1.That the threshold of Article 8(2)(b)(iv) has not satisfied.

i. Article 8 (2) (b) of the Rome Statute enunciate that serious violations of the laws and
customs applicable in international armed conflict, within the established framework
of international law wherein there lies an act of “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 or widespread, long-term and severe damage to the
natural environment would be clearly excessive in relation to the concrete and direct
overall military advantage anticipated.1

1.1 the said act of destruction of Baobab Tree Sanctuary was not intentional.

ii. In order to charge a person under subparagraph (iv) of article 8(2) (b) there must lie
the intention.2 However neither the defendant had the intention to destroy the Baobab
tree sanctuary, nor he had the knowledge of the same. His sole military objective was
to to secure the access point to the oil and to peacefully contain the villagers in their
houses until the kissakan oil miners were able to begin drilling for oil the next day.3

iii. Moreover section 8(2)(b)(iv) talks about long-term and severe damage to the natural
environment.4 The destruction of 9 years earlier planted saplings should not come
under the ambit of severe or long-term damage as the maximum life span of a baobab
tree is 100 years old.5 It cannot be said to be excessive in relation to the concrete and
direct overall military advantage anticipated as there were “saplings”.

iv. Half of the battalion had created a perimeter around the access point where they
buried 3 improvised explosive devices which were made from ammonium nitrate
fertilizer at the entrance to the roads leading to the access point which were planted
within one meter of two of the five remaining 100-year-old baobab trees in the

1
Article 8 (2) (b) of the statute
2

4
Section 8(2)(b)(iv)
5
 momaayo national park. The ammonium nitrate fertilizer enhances plant growth and
provides a ready nitrogen supply from which plants can draw nutrients from it.6
v. The UNEP was sent to investigate the overall impact on the natural environment due
to the destruction of the baobab saplings but there is no sufficient evidence to support
and substantiate the destruction of baobab saplings by the United Nations
environment program.

2. That the matter is not of sufficient gravity.

vi. Article 1 read with paragraph 10 of the preamble clearly states the Court shall
determine that a case is inadmissible where the case is not of sufficient gravity to
justify further action by the Court.7 ICC Should Consider When Appropriate, Factors
Other Than Systematicity or Scale & Social Alarm in Analysing Whether Conduct
Satisfies Article 17(1)(d)
vii. This is especially true where, for instance, the number of victims would be relatively
small in comparison to other situations, but where the impact was devastating to the
community or country concerned. The environmental issue is not of severe gravity as
the situation was the destruction of saplings that had been recently planted.
viii. Other factors that could be considered relevant to the gravity analysis include the
amount of premeditation or planning; the heinous means and methods used to commit
the crimes; the role of the perpetrator in the commission of the crimes; and the
vulnerability of the targeted group.There was no premeditation or planning to destroy
the baobab saplings which does not make it grave. Also there was also no heinous
means and methods used specifically to destroy the baobab saplings.

3. That the Article 30 of the Rome Statute shall not apply to the instant case.

ix. Article 25(3) of the Rome statute read that “In accordance with this Statute, a person
shall be criminally responsible and liable for punishment for a crime within the
jurisdiction of the Court if that person Commits such a crime, whether as an
individual, jointly with another or through another person, regardless of whether that

7
Article 1 P¶10
 other person is criminally responsible.8 In the instant case defendant had given orders
to commander Diallo to cross the border through the Momaayo National Park to
which the objective was to secure the oil access point peacefully. Merely creating a
shorter path to overcome the hurdles by the villagers should not be considered as
crime and the same shall not be charged.
x. A person shall be criminally responsible and liable for punishment for a crime within
the jurisdiction of the Court only if the material elements are committed with intent
and knowledge. Intent means in relation to conduct, that person means to engage in
the conduct or In relation to a consequence, that person means to cause that
consequence or is aware that it will occur in the ordinary course of events.9
xi. The kissakan troops by no means wanted to cause damage to the baobab saplings,
their main aim was to create a direct path to the oil access point, and to evade
Momaayan troops who were stationed along the existing roads. They had created a
direct path by creating a shorter distance to achieve their military objective.
xii. "Knowledge" means awareness that a circumstance exists or a consequence will occur
in the ordinary course of events. "Know" and "knowingly" shall be construed
accordingly. There is also no sufficient evidence to prove whether the kisakkan troops
were aware that by creating this path in ordinary circumstances, it will destroy baobab
saplings.

