Jardeleza Prosecution

Prosecutor

v.

Colonel Shelly Duval

 Table of Contents

STATUTES, CONVENTIONS, AND OTHER LAWS........................................................3

STATEMENT OF FACTS......................................................................................................4

SUMMARY OF PLEADINGS................................................................................................6

PLEADINGS............................................................................................................................7

I. PRELIMINARY MATTERS...........................................................................................7

A. Duval’s case is admissible under the Rome Statute............................................................7

B. Nature of the conflict..............................................................................................................8

C. There is an international armed conflicting between Beshtea and Tiktikels....................9

II. CRIME OF EXTERMINATION................................................................................9

III. THE WAR CRIME OF INTENTIONALLY DIRECTING AN ATTACK

AGAINST A PLACE DEDICATED TO RELIGION........................................................11

A. Duval had knowledge of the hostilities between Beshtea and Tiktikels when he

executed his order of attack of the religious building...............................................................12

III. Duval’s command of attack of the Pinky café is not a military necessity......................12

IV . Duval’s liability for the war crime of torture...............................................................13

1. Civilians are granted protection against wars under the Geneva Convention...........13

2. Duval is liable for physical or mental pain or suffering against the Teginians.........13

CONCLUSION/PRAYER FOR RELIEF............................................................................15

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Page 3 of 15
STATUTES, CONVENTIONS, AND OTHER LAWS

1949 Geneva Conventions ( Pages 10, 13 and 14)

Elements of Crimes (BOOK)( pp. 12 and 14)

Rome Statute ( pages 7- 9 and 11)

Conventions for the Protection of Cultural Property in the Event of Armed Conflict

( pp. 12)

Second Protocol to the Convention for the Protection of Cultural Property in the Event

of Armed Conflict (1999) ( p. 14)

JURISPRUDENCE

Nicaragua v. United States of America), ICJ Reports (1986) ( p. 8)

Prosecutor vs Katanga  ICC-01/04-01/07 (2014) ( P. 8)
Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, (p.11)
Prosecutor v. Strugar, Judgment in the Trial Chamber II, IT-01-42-T (01.31.2005), ( p. 12)

BOOKS, JOURNALS, AND OTHER SOURCES

Benzing, The Complementarity Regime of the International Criminal Court:

International Criminal Justice between State Sovereignty and the Fight

against Impunity, 8 Max Planck Yearbook of United Nations Law

(2003)( p.7)

Solera, Complementary Jurisdiction and International Criminal Justice, 84

International Review of the Red Cross 845(2002) (p7)

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 STATEMENT OF FACTS

The Dispute between the Republic of Beshtean and the State of Tiktikels

Beshtea and Tiktikels were among the Founding States of the Gharl Union (GU). One
of the problems of that union is the territorial dispute between Beshtea and Tiktikels over the
province of Tegi in Beshtea. Tiktikels believes that Tegi is part of its territory; however, Tegi
was given to Beshtea after both states gained independence from colonial regime in 1965.
Thereafter, the dispute escalated to several armed confrontations from 1966 to 2007.

The Creation of the Tegi Liberation Organization

Some Teginians felt discriminated in Beshtea and that their culture and language are
constantly disrespected since they have a culture and religion which more similar with the
people of Tiktikels than the Beshteans. Due to their dissatisfaction to the Beshtean
government, several Teginians formed the Tegi Liberation Organization (TLO).

The Movement for Tegi’s Liberation

On April 10, 2016, the TLO held a conference in Ashtani and adopted a Plan which
for the independence and statehood for Tegi. After the following days, approximately two
thousand people gathered and marched in Ashtani for the support of the TLO. Following
these events, the spokesperson of Tiktikels extended its support by stating that would extend
moral and other forms of support to TLO and blaming the formation of TLO as the
consequence of the Beshtean government’s negligence.

Several reports revealed that the TLO was acquiring weapons from Tiktikels through
its border. Armed confrontations later ensued between the Beshtean forces and members of
the TLO in Ashtani.

