Defence-Tc 9

20 TH HENRY DUNANT MOOT COURT COMPETITION, 2021
IN THE ENGLISH LANGUAGE
22 ND HENRY DUNANT TEAM

MOOT NUMBER:
COURT COMPETITION, 2023
IN THE ENGLISH
COUNSEL LANGUAGE
FOR THE DEFENCE
TEAM NUMBER: 9
COUNSEL FOR THE DEFENCE
1
22ND EDITION HENRY DUNANT MEMORIAL MOOT COURT COMPETITION
IN THE INTERNATIONAL CRIMINAL COURT
AT HAGUE, NETHERLANDS
THE PRE-TRIAL CHAMBER III
PROSECUTOR ..................................................................................... (PROSECUTION)
V.
COSMO MOSCO ........................................................................................... (DEFENCE)
MEMORIAL ON BEHALF OF THE DEFENCE
2
TABLE OF CONTENTS
A. LIST OF ABBREVIATION
……………………………………………………………………………….IV-V
B. INDEX OF AUTHORITIES…………………………………………………………………………..
…….vi-xi
i. Cases………………………………………………………………………………..………vi-vii
ii. Books & Articles….………………………………………………………………......... vii-x iii.
International Legal Instruments ………………………………………...................... x-xi
C. STATEMENT OF JURISDICTION…………………………………………………………. ……………

1
D. STATEMENT OF
ISSUES……………………………………………………………….........................2
E. STATEMENT OF FACTS………………………………………………………………………….…… 3-
4
F. SUMMARY OF PLEADINGS…………………………………………………………………...............
5-6
G. PLEADINGS………………………………………………………………………………………….... 7-
24
[1.] MR. MUSKANDER BADZI IS NOT GUILTY OF WAR CRIMES UNDER ART. 8(2)(A)(I) AND
(B)(I) OF THE STATUTE.
1.1. THE CONTEXTUAL ELEMENTS ARE NOT

SATISFIED………………………………………………………………………... 7
1.2. MR. BADZI IS NOT GUILTY FOR WILFUL KILLING UNDER ART. 8(2)(A)(I)
OF THE
STATUTE………………………………………………………………….…………….. 8-9
1.2.1. MR. BADZI DID NOT MEAN TO KILL ANY PERSONS………………………………………. 8
1.2.2. MR. BADZI WAS NOT AWARE OF THE FACTUAL CIRCUMSTANCES THAT
ESTABLISHED THEP ROTECTED STATUS OF THE PERSONS
KILLED……………………………………. 9
i
22nd EDITION HENRY DUNANT MEMORIAL MOOT COURT COMPETITION
1.3. MR. BADZI DID NOT INTENTIONALLY DIRECT ATTACKS AGAINST THE
CIVILIANS UNDER ART. 8(2)(B)(I) OF THE
STATUTE……………………………………………... 9-11
1.3.1. MR. BADZI DID NOT DIRECT AN ATTACK AGAINST
CIVILIANS…………………….…... 10 1.3.2. MR. BADZI NEVER INTENDED CIVILIAN
POPULATION TO BE THE OBJECT OF THE
ATTACK…………………………………………………………………..…………... 10-11
[2.] MR. MUSKANDER BADZI IS NOT GUILTY FOR WAR CRIMES OF WILFUL KILLING
UNDER ART. 8(2)(C)(I) AND (E)(I) OF THE STATUTE…………………………….
2.1. THE CONTEXTUAL ELEMENTS ARE NOT

SATISFIED…………………………………… 11-12
2.2. MR. BADZI IS NOT GUILTY OF MURDER UNDER ART. 8(2)(C)(I) OF THE
STATUTE…………………………………………………………. 12-13
2.3. MR. BADZI DID NOT INTENTIONALLY ATTACK AGAINST THE CIVILIAN
POPULATION UNDER ART.8(2)(E)(I) OF THE
STATUTE…………………………………………… 12-15
2.3.1. MR. BADZI DID NOT DIRECT ANY ATTACK AGAINST THE CIVILIANS…………... 13-
14
2.3.2. MR. BADZI DID NOT INTEND FOR THE CIVILIANS TO BE THE OBJECT OF THE
ATTACK………………………………………………………………………... 14-15
[3.] INTENTIONALLY ATTACKING OBJECTS THEREBY CAUSING DESTRUCTION

