Henry Dunant Memorial Moot Competition - 2016

International Criminal Court

At

The Hague

1. The Prosecutor v. Brigadier Zachesu

2. The Prosecutor v. Brigadier Vasvodina

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 The Prosecutor v. Brigadier Zachesu
&
The Prosecutor v. Brigadier Vasvodina

____________________________________________________________________

Facts of the Case

Rodinga is a country that has a cherished history of unity in diversity. It has been the

cradle of many religions and philosophical thoughts. However, Rodinga was gradually

colonized by Suzophia during the 19th century. Colonial control by Suzophia became

explicit in 1880, when the Suzophian Parliament proclaimed its supreme legislative

and administrative power over Rodinga.

The Suzophian authorities divided Rodinga into five states for administrative ease.

The divisions were made based on the language and cultural characteristics of each

region. These states are Sinsalu in the north, Kambhatka in the east, Nilodonia in the

west, Radusaria in the south and Sanrolia in central Rodinga. The borders of Sanrolia

touched all the states of Rodinga. Tirsone – a city situated in central Sanrolia, was

developed as a capital city by the colonial authorities due to its central location and

business and cultural activities.

As per the first census conducted by the Suzophian authorities in 1900, the population

of Rodinga consisted mostly of three religions: Radung - 45%, Niluk - 35%, and

Sanlum – 15%. An additional five percent of the population consisted of tribal people

living in the deep forest areas of Rodinga. As per the states related data of this census,

the followers of the Radung religion were in majority in all states except Sinsalu and

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Kambhatka. The population of Sinsalu consisted of 50% Niluk, 20% Radung, 20%

Sanlum and 10% Tribals. However, the population of Kambhatka consisted of 40%

Niluk, 30% Sanlum, 20% Radung and 10% Tribals. These percentages are still valid

in respect of population of Rodinga and its states.

Rodinga declared its independence from Suzophia in July 1970. This independence

came after forty years of active struggle on the part of the people of Rodinga, under

the leadership of the Rodingan Nationalist Democratic Party (hereinafter RNDP).

Since the first war of independence of Rodinga in 1930, the Rodingan people had been

continuously and collectively fighting for their independence with peaceful means.

Although there were some instances of individualised violence, the overall freedom

struggle of Rodinga remained an impressive example of a peaceful struggle by the

masses to seek and achieve freedom.

The RNDP was formed immediately after Rodingan’s first war of independence and

was basically an umbrella political organization. Almost all the spectrums of religious

and social identities of Rodinga were part of the RNDP in their collective struggle for

independence. Since its inception, the RNDP had been a catalytic force for uniting

previously scattered groups fighting individually for independence.

The RNDP was created and stood united throughout the freedom struggle of Rodinga

under the leadership of Mr. Ragoba, a Radung by religion. Mr. Ragoba was a

charismatic political leader who preached for religious harmony, non-violence and

mutual co-existence. He was the central uniting force for the RNDP and his

unquestioned popularity in all sections of the people made him a natural leader of their

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freedom struggle. Mr. Ragoba subsequently became the first Prime Minister of

Rodinga after its independence, and remained as such till his assassination in 1990.

The penultimate five years of Rodinga’s independence struggle were marred by

intermittent religious violence, mostly in Sinsalu and Kambhatka states, and open

rivalries along religious lines among some junior leaders of the RNDP, from these

regions. But the clout of Mr. Ragoba eclipsed all those differences and sailed

sufficiently well through those turbulent waves. Mr. Ragoba also accused the colonial

government of Suzophia for all the internal troubles. He released a statement, just after

becoming the Prime Minister, that Suzophia had deliberately instigated the violence

and mutual animosity among religious groups of these states in order to delay

Rodinga’s freedom and to hinder the development of independent Rodinga because

these states (Sinsalu and Kambhatka) were rich in mineral resources and also had

more than 75% of lush green forest cover of Rodinga.

Within a month of his appointment as Prime Minister, Mr. Ragoba formed a

Constituent Assembly of Rodinga to make a constitution for independent Rodinga.

