TABLE OF CONTENTS

INDEX OF AUTHORITIES ----------------------------------------------------------------------- 2

QUESTIONS PRESENTED ----------------------------------------------------------------------- 3

STATEMENT OF FACTS ----------------------------------------------------------------------- 4-6

ADMISSIONS BY PARTES ------------------------------------------------------------------------- 7

SUMMARY OF PLEADINGS --------------------------------------------------------------------- 8-9

PLEADINGS ----------------------------------------------------------------------- 10-14

PRAYER ----------------------------------------------------------------------- 15
 INDEX OF AUTHORITIES

 Rome Statute of the International Criminal Court

 First Geneva Convention: The Geneva Convention for the Amelioration of the Condition
of Wounded and Sick in Armed Forces
 Fourth Geneva Convention: The Geneva Convention Relative to the Protection of
Civilian Persons in Time of War
 Additional Protocols to the Geneva Conventions of 1949 relating to the protection of
victims of international armed conflicts (Protocol 1)

Memorandum for the Prosecutor| 1

 QUESTIONS PRESENTED

WHETHER COLONEL POTTER IS GUILTY OF COMMITTING VIOLATIONS OF LAWS

OR CUSTOMS OF WAR BY COMMITTING:

a. Attribution of criminal responsibility

b. Crime against humanity of deportation or forcible transfer of population
c. War crime of improper use of distinctive emblems of Geneva Conventions

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 STATEMENT OF FACTS

Aside from sharing a mountainous and inaccessible border region, Manis and Tuton also shared
a violent history and for the last 10 years, the violence has all the more escalated in the eastern
border region which provided access to the Atlantic Ocean and profitable shipping routes.

In the early 2004, violent border clashes increased between military forces of Manis and Tuton
resulting to both civilian and military losses. In an attempt to frustrate Tuton’s supply and
shipping routes, Manis made Tuton’s access to Blue Channel increasingly difficult resulting to
Tuton’s restrictions on trade and growing food shortages. Thus on 2005, Tuton’s military forces
invaded the north-eastern border region of Manis claiming its ‘sovereign right to freely access
the Blue Channel’ to which such skirmish resulted to the defeat of Manis’ military forces.
Tuton’s military forces took control of region, occupied it and established a temporary
administration over the area. The sustained fighting destroyed several public buildings and
damaged Manis’ water supplies and power grid in the north-east region.

From January 2005, Col. Potter was the Base Commander of Tuton military base and was in
charge of Tuton soldiers in Hild and immediate vicinity. By June 2005, several Tuton military
check points in the area were setup under his command, including along the road leading to Hild.
The village Hild was fairly isolated in the mountains close to the border, and relied on southern
Manis villages for some of its food, as well as the connection to its water and electricity
networks and the fighting occurring in the area damaged the roads and infrastructure near Hild
and surrounding area resulting to its more difficult access.

On May 2005, Col. Potter’s soldiers patrolled the areas in and around Hild in an attempt to
restore order and peace however; sporadic incidents of armed resistance and violence were
widely reported in Hild. During this time, Tuton authorities detained those suspected of acts of
violence against its forces in and around Hild.

Meanwhile, cross border incursions and shelling campaigns continued to damage civilian
buildings, outlying farmlands and water supplies in Hild, with the village being left without
water for days. Throughout June-August 2005, Col. Potters soldiers were routinely seen stopping
and searching local vehicles, including public and school buses. During this time local media
sources reported that Col. Potter and his soldiers were searching for ‘Manis guerilla sympathisers
and weapons’.

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On July 15, 2005, a bomb exploded in Hild near local Tuton military barracks killing four off-
duty Tuton soldiers. A week later a military jeep was attacked by a bomb triggered by the
passing vehicles on the road. After the two bomb attacks Col. Potter received information from a
local informant that members of Manis guerilla units from the south might have been infiltrating
Hild and surrounding area to carry the attacks and because of this, Tuton soldiers under Col.
Potter’s command stepped up their security in Hild and surrounding area which included 24-hr
checkpoints on the entry road of Hild. Local Hild villagers either leaving for work or returning to
the village at dusk after work were routinely stopped and bags and vehicles searched. Col.
Potter’s men questioned those trying to enter the village about their work and family members.

