
Convention on Cluster Munitions, Art. 2
67
The Legal Regime of the ICC, p.555
68
Compromis, 40
 White phosphorus is toxic and its use can cause blistering to the skin and mucous
membranes, its effects are long term depending on the severity and length of exposure. 69 Article
35 of Geneva Protocol I of 1977 puts it thus: ‘it is prohibited to employ weapons, projectiles and
material and methods of warfare of a nature to cause superfluous injury or unnecessary
suffering.’ SAF already admitted the use of white phosphorus during the air-strikes though it
alleged that it was used only to shield advancing troops from artillery fire 70. However,
circumstances show that during the aerial attack, there were civilians seriously injured with
unusual burn marks on their bodies indicating the indiscriminate use of white phosphorus.

3. The use of such weapons, projectiles and material and methods of warfare are not
justified under military necessity
The use of such inherently indiscriminate weapons, projectiles and material and methods
of warfare which are of a nature to cause superfluous injury or unnecessary suffering are not
justified under rule on military necessity. Air-strikes which can discriminate civilians form
military objects could have been used than cluster munitions and white phosphorus. In any event,
to most commentators, military necessity has no place in international humanitarian law outside
the confines of specific exceptional clauses. 71 The relevant judicial decisions to date are also in
support of this view. 72

CONCLUSION AND PRAYER FOR RELIEF

Upon the foregoing facts and law, the Applicant respectfully prays that Colonel Potter be
held criminally liable under the Court’s Statute.

69
J. MacLeod and A.P.V. Rogers, The Use of White Phosphorus and the Law of War, Yearbook of
International Humanitarian Law Volume 10 - 2007 - pp. 75-97
70
Compromis, 40
71
Nobuo Hayashi, Requirements of Military Necessity in International Humanitarian Law and
International Criminal Law, 2010 (http://www.issafrica.org)
72
Ibid, citing United States v. List (Hostage), 11 Trials of War Criminals Before the Nuernberg
Military Tribunals Under Control Council Law NO. 10757, 1255-56, 1272, 1296 (1950); von
Manstein, supra note 38, at 512-13; In re Rauter, Annual Digest and Reports of Public
International Law Cases, supra note 38, at 526; In re Burghoff, Annual Digest and Reports of
Public International Law Cases, supra note 38, at 551, 554-57.