From the leaders of the RNDP he handpicked the members of the Constituent

Assembly, ensuring fair representation from almost all regional and religious

communities. The Constituent Assembly took a mere six months to prepare the

constitution, however, there were some allegations that the Constituent Assembly

unquestionably followed the instructions of Mr. Ragoba. Mr. Ragoba, was in fact the

chairman of four committees of the Constituent Assembly. The most important of

these were the Committee on Fundamental Rights and the Committee on Emergency

Provisions. The other six committees were chaired by his close associates.

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The Constitution of Rodinga declared that Rodinga would be a secular, democratic

and republic country. The Constitution did not change either the inner boundary of the

states or their names. Tirsone remained the capital of independent Rodinga. The

Constitution did not provide for State Governments, noting that states were only

maintained for administrative ease. All the executive powers of the Government were

concentrated in the office of the Prime Minister. The Constitution of Rodinga provides

many fundamental rights to its citizens. However, these fundamental rights may be

suspended during the state of emergency. The power to declare and withdraw

emergency rests in the office of the Prime Minister.

The first general election under the new Rodingan Constitution took place in February

1971. The RNDP under the leadership of Mr. Ragoba won the elections with an

impressive margin. Mr. Ragoba became the first democratically elected Prime

Minister of Rodinga. Successive elections in 1976 and 1981 also witnessed the victory

of the RNDP under Mr. Ragoba’s leadership. But the popularity of the RNDP and Mr.

Ragoba were continuously diminishing. The main opposition party, the Rodinga

Socialist Republican Party (hereinafter RSRP), was formed in 1971 by a small faction

of RNDP and was continuously gaining support from the masses of all states of

Rodinga. Mr. Sari Salania, a Radung by religion, was President of the RSRP.

The intense extraction of natural resources from the states of Sinsalu and Kambhatka

undertaken by Rodinga Government caused widespread health and environmental

problems in these two states. Nilodonia and Radusaria states had rich fertile lands with

limited forest pockets. Sanrolia was densely populated and heavily industrialized state.

Most of these industries were situated on the borders of Sanrolia, in order to gain easy

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access to raw materials from other four states. Due to industrialization, Sanrolia was

more developed and prosperous in comparison to the other states of the country.

In June 1980, the local intellectuals of Sinsalu and Kambhatka jointly created a non-

political cultural group named the “Enduring Federation: Our Right” (hereinafter

EFOR). The EFOR involved an awareness generation about the plight of the States of

Sinsalu and Kambhatka. They also advocated for the right of the States to control their

natural resources. The workers of the EFOR came from all spectrums of the

population of Sinsalu and Kambhatka. Mr. Nasan Aldolo, a Niluk by religion was

elected as a leader of the EFOR by an internal ballot.

The EFOR in April 1985 called for a peaceful protest in Tirsone on 1 June 1985. Later

the RSRP supported this call and also decided to participate in the protest. Rodinga’s

Police disrupted this march to prevent the protestors from reaching the Prime

Minister’s Office, where they wanted to hand over their list of demands. Mr. Nasan

Aldolo and Mr. Sari Salania, with 1000 of their supporters, were arrested and detained

on charges of disturbing public tranquility. Later the same month, the well reputed

news paper of Rodinga, The Morning published a full page cover story on the

corruption of the family members of Mr. Ragoba, providing a list of their properties

in, and outside, Rodinga. The Chief Editor of The Morning, Mr. Pinto Alberto

(Sanlum by religion) was thereafter arrested on defamation charges.

The general election held in May 1986, was critical for the RNDP and Mr. Ragoba.

There was speculation in the air that the RNDP would lose the election. There was

widespread violence during the election, which both the Rodinga Police and workers

of the RNDP were involved in. Surprisingly, the RNDP won the election with a slim

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majority, and Mr. Ragoba continued as Prime Minister. The international media

severely criticized the election as ‘a mockery of democracy’.

In September 1986, the members of the EFOR attacked and destroyed some

government properties and installations situated in the deep forests of Sinsalu and

Kambhatka. Similar kinds of attacks were also carried by members of the RSRP in

Nilodonia and Radusaria states. Fifty security personnel were died and hundreds were

reported missing in these sudden attacks by the EFOR and the RSRP members. The

government came down heavily on the members of the EFOR and the RSRP. By the

end of 1989, almost 5000 workers of the EFOR and the RSRP had been arrested on

various criminal charges and 115 workers of the EFOR and the RSRP were reported

dead.