During July and August2005, there were also reported incidents of Col. Potter’s men searching
food and supplies brought by villagers into Hild. Bags of rice, flour and beans were reported as
broken open, spilt and searched. Villagers were angered at what they called deliberate waste of
food when supplies were scarce. The soldiers claimed actions were necessary security measures
against daily threats. The soldiers at the entry checkpoint refused to allow some building
equipment and water-sanitation experts from larger cities in Manis’ south to enter Hild thus
damaged water pipes and electricity networks remained unrepaired. Also, Tuton soldiers in Col.
Potter’s unit were seen putting up notices in public square offering to relocate villagers to
southern village of Elvos, a larger village further away from border campaigning it had
undamaged water and power networks and that it had shops, local food market, and medical
centre.

The public notices called on villagers to consider the health and well-being of their families and
children and indicated that the ongoing lack of water, food and armed attacks made Hild both
unsafe and a potential health risk.

By late June 2005 Manis has also increased its attacks over the northern border with Tuton. This
included nightly raids conducted by guerilla units from Manis’ military forces on the Base in
Tuton territory.

The Tuton military base included a reasonably sized medical facility staffed by approximately 20
permanent military medical personnel. Due to continued nightly raids and a severe shortage of
available able personnel, Colonel Potter ordered most medical personnel to assist with general
protection of Base, including patrols to identify Manisian units attempting to infiltrate border to
reach the Base. Approximately 2km from the Tuton military base they came upon an enemy unit
of Manisian military in an armored vehicle that was proceeding in the general direction of Base.

Manisian soldiers identified the approaching unit as medical personnel and continued their
course. One of Tuton’s military medical personnel saw the Manisian soldiers continue to
approach, became nervous, and fired his weapon at their vehicle. Manisian soldiers immediately

Memorandum for the Prosecutor| 4

returned fire. A short battle ensued and six Manisian soldiers were killed. Tuton’s military
medics returned to base and resumed their patient rounds.

ADMISSIONS BY PARTIES

Both parties submit jointly to the jurisdiction of the UN Special Court which is mandated to try

individuals accused of having committed the most serious violations of Laws and Customs of

War. Pursuant to Article 1 of the Special Court’s Statute, it has the power to prosecute persons

responsible for serious violations of international humanitarian law committed in the territory of

Manis and Tuton. The parties to the dispute have accepted the jurisdiction of the Court and both

parties shall accept the judgment of this Court as final and binding and shall execute it in good

faith.

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 SUMMARY OF PLEADINGS

The conduct of Col. Potter took place in the context of and was associated with an international
armed conflict during the period relevant to the submissions 1. In Prosecutor v. Tadic2, it was held
that “it is indisputable that an armed conflict is international if it takes place between two or
more states. In addition, in case of an internal armed conflict breaking out on the territory of the
State, it may become international if (1) another State intervenes in that conflict through its
troops or alternatively if (2) some of the participants in the internal armed conflict act on behalf
on that other State. Upon the duration of the armed conflict the following are the crimes he is
liable for:

 Attribution of criminal responsibility

The prosecution respectfully submits that Col. Potter is criminally responsible within the
meaning of Article 25 paragraph 3 of the Statute considering that Potter, being the
commander of the Hild Unit, possessed the authority to order the commission of the
offenses. In the same manner, Article 7 (1) (3) of the Statute of the International Criminal
Tribunal for the Former Yugoslavia has also been violated.

 Crime against humanity of deportation or forcible transfer of population

The prosecution respectfully submits that Col. Potter has committed the crime against
humanity of deportation or forcible transfer of population being the commander of the
Hild Unit in relation to acts committed to thee chaos that took place in Hild amounting to
a violation of Article 7 (d) of the Rome Statute of the International Criminal Court. The
prosecution as well submits that since Tuton is signatory to the four Geneva Conventions
as well as its additional protocols, Potter has as well violated provisions relating to armed
conflicts.

 War crime of improper use of distinctive emblems of Geneva Conventions

1
CA 2, Geneva Conventions 1-4: international armed conflict occurs when in all cases of declared war 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.
2
Prosecutor v. Tadic, Case No. IT-94-1, Appeals Chamber, July 15, 1999 par. 84

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The prosecution respectfully submits that Col. Potter has committed the war crime of
improper use of the distinctive emblems (the red cross insignia) of the Geneva
Conventions thus violating Article 3 of the Statute of ICTY which pertains to violations
of the laws or customs of war and Article 37 of Additional Protocol I prohibiting perfidy
and blatantly using medical personnel as a cover to commit such perfidy.