JUSTIFIED BY
MILITARY NECESSITY, PUNISHABLE UNDER ARTICLE 8(2)(E)(XII) OF THE STATUTE.
3.1. THE PROPERTY IN QUESTION BY ITS FUNCTION HAS BEEN MADE INTO A
MILITARY
OBJECTIVE…………………………………………………………………... 15-17
3.2. THERE WAS NO FEASIBLE ALTERNATIVE FOR OBTAINING A MILITARY
OBJECTIVE…………………………………………………………………… 17-18
ii
20TH EDITION HENRY DUNANT MEMORIAL MOOT COURT COMPETITION
[4.] MR. MUSKANDER BADZI IS NOT GUILTY OF THE WAR CRIME UNDER ART. 8(2)(C)
(II) AND (E)(VI) OF THE STATUTE FOR OUTRAGES UPON PERSONAL DIGNITY
AND PERPETRATING SEXUAL ATROCITIES AGAINST INNOCENT WOMEN.
4.1. MR. BADZI IS NOT RESPONSIBLE FOR SEXUAL ATROCITIES AS AT THE

TIME OF
OFFENCE THERE EXISTED NO ARMED
CONFLICT………………………………………………. 19-20
4.2. SUFFICIENT EVIDENCE IS NOT THERE TO ESTABLISH SUBSTANTIAL
GROUNDS TO BELIEVE THAT ACCUSED COMMITTED THE SAID OFFENCE
AS REQUIRED UNDER
ART. 61(7) OF THE
STATUTE……………………………………………………………………… 20
[5.] MR. MUSKANDER BADZI IS NOT GUILTY OF WAR CRIME UNDER ART. 8(2)(E)(IX) OF
THE
STAUTE FOR KILLING OR WOUNDING TREACHEROUSLY ENEMY COMBATANTS.
5.1. THE PERPETRATOR WAS NEITHER ENTITLED NOR OBLIGED TO ACCORD

AS HE DID
NOT INVITE EITHER THE CONFIDENCE OR BELIEF...………………………….

21-22
5.2. THE PERPETRATOR DID NOT RESORT TO ACTS OF PERFIDY………….......... 22-23
5.3. THE ATTACK WAS NOT TREACHEROUS BUT WAS FOR THE PURPOSE OF
NATIONAL
SECURITY………………………………………………………….…………… 23-24
H. PRAYER…………………………………………………………………………………...…………. 25
iii
iv
LIST OF ABBREVIATIONS
1. AP ADDITIONAL PROTOCOL
2. MFD ALLIANCE FOR FREEDOM AND DEMOCRACY
3. & AND
4. Art. ARTICLE
5. CIHL CUSTOMARY INTERNATIONAL HUMANITARIAN LAW
6. Doc. DOCUMENT
7. Ed. EDITION
8. EoC ELEMENTS OF CRIME
9. GC GENEVA CONVENTION
10. Govt. GOVERNMENT
11. IAC INTERNATIONAL ARMED CONFLICT
12. ICRC INTERNATIONAL COMMITTEE OF RED CROSS
13. ICC INTERNATIONAL CRIMINAL COURT
14. ICTR INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA
15. ICTY INTERNATIONAL CRIMINAL TRIBUNAL OF YUGOSLAVIA
16. IHL INTERNATIONAL HUMANITARIAN LAW
17. ILC INTERNATIONAL LAW COMMISSION
18. J. JOURNAL
19. L. LAW
v
20. Pg. PAGE
21. ¶ PARAGRAPH
22. ¶¶ PARAGRAPHS
23. PTC PRE-TRIAL CHAMBER
24. Rep. REPORT
25. Statute ROME STATUTE
26. TC TRIAL CHAMBER
27. UN UNITED NATIONS
28. UNSC UNITED NATIONS SECURITY COUNCIL
29. Vol. VOLUME
vi
INDEX OF AUTHORITIES
CASES CITED
ICC CASE LAWS
[1.] Prosecutor v. Bemba, ICC-01/05-01/08, Decision on the confirmation of charges\

Trial Chamber II | Prosecutor v. Katanga | 07 March 2014 | ICC-01/04-01/07-
3436Teng.
[2.] The Prosecutor v. Tadic, Case No. IT-94-1-T (ICTY), Judgement of May 7, 1997
[3.] Prosecutor v. Garda, ICC-02/05-02/09, Decision on the Confirmation of Charges, 8
February 2010.
[4.] Prosecutor v Lubanga (Judgment) ICC Appeals Chamber ICC-01/04-01/06-A-5, 1

December 2014, at [447]
[5.] Prosecutor v. Uhuru Kenyatta, ICC, ICC-01/09-02/11, Withdrawal of Charges,