In January 1990, large scale violence erupted in many parts of Sinsalu, Kambhatka,

Nilodonia and Radusaria, mainly targeting government property. The Government

deployed police and paramilitary forces to the affected sites. On 1 February 1990, Mr.

Ragoba was assassinated by a suicide bomber while addressing a public meeting in

Tirsone. No one claimed responsibility for this attack. Rodinga’s cabinet collectively

decided to declare Mr. Radula, son of the late Prime Minister Mr. Ragoba, Prime

Minister of Rodinga. On the very next day, he declared the state of emergency

extending to the whole of Rodinga. Both the EFOR and the RSRP were banned and all

elections were suspended.

The violent protests of January 1990 were brutally suppressed and more than 500

persons were reported to have been killed during this period. The Human Rights

Quest, a reputed International human rights NGO, criticized the intensity and severity

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of the use of force by the government forces. The brutality of government forces was

also telecast by the international media. Most of the workers of the EFOR and the

RSRP moved into dense areas of forest in Sinsalu and Kambhatka. With the passage

of time, they united themselves under the name of “Army For Democracy”

(Hereinafter AFD) and engaged in a sustained low scale violence against government

police and paramilitary forces. The Rodingan government banned the AFD and

declared it a terrorist organization in 1995. This low scale violence between the AFD

and the government forces continued for many years till the three sensational jail

breaks on 2 March 2011.

There were three sensational jail breaks on 2 March 2011 resulting in the escape of

Mr. Nasan Aldolo, Mr. Sari Salania and Mr. Pinto Alberto. These individuals went to

the forested areas of Sinsalu and subsequently were all declared joint Presidents of the

AFD. Through the internet, the AFD also declared its intention to fight for the

establishment of federal democracy in Rodinga and called on all democracy

supporters to join it. Within months, the membership of the AFD increased

exponentially. State units of the AFD were also formed in other states and these units

were actively engaged in broadening their support base in masses. The AFD

reestablished its operational branch under the leadership of Brigadier Vasvodina

First Series of Attack

In December 2011, the AFD launched a series of coordinated attacks against

government installations and buildings in the states of Sinsalu and Kambhatka. The

famous coal mines of Rasinia and Kaluma (both situated in the deep forests of

Sinsalu), and gold mines of Samchatka and Tikalu (both in the deep forests of

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Kambhatka) were captured by the fighters of the AFD. 50 personnel of Rodingan

paramilitary and almost 50 employees working in these mines were captured by the

AFD fighters.

The attempts of the international humanitarian agency, the IHEA (International

Humanitarian Enforcement Agency) to discover the fate of the captured civilians and

the paramilitary forces failed, as no communication links could be established

between the IHEA officials and the AFD.

Prime Minister Mr. Radula warned all the fighters and supporters of the AFD of

serious consequences. On 15 January 2012 a group of Rodingan armed forces attacked

a training camp of the AFD situated in Snowaliya village in Nilodonia state, killing 50

AFD fighters and 5 civilians. Rodingan Army claimed that the killed civilians were

active supporters and collaborators of the AFD activities. Similar kinds of events were

reported from other parts of the country except Sanrolia.

A Brigade of the Government Army, under the command of Brigadier Zachesu,

entered the forests of Sinsalu to liberate the coal mines of Rasinia and Kaluma. On

their way to the mines, they fought intense battles with the AFD fighters. When the

government forces reached the suburban town of Rukama, 50 kms away from Rasinia,

they had to face intense fighting from the AFD fighters. Rukama was a local business

center inhabited by almost equal numbers of followers of Radung and Niluk religions.

The AFD fighters kept government forces at bay for one week, during which time

Brigadier Zachesu’s forces incurred heavy losses. 50 armed personnel were lost by

Brigadier Zachesu during this week of intense fighting, without any substantial

achievement.

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The subordinates of Brigadier Zachesu dropped the pamphlets from helicopters on 15

April 2012 in Rukama containing instructions to all civilians to immediately leave

Rukama. Brigadier Zachesu’s forces started heavy shelling from tanks and also used

drones and fighter jets to attack positions of the AFD fighters on the night of 16 April

2012. This resulted in the widespread destruction of the civilian property and 100

civilians and 50 AFD fighters were killed on that night. On the next morning (17 April

2012), Brigadier Zachesu, with her forces, entered Rukama.