On September 6, 2016, the Beshtea’s President made a televised announcement about

the deployment of Beshtean military forces under the command of Colonel Shelly Duval to
Tegi within the next three days.

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Attacks on the Community Hall and Pinky Cafe

Duval claimed that on November 2, 2016, armed TLO leaders were conducting a
meeting in the community hall of the northern suburban locality of Ashtani City. He added
they heard gunfire from a gate when they were about to surround it resulting to a 20 minute
exchange. On November 5, 2016, TLO released a statement, claiming that none of the top
leaders were at the meeting since it was convened in preparation for the upcoming festival of
the Owver religion.

On December 28, 2016, Duval ordered an attack against the TLO leaders who were
meeting in the Pinky Café which was next to the Pinky Shrine; Resulting to the death and
injury of a number of people, damage and destruction of the Shrine, holy grails, the massive
murals, and the wall. The next day, it was reported that nearly one hundred and fifty (150)
Teginian people were taken into custody while participating in the religious procession. It
was revealed that the arrested persons were taken into an abandoned government building
where they were allegedly subjected to poor, substandard, and inhumane conditions during
their captivity.

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 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 the Beshtean armed forces and the Tegi Liberation
Organization was an international armed conflict.

Third, Duval is individually criminally responsible for committing whether as an

individual, jointly with another, or through another person, the crime against humanity of
extermination, with respect to the acts committed at the community hall on November 2,
2016.

Fourth, Duval is individually criminally responsible for ordering, soliciting, or

inducing the commission of the war crime of intentionally directing attacks against buildings
dedicated to religion, committed against the Pinky Shrine on December 28, 2016.

Fifth, Duval is criminally liable on the basis of command responsibility for the war
crime of torture, with respect to the treatment of arrested persons on December 28, 2016 and
detained in the old building.

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 PLEADINGS

I. PRELIMINARY MATTERS

Duval faces the Pre-Trial Chamber I for the confirmation of charges, 1 wherein the
Prosecution will deliver satisfactory evidence to establish substantial grounds to believe that
the Defendant committed the crimes charged.2 Upon the resolution of the confirmation
charge, the prosecution must be able to satisfy the Chamber that such allegation is strong to
charge defendant.

A. Duval’s case is admissible under the Rome Statute

The ICC shall be complementary to national criminal jurisdictions.3 Complementary

jurisdiction dictates that the ICC would be competent to investigate and try a case if there is
no other State that claims jurisdiction. 4 The ICC will serve as a court of last resort where
justice cannot be achieved on a national level. 5 In the Katanga case the ICC acquired
jurisdiction of the case since there was no investigation being carried out in the national
level.6

1
Facts, ¶34.

2
Rome Statute [Statute], art. 61(5).
3

Statute, Preamble, ¶10.

4

Solera, Complementary Jurisdiction and International Criminal Justice, 84

International Review of the Red Cross 845, 148 (2002).
5

Benzing, The Complementarity Regime of the International Criminal Court:

International Criminal Justice between State Sovereignty and the Fight against Impunity, 7
Max Planck Yearbook of United Nations Law, 600 (2003).

6
Prosecutor vs Katanga 2014

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 The Beshtean authorities decided not to push through Duval’s investigation due to the
government’s reluctance to delve into what should have been a confidential and into what
should have been a confidential and bilateral report, as well as the political pressure from
Gandara and the invocation of immunity by TPP7.

Beshtea’s renege manifests Beshtean’s unwillingness in genuinely conducting the

investigation or prosecution of the case.8 Its inaction clearly demonstrates unjustified delay in
the proceedings which in the circumstances.