December 5, 2014.
[6.] Prosecutor v. Naletilić and Martinović, (2003), IT-98-34-T, Trial Judgement,

(“Naletilić”), [60]
[7.] The Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, 7 May 1997, ICTY.
[8.] The Prosecutor v. Abdallah Banda Abakaer Nourain and Nourain and Saleh
Mohammed Jerbo Jamus Case No. ICC- 02/05-03/09, Decesion on
Disqualification of a judge on April 2, 2012.
[9.] Prosecutor v. Gbagbo, No. ICC-02/11-01/11-656
ICTY CASE LAWS
[1.] The Prosecutor v. Tadic, Case No. IT-94-1-T (ICTY), Judgement of May 7, 1997
[2.] Judgement, The Prosecutor v. Jean Paul Akayesu, ICTR-96-4-T, para. 589.
[3.]
Prosecutor v. Dario Kordić, ICTY, IT-95-14/2, Appeals Chamber, Dec. 17, 2004,
¶47.
The Prosecutor v. Blaskic, Case No. IT-95-14-T (ICTY), Judgment on March 3,

[4.]
2000
[5.]
Prosecutor v. TihomirBla[Ki], ICTY, IT-95-14-T, Trial Chamber Judgment, March 3,
2000
[6.] Prosecutor v. Blagojevic, IT-02-60-T, Judgement, Trial Chamber I, 17 January 2005
1
BOOKS AND ARTICLES
[1.] David Luban, A theory of Crimes against Humanity, Volume 29 issue, Yale Journal
of International Law, 2004.
[2.]
Anthony Cullen, The concept of Non International Armed Conflict in International
Humanitarian Law, Volume 25, Cambridge studies in International and
Comparative Law 2013.
[3.]
Michael Barton Akehurst, Jurisdiction in International Law, 46 British Year Book of
International Law.
[4.]
Antonio Cassese, Excerpts from A. Cassese, International Criminal Law, Volume
3rd Edition, 2013.
[5.] Kai Ambos, Treatise on International Criminal Law, Volume II, 2014.
[6.]
Kai Ambos and Steffen Wirth, The Current Law of Crimes against Humanity, An
analysis of UNTAET Regulation 15/2000, 2002.
[7.] Mahmoud CherifBassiouni, Crimes against Humanity: The Case for a Specialised
Convention, Volume.9, 2010.
INTERNATIONAL LEGAL INSTRUMENTS
[1.] ADDITIONAL PROTOCOL I: Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of International Armed
Conflicts (Protocol I) 8 June 1977

[2.]
ADDITIONAL PROTOCOL II: Protocol Additional to the Geneva Conventions of
August 1949, and relating to the Protection of Victims of Non-International Armed
Conflicts (Protocol II) 8 June 1977