Brigadier Zachesu’s forces found more than 50 civilians hiding in natural caves. These

civilians were beaten and their bodies were subjected to many kinds of inhuman

physical invasions on their private organs. The wounded AFD fighters and civilians

were either murdered or left without any arrangement for medical care. The

Government claimed that when the forces entered Rukama, they found it deserted and

pleaded operational constraint to search for the missing civilians. Subsequently,

Brigadier Zachesu made Rukama a temporary base camp to conduct military

operations in Sinsalu and Kambhatka from.

The UN Secretary-General condemned the incidents of Rukama and urged the

Governement of Rodinga to prosecute the responsible persons. The Secretary-General

also requested both the parties to respect the human dignity of civilians and

combatants.

Second Series of Attacks

After the defeat at Rukama, the AFD sought active support from the country Zawalu -

the only country that shares a border with Sinsalu and Kambhatka states. On 1 May

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2012, Zawalu declared war against Rodinga, sighting its own humanitarian

commitment to protect the innocent civilians of Rodinga.

The Ambassador of Zawalu to the UN communicated this decision to the UN Security

Council. The Security Council could not agree on any resolution on peace

enforcement actions due to Suzophia’s veto. However, the Security Council

Resolution 2050 of 2 May 2012 requested all the concerned parties to immediately

restore peace and also urged them to follow the principles of international law,

specifically the laws of war as prescribed in related conventions and customary laws.

The forces of Zawalu, under the leadership of Colonel M. Samwolia, entered Rodinga

on 1 May 2012 from the border state of Kambhatka and wiped out the government

forces within one week, with the active support of the AFD fighters. Though

Zawaluan forces were functioning under their own command, they were merely

assisting the AFD fighters in their mission and never undertook a fight on their own.

The administration of the whole of Kambhatka came under the control of the AFD

fighters. During this week, 20000 Rodinga soldiers surrendered and were thereafter

held as prisoners of war by the AFD.

Zawalu invited the IHEA officials to visit these prisoners. During the first meeting of

the AFD and the IHEA officials, Brigadier Vasvodina informed the IHEA that

captured employees of coal and gold mines and paramilitary forces had voluntarily

embraced the ideals for which the AFD was fighting and were out in Rodinga to

spread the AFD ideals.

Brigadier Vasvodina released a statement on 8 May 2012 that all the civilians of

Kambhatka should celebrate their independence from Mr. Radula’s regime, and “if
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anyone residing in Kambhatka had sympathy for Mr. Radula I will ensure his meeting

with him”. On 9 May 2012, the AFD fighters killed 10 supporters of the RNDP when

they refused to say “Long Live AFD”. This incident took place in Kibati town of

Kambhatka state.

On 10 May 2012, the AFD and Zawaluan force started deploying its personnel at the

border of Rekht city, situated in Sanrolia and sharing borders with Kambhatka. Rekht

was a city of industries. These industries were situated on the banks of the river

Sanrole. This river was an important source of drinking water for the population of

Rekht and other cities downstream. Though these industries were closed for some time

due to a lack of raw materials, they were heavily guarded by Government forces in

order to protect them from falling into the hands of the adversary.

On 11 May 2012, the Government of Rodinga, declared its intention to provide

uninterrupted movement to Zawaluan forces and the AFD fighters inside Sanrolia

through Rekht, provided the AFD fighters and Zawaluan forces would not attack the

industrial installations of Rekht city. The Government of Rodinga indicated the

probable environmental catastrophe if fighting took place in Rekht. However,

Brigadier Vasvodina did not pay any heed to this and launched attack on Rekht city in

the early morning of 12 May 2012 and intense fighting took place for control over the

industries of Rekht city. Both sides used heavy arsenals in this fight.

This resulted into the leakage of “Agent X” and other dangerous chemicals into the

Sanrole river, from tanks of the fertilizer industry. The whole ecology of the river was

vitiated beyond human contemplation. The Sanrole river was full of dead aquatic

creatures. Its water colour was completely changed. All the water purification plants

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downstream had to be closed, and there resulted an acute water scarcity in Sanrolia.