B. Nature of the conflict

There is international armed conflict (IAC) when two or more High Contracting
Parties or States in cases of declared war or of any other armed conflict which may arise,
even if the state of war is not recognized by one of them. It also exists in cases of partial or
total occupation of the territory of a State, even if the said occupation meets with no
resistance.9 What is essential for criminal responsibility to arise is the measure of control by a
Party to the conflict over the perpetrators.10

Jurisprudence dictates that a high degree of control was necessary to render the
conflict as international in character.11 It requires that a Party not only be in effective control
of a military or paramilitary group, but that the control is exercised with respect to the
specific operation in the course of which breaches may have been committed.12

7
Facts par 30

8
Statute, art. 17(1)(a).
9

Id.
10

Nicaragua vs US ICJ Reports (1986),

11

12
Id.

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 C. There is an international armed conflicting between Beshtea and Tiktikels.

Other than the declaration of support, TLO was acquiring weapons from Tiktikles
across the border,13 and this was corroborated by Ashtani’s Chief of Police that the weapons
bore markings which showed that they were manufactured in Tiktikels. 14 Previously, the
spokesperson of the Ministry of Foreign Affairs of Tiktikels had reassured the Teginians that
Tiktikels would extend moral and other forms of support to TLO.15

This circumstance suggests that the TLO was acting under the guidance and support
of Tiktikels, and that the said support was effective and substantial that no civilian liberation
movement would be capable of sustaining within a prolonged period of time.

II. CRIME OF EXTERMINATION

Duval is individually responsible for the crime against humanity of extermination

committed on the Teginians during the November 2, 2016 attack .

1. Duval never denied the fact that his command caused the death of a number of
people

For one to convicted of the crime of extermination the perpetrator killed one or more persons,
including by inflicting conditions of life calculated to bring about the destruction of part of a
population and the conduct constituted part of, a mass killing of members of a civilian
population16. After the attack it was reported that there was a casualty of 56 people17.

As a commander Duval deployed 256 military personnel under his control to the
venue of the meeting and ordered them to surround and secure the vicinity before the
13
Facts, ¶9.

14
Id., ¶10.

15
Id., ¶6.

16
Article 7 (1) (b)Elements of Crimes
17
Facts ¶ 14
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occurrence of the attack inside the community hall. Duval admitted in his press conference
that his forces acted swiftly and had caused the least number of casualties and prevented a
major attack by disrupting the TLO meeting. 18 Duval’s never denied the casualties which
were discovered after the attack. This, therefore, is an implicit admission of his responsibility
over the death of the said civilians.

2. It was the civilians who were the target of the attack

The Third Geneva Convention defined a civilian as any person who are not taking any
active part in the hostilities, including members of the armed forces who laid down their arms
and those persons placed hors de combat by sickness, wounds, detention or any other cause.19
Attacks on civilian are prohibited.

The fact that operation which resulted to the 20 minute exchange of fire occurred
suburbs where residential areas present meant Duval didn’t care if civilians are affected. As
the commanding officer and someone who knew the area; Duval knew that the conduct was
part of or intended the conduct to be part of a widespread or systematic attack directed
against a civilian population20. It doesn’t necessarily mean that the attack was directed to the
entire population. To be considered civilian in character; the “character” of the population, it
has been acknowledged that the targeted population must be predominantly civilian. It
follows then that the presence of isolated non-civilians among this population does not
deprive that population itself of its civilian character.21

3. The attack on the community hall against the Teginians is in a large scale and
systematic

The term “widespread” refers to the large scale nature of the attack and the number of
victims, whereas the term “systematic” refers to “the organized nature of the acts of violence

18
Id.
19
Third Geneva Convention
20
Article 7 (1) (b)Elements of Crimes
21
Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013,
¶37- 38
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and the improbability of their random occurrence”. 22 "The conduct was committed as part of
a widespread or systematic attack directed against a civilian population

He also brought with him 256 military personnel which mean that the attack was
really planned and the operation was in the massive scale. Duval had an entire planned
operation. .

III. THE WAR CRIME OF INTENTIONALLY DIRECTING AN ATTACK

AGAINST A PLACE DEDICATED TO RELIGION

Duval is individually responsible23 for ordering the commission of the war crime of
intentionally directing an attack against a building dedicated to religion on December 28,
2016.24 It is the majority of Teginians who practice the Owver religion meaning the Beshtean
forces have no sentiments towards the area.