4. That kissaka is not a party to the additional protocol I and Additional protocol II of
the Geneva Convention 1977.
xiii. It is to be noted that amongst the applicable agreements to both the countries, kissaka
is not a part of the Additional Protocol I to the Geneva Conventions 1977 and
Additional Protocol II to the Geneva Conventions 1977 respectively. Rule 4 of the
additional protocol 1 which states that damage to the environment by way of reprisal
is prohibited will not be apply in the instant circumstances as kisaaka is not a party to
the protocol. International humanitarian law recognizes that some harm to the
environment is inevitable in armed conflict. International humanitarian law forbids
attacks against the natural environment except in those rare cases when it has become
a military objective.

8
Article 25(3) of the statute
9
Article 30 of the Rome statute
 xiv. Article 55 of the Additional Protocol I to the Geneva Conventions 1977 is not
applicable in the present situation which states that acts which cause damage to
natural environment are prohibited

xv. Rule 5 states that no part of the natural environment may be attacked unless it is a
military objective.10 Rule 8 Of customary law states that “In so far as objects are
concerned, military objectives are limited to those objects which by their nature,
location, purpose, or use make an effective contribution to military action and whose
partial or total destruction, capture, or neutralization, in the circumstances ruling at
the time, offers a definite military advantage.”11

xvi. Hence, the main objective of kisaaka was to get to the access point to drill the oil
which was a military objective thereby rule 5 is applicable for the same. It would also
provide significant benefit to the Kissakan army which couldn’t afford sufficient oil in
the past 10 years to fuel its tanks and military aircraft or to manufacture the bombs
required to protect its vast border.

xvii. Rule 12 is applicable to this situation as it prohibits indiscriminate attacks which

encompass the following which are not directed at a specific military objective, which
employ a method or means of combat which cannot be directed at a specific military
objective, which employ a method or means of combat the effects of which cannot be
limited as required by international humanitarian law; and consequently, in each such
case, are of a nature to strike military objectives and civilians or civilian objects,
including the natural environment, without distinction. 12
xviii. This rule does not make the act of kisakan army an indiscriminate act as their target
was a very specific military objective and nothing else. This rule does not cover the
destruction of baobab saplings as an indiscriminate act as the kissakan army did not
use any unlimited means in strict terms of international humanitarian law whereas, on
the other hand, they had no ulterior motive to destroy or harm the natural environment
their only intention was to procure oil which could serve them as a military advantage
which comes under the ambit of a military objective.

10
Rule 5, Customary international law, International Humanitarian law
11
Rule 8, Customary international law, International Humanitarian law
12
Rule 12, Customary international law, International Humanitarian law
 5. The military action was proportionate.

xix. Rule 14, According to the manual, “military action is proportionate if it does not
cause loss or damage to civilians which are excessive in relation to the expected
overall result. This rule cannot justify unlimited destruction or attacks against
civilians and civilian objects as such.”13
xx. The military action is proportionate in our case as it had merely created a shorter path
in the middle of the night to peacefully drill out the oil. Launching an attack against a
military objective that may be expected to cause incidental damage to the natural
environment which would be excessive in relation to the concrete and direct military
advantage anticipated is prohibited.
xxi. There is no shade of evidence to show that the damage that was caused was not
excessive but was appropriate and proportionate in relation to the concrete and direct
military advantage.
xxii. There is no evidence that the momaayo national park is declared on the world heritage
list even though kissaka and momayo have signed the Convention Concerning the
Protection of the World Cultural and Natural Heritage (1972).
xxiii. Article 55 of the Additional Protocol I to the Geneva Conventions 1977 is not
applicable in the present situation which states that acts which cause damage to
natural environment are prohibited. 14

13
Rule 14, Customary international law, International Humanitarian law
14
Article 55 of the Additional Protocol I to the Geneva Conventions 1977