This resulted in the death of 100 people, including children and the elderly. The

international environmental experts were of the view that the pollution caused due to

the leak of “Agent X” and other chemicals into the Sanrole river would take a

minimum of a decade to be wiped out completely from river cycle.

UN Resolution and Ceasefire

On 15 May 2012, Mr. Radula declared his intention to negotiate a ceasefire and

indicated his readiness to incorporate appropriate changes into the Constitution. He

also indicated his willingness to withdraw the state of emergency and to conduct

elections to ensure national unity and prosperity. He communicated this intention in a

personal letter addressed to the President of the UN Security Council.

The last hour high level negotiations at the Security Council resulted in the passage of

resolution 2061 on 15 May 2012 that appealed to all parties to the conflict to stop the

hostilities immediately. The resolution further urged the parties to the conflict to

resolve the issue amicably without any further hostilities and requested the UN

Secretary General to appoint a Special Representative to help the parties to find an

amicable solution. The UN Peacekeeping forces were also deployed in Rodinga to

keep peace and security.

A tripartite ceasefire agreement brokered by the UN Special Representative was

signed on 25 May 2012 by representatives of Rodinga, Zawalu and the AFD. As per

the agreement, Zawaluan forces was to withdraw from Rodinga, the Constitution of

Rodinga was to be amended to accommodate the demands of the AFD, the state of

emergency was to be withdrawn and elections were to be conducted as per the

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amended constitution. Moreover, all political prisoners were to be released and the

AFD had to surrender its arsenal. The agreement also stated that the International

Criminal Court would investigate allegations of violations of international law

committed during the past conflict.

On 23 May 2012, the members of the UN Peacekeeping forces discovered mass

graves of almost 450 persons in Rukama. The forensic report prepared by the medical

team of the UN Peacekeepers indicated that almost 40 bodies were subjected to brutal

physical invasions on their private organs before their death and almost 250 bodies

had the marks of bullets on their skull with other injuries. The report stated that other

persons died in heavy explosions and asphyxiation was also the reason for some

deaths.

Both countries Rodinga and Zawalu are members of the United Nations. Both States

are parties to the four Geneva Conventions and two additional Protocols of 1977 to the

Geneva Conventions of 1949. Both states are parties to the ICC statute and have also

signed all the important IHL Conventions. Zawalu is also a party to the International

Covenant on Civil and Political Rights.

Considering the gravity of the whole situation, the Prosecutor of the ICC decided to

bring the following two cases:

1. The Prosecutor v. Brigadier Zachesu, ICC

2. The Prosecutor v. Brigadier Vasvodina, ICC

Charges against Brigadier Zachesu

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Brigadier Zachesu is charged with the following:

1. Crimes against humanity, for killing of civilians on the night of 16 April 2012 at

Rukama, under article 7 (1) (a) of the Rome Statute.

2. War Crimes, for killing of the AFD fighters and civilians at Rukama on 17 April

2012, under article 8 (2) (c) (i) of the Rome Statute.

Charges against Brigadier Vasvodina

Brigadier Vasvodina is charged with the following:

1. Crimes against humanity, for enforced disappearance of captured mines employees

and Rodingan paramilitary forces during December 2011 strike, under article 7(1) (i)

of the Rome Statute.

2. War Crimes, for launching attacks on industries in Rekht city that resulted in

widespread, long-term and severe damage to the natural environment, under article 8

(2) (b) (iv) of the Rome Statute.

The Court has decided to hear the matters simultaneously. The Counsel are required to

submit their written memorials and present their oral arguments separately for the two

cases as per the charges fixed by the Prosecutor against each individual. Counsel is

required to present arguments separately and simultaneously during the trial process.

Note: The Counsels do not have freedom to choose the case; they are required to

argue both cases.

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 Other Issues Relevant to the Case

1. The matter is to be argued before the trial chamber of the International Criminal

Court. Questions relating to jurisdiction shall not be raised.

2. Written and Oral arguments on behalf of the Prosecution and Defence are to be

confined to the charges mentioned in each case.

3. Both Prosecution and Defence Counsel are to make argument with respect to the

applicability of the charges provided in the “Elements of Crimes”

4. Counsels are expected to bring to the Court’s attention relevant jurisprudence and

other documents. It may include judgments and opinions delivered by International

Courts and various International Criminal Tribunals.

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