1. Pinky Shrine’s damage and destruction can be credited to Duval’s order against the
TLO leaders

The act of ordering a an attack without thinking of the possible consequences to a

religious place and action which caused damages a place dedicated to religion shall be guilty
of the war crime of intentionally directing an attack against a place dedicated to religion
Thus, the attack by the Beshtean against the Pinky Shrine which was denominated as cultural
property25 was a clear consequence of Duval’s order to destabilize the TLO officials.

2. Duval’s Military background would show his objective in the attacking a place dedicated
to religion is not a military but an attack is a building dedicated to religion than a military
action

22
Prosecutor v. Augustin Case No ICTR-00-56-A, Judgement (AC), 11 February 2014
23
Statute, art. 25(3)(b).
24

Elements, art. 8(2)(b)(ix).

25
Facts, ¶ 21.

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 As the appointed commander equipped with experience Duval should have known
the possible consequences of an attack against a rebel group considering the proximity and
the effects of the attack towards religious people,
The Shrine served as a heritage for the dedicated to Teginian religion of Owver. ,
hence the shrine should protected from any attack in an armed conflict.26 Moreover, before
and during the order, Duval didn’t have knowledge if there were any military objectives in
the immediate vicinity of the Shrine to justify its damage or destruction.27

A. Duval had knowledge of the hostilities between Beshtea and Tiktikels when he
executed his order of attack of the religious building

Due to Duval’s authority, he had access to all the material information of the on-going
hostilities between Beshtean and Tiktikels through the TLO. He had knew of the existence of
the armed conflict when he executed his order. Duval is deemed aware and knowledgeable
that the execution of his order will inadvertently cause damage to the Shrine.
Pursuant to Article 30 of the Statute, such intent may be in the form of awareness of
consequences, which is attributed to a person who orders an act or omission with the
substantial likelihood that a crime will be committed in the execution of that order.

III. Duval’s command of attack of the Pinky café is not a military necessity

It is prohibited for one to unnecessarily the property of the enemy. Military necessity
can be raised when “by its function, been made into a military objective”, on the one hand,
and there must be “no feasible alternative available to obtain a similar military advantage”, or
there is an urgency on the attack on the other28. In which neither of the requirements are met.

26
Id., art. 9; See also, 1907 Hague Regulations, art. 27.

27
Prosecutor v. Strugar, Judgment in the Trial Chamber II, IT-01-42-T (2005), ¶295.

28
Second Protocol to the Convention for the Protection of Cultural Property in the
Event of Armed Conflict (1999), art. 6(a).
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 The Shrine is used for religious practices of the Owver religion. 29 Although the
information Duval received merely notified Duval of meeting TLO armed forces in the Pinky
Café, not inside the Pinky Shrine; however the information is not sufficient to turn such
heritage site into a military objective. Duval had intentionally made the attack towards the
building

IV . Duval’s liability for the war crime of torture

1. Civilians are granted protection against wars under the Geneva Convention

The Teginians who were arrested when they were taking part in the religious
procession,30 and those other civilians who were suspected of being affiliated with the TLO,31
remain to be civilians who were not taking active part in the hostilities since there was no
action relating them to the military or any resistance they simply exercised their right to
faith32. Hence are considered Civilians.

2. Duval is liable for physical or mental pain or suffering against the Teginians

Based on the testimony of the escaped detainees and the report of the International
Committee of the Red Cross (ICRC), is an act committed with the consent or acquiescence of
Duval. He had been seen in the premises of the building this he is aware of what was
happening inside the camp.

29
Facts, ¶21
30
Facts, ¶24.
31
Facts ¶25.

32
Conventions IV, art.3(1).
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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
confirmed.

RESPECTFULLY SUBMITTED,

Counsel for the Prosecution

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