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 PLEADINGS

 Attribution of criminal responsibility

The prosecution submits that Col. Potter is criminally responsible within the meaning of
Article 25 paragraph 3 of the Rome Statute which states that a person shall be criminally
responsible and liable for the punishment for a crime within the jurisdiction of the Court if
that person: order, solicits or induces the commission of such a crime which in fact occurs or
is attempted. In addition, Article 28 of the Rome Statute is as well violated making military
commanders, other superiors and those with superior and subordinate relationship criminally
responsible for crimes done under his effective authority and control or as a result of his
failure to take all necessary and reasonable measures within his or her power to prevent or
repress its commission3.

In such the same manner, such article correlates with Article 7 paragraphs 1 and 3 of the
Statute of the International Criminal Tribunal for the Former Yugoslavia 4(ICTY) providing
for the same gist making a person liable and responsible despite not being able to physically
commit the crime but merely ordered, planned, instigated, or ordered for the preparation or
for the execution of the crime committed.

Violation of the said provisions is evident by committing war crimes resulting to the
damaging of the roads and infrastructure near Hild and the surrounding area. Moreover,
because of the deprivation of the basic necessities of living such as water and food and lack
of electricity necessities due to the order given to the military persons of refusing Manis
civilians who are suspected of acts of violence to enter Hild, water pipes as well as electricity
3
Article 28, Rome Statute: In addition to the grounds of criminal responsibility under this Statute for crimes within
the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible
for crimes within the jurisdiction of the Court committed by forces under his effective command and
control, or effective authority and control as the case may be, as a result of his failure to exercise control
properly over such forces where- [i] military commander or person either knew or, owing to the
circumstances at the tim, should have known that the forces were committing or about to commit such
crimes; and [ii] military commander or person failed to take all necessary and reasonable measures within
his or her power to prevent or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.

4
Article 7 (1) (3) ICTY: (1) A person who planned, instigated, ordered, committed or otherwise aided and abetted in
the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present Statute, shall be
individually responsible for the crime; (3) The fact that any of the acts referred in the Statute was committed by a
subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the
subordinate was about to commit such acts or had done so and the superior failed to take the necessary and
reasonable measures to prevent such acts or to punish the perpetrators thereof.

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 plants and even farmlands remain unrepaired.Hence, people living in Hild are forced to
evacuate to Elvos which in fact they would not have to do so if there was no chaos in the said
border region. Also, because of the strict patrolling and routine searching, villagers are
delayed from returning home for several hours past nightfall causing workers delay in going
to their jobs the next day. Food supplies brought by villagers into Hild were also reported to
be broken open, spilt and searched angering the villagers as it is a deliberate waste of food
when at such times the supplies were scarce.

By the said violations of the human rights of the villagers in Hild, Col. Potter is therefore
responsible of such commission of violations by virtue of his command responsibility given
that the accused was the Commander in charge of Tuton soldiers based in Hild clearly
showing a superior-subordinate relationship existing between him and the soldiers. In fact,
the actus reus of ’ordering’ means that a person in a position of authority instructs another
person to commit an offence5. His ordering, aiding and abetting were done in the awareness
of the substantial likelihood that damage would likely occur consequent to his conduct. Potter
had the authority to instruct others to commit an offense and therefore, responsible for the
attacks as he did not even refrain his unit from such attack causing incidental loss of civilians
and of public objects.

Thus, Col. Potter is liable.

 Crime against humanity of deportation or forcible transfer of population

The prosecution as well submits that Col. Potter is criminally responsible for violating
Article 2(g) of the ICTY Statute6 and Article 49 of the Fourth Geneva Convention 7 regarding
unlawful deportations or forcible transfers. The prosecution submits that Col. Potter’s
soldiers created and took advantage of a coercive environment where the villagers leaving
Hild made it seem that it was indeed their genuine choice.

The humanitarian crisis causing the displacement of the villagers of Hild was itself the result
of Col. Potter and his soldier’s own unlawful activities as the soldiers covertly deprived the
villagers of food, water, and electricity under the pretext of securing the safety of the
villagers8. As per the compromis, despite the blatant damage on civilian building, farmlands
5
See: Kordic and Cerkez Trials
6
The International Tribunal shall have the power to prosecute persons committing or ordering to be committed
grave breaches of the Geneva Conventions of August 12 1949, namely one of which is: unlawful deportation or
transfer or unlawful confinement of a civilian.
7
Article 49, 4th Geneva Convention: Individual or mass forcible transfers, as well as deportations of protected
persons from occupied territory to the territory of Occupying Power or to that of any other country, occupied or
not, are prohibited regardless of their motive.
8
See: Krajisnic Trials; it is not necessary to show that there was an intent to displace the population on a
permanent basis.

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 and water supplies in Hild with the village being left without water for days, soldiers under
the command unit of Col. Potter did not make any move as to remedy it. Moreover, bags of
rice, flour and beans were reported as broken open, spilt and searched despite knowing that
food has already been scarce in the village which is in blatant violation of Article 23 of the 4th
Geneva Convention pertaining to the convention protecting civilians in times of war. Such
provision provides that the Occupying party or either of the party to the conflict shall permit
the free passage of all consignments of essential foodstuffs, clothing and tonics which was
never made possible.

Due to the scarcity of basic necessities, the villagers have no option but to accept to being
relocated to Elvos. Genuine choice therefore cannot be inferred from the fact that consent
was expressed by the villagers as coercive circumstances gave them no real option but to
leave. Additionally, there were no tangible evidence that the villagers of Hild were in danger
as a result of military operations or intense bombing as per compromis 9, the civilian
population was not at risk considering that the attacks were directed the Tuton military
forces. Bombs and explosion were mainly targeted either as to the barracks of the Tuton
military forces or where most of the soldiers were seen patrolling.

 War crime of improper use of distinctive emblems of Geneva Conventions

The prosecution submits that Col. Potter is liable through the command responsibility he has
over the soldiers assigned at Hild Unit and of its medical personnel considering that they
made an improper use of distinctive emblem of the Geneva Convention which is the Red
Cross, resulting in death and serious personal injury violating Article 3 of the Statute of
ICTY and Article 37 of Additional Protocol I prohibiting perfidy10.

As per compromis, commission of such war crime is evident on the incident that happened
on July 22, 2005 when Col. Potter ordered most medical personnel to assist with the general
protection of the Base, including patrols to identify Manisian units attempting to infiltrate the
border to reach the base. Further on July 30, 2005, unit of Tuton’s military medical personnel
who wore brassards bearing the red cross emblem, carried light personal weapons and
travelled in an armored vehicle conducted patrol around the Base and where one of the Tuton
military personnel fired his weapon at a Manisian soldier. Such acts clearly constitute perfidy

9
Compromis: July 15, 2005, a bomb exploded in Hild near the local Tuton military barracks; July 22, 2005, a military
jeep carrying military supply was attacked by a bomb trigerred by the passing vehicles on the road.
10
Article 37, Additional Protocol I: It Is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts
inviting confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection
under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall
constitute perfidy; (d) feigning of protected status by use of signs, emblems or uniforms of the United Nations or of
neutral or other States not parties to the conflict.

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 which is defined as inviting the confidence of an adversary to lead him to believe that he is
entitled to, or obliged to accord protection, under the rules of International Humanitarian law,
with intent to betray that confidence11.

The medical personnel improperly used the distinctive emblem of the Reed Cross by wearing
it for a non-humanitarian purpose. The uniforms and vehicles used as well invited the
confidence of Manisian soldiers, leading them to believe that the Tutons were entitled to
protection under the international law as any improper use of a distinctive emblem of the
Geneva Convention has the effect of diminishing the protective value of the emblem. What
should have been done was that, since the command unit has a shortage of soldiers, they
should have removed the emblem and should not have identified themselves as medical
personnel for the time being.

Since, the medical personnel was only carrying out the order under the command
responsibility of Col. Potter, Col. Potter therefore is as well liable of the war crime of
improper use of distinctive emblem. As a military commander, Col. Potter must have known
of the protection afforded to the medical personnel under international law and the illegality
of the improper use of Red Cross emblem.

11
Ibid.

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Memorandum for the Prosecutor| 12