[3.]
ELEMENTS OF CRIMES: Elements of Crimes of the International Criminal Court,
ICC-ASP/1/3
[4.] ROME STATUTE: Rome Statute of the International Criminal Court (July 1, 2002)
[5.]
RULES OF PROCEDURE AND EVIDENCE: Rules of Procedure and Evidence
2
International Criminal Court, U.N. Doc. PCNICC/2000/1/Add.1 (2000)
STATEMENT OF JURISDICTION
It is hereinafter most respectfully submitted that the Prosecutor has approached this International
Criminal Court and he has submitted that it has jurisdiction to exercise this petition under Article 5
read with Article 13 of the Rome Statute of the International Criminal Court, 1998. Article 5(1)
states as follows -
“The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a while. The Court has jurisdiction in accordance with this
Statute with respect to the following crimes:
(a) The Crime of Genocide;
(b) Crimes against humanity;
(c) War Crimes;
(d) The Crime of Aggression.”
And both Monstera and Canciferous are parties to the Rome Statute of the International Criminal
Court.
The Defense is not contending the jurisdiction of this Hon’ble Court.
3
STATEMENT OF ISSUES
COUNT I OF THE MOOT PROPOSITION
ISSUE: I
Whether Mr. President be found guilty of war crimes under Article 28(b) read with
Article (8)(2)(b)(xi) of the Rome Statute?
COUNT II OF THE MOOT PROPOSITION
ISSUE: II
Whether Mr. President be found guilty of war crimes under Article 25(3)(b) read with
Article (8)(2)(b)(iv) of the Rome Statute?
4
STATEMENT OF FACTS
PARTIES TO THE CONFLICT
The parties to the Pre-Tribunal Chamber for confirmation of charges are PROSECUTOR
(hereinafter prosecution) and MR. COSMO MOSCO (hereinafter defence).
UNDISPUTED FACTS
In the realm of geography, Canciferous and Monstera stand as two states separated by the
Peace Sea. Nestled between these lands of distinction is the Democratic Republic of Loria
(DRL), occupying space between Monstera in the east and Chiobar in the west. Ru Ru
Island, a fabled jewel in the azure, houses indigenous tribe and sacred coral leaves. The
island's primary energy source is imported liquefied natural gas (LNG) from DRL, regularly
transported by the Chameleon.
Canciferous, under President Cosmo Mosco, commands the Canciferous Armed Forces
(CAF), while Monstera, led by King Mutu, relies on the Monsteran Defence Force (MDF).
Their tumultuous history spans 200 years, marked by several conflicts over the contested
sovereignty of Ru Ru Island. In the aftermath of devastating violence, they inked the
"Friendly Relations Treaty." This accord permits Canciferous access to Monstera's oil
reserves for 15 years, with the condition that all CAF forces must withdraw from Monsteran
territory. Nevertheless, With the valuable backing of DRL and in proactive preparation for
potential aggression from Canciferous, the MDF strategically erected a military outpost on
an unpopulated isle positioned 2.3 nm to the north of Ru Ru Island.
Monstera's economic rise began with Ru Ru Island's tourist influx in 2004. Tensions
escalated over its sovereignty, contested by Canciferous. Under President Cosmo Mosco's,
a lucrative oil reserve was found near Ru Ru Island. Mosco proposed an oil extraction deal,
but King Mutu declined, citing the island's sacredness and past conflict. Enraged, Mosco
ordered a CAF military operation to seize the island.
5
TIMELINE OF EVENTS
October 1, 2019 CAF navy, led by Admiral Niptup, initiated a campaign to seize
Ru Ru Island with the flagship Deathstar. MDF prepared naval
forces to intercept the CAF.
October 4, 2019 CAF launched drones and fired missiles at the MDF's military
base, causing casualties and destruction. MDF retaliated with
missile attacks on CAF vessels.
October 5, 2019 The missile attack resulted in 8 MDF soldiers, 43 fishermen,
and 26 Monsteran coast guards killed, along with the
destruction of the fishing vessels and their catch.
October 6, 2019 CAF's capture of the Port of Milkeno and during that period a
vital information, facilitated by a Canciferan intelligence agent,
was discreetly leaked about an impending LNG shipment
carrying the formidable RaDISh system. This strategic move
aimed to enhance the perception of MDF's naval strength and
deter the CAF's advances while awaiting potential support from
DRL.
October 29, 2019 Admiral Niptup commanded the deployment of a submarine
equipped with cable-cutting capabilities to sever the undersea
cable.
January 6, 2020 As the Chameleon vessel neared the Port, Admiral Niptup
ordered a missile strike, leading to the loss of 13 merchant crew
and 24 Ruruans, an LNG leak near the coral reef, and a
subsequent explosion. A search and rescue operation followed.
January 13, 2020 International media reported a highly transmissible new strain of
COVID-19 called 'Deathicron' emerged, causing painful boils,
high fevers, and a 40% mortality rate without immediate medical
6
care. Another illness, 'Murvey,' presented similar symptoms but
was not life-threatening.
January 20, 2020 After the weather subsided, the Deathstar reached Canciferous
with 26 individuals. Five had died onboard for unknown
reasons. Detainees were placed in a temporary camp with
limited resources, given 5L of water and 2 meals daily. The CAF
arranged vegetable farming to support their well-being.
May 15, 2020 Monstera and DRL unanimously referred the situation to the
ICC.
June 20, 2020 ICC Prosecutor informed Monstera, DRL, and Canciferous of
sufficient evidence to open an investigation.
November 12, 2020 The ICC issued an arrest warrant for President Mosco.
7
SUMMARY OF PLEADINGS
8
PLEADINGS
[ISSUE 1]: WHETHER MR. PRESIDENT BE FOUND GUILTY OF WAR CRIMES UNDER
ARTICLE 28(B) READ WITH ARTICLE (8)(2)(B)(XI) OF THE ROME STATUTE?
It is humbly submitted that Mr. President is not guilty of war crimes under Article 28(b) read
with article (8)(2)(B)(XI) because the essential elements of ARTICLE 28(B) and ARTICLE (8)
(2)(B)(XI) are not fulfilled.
[1.1] Mr. Cosmo Mosco is not guilty of war crimes under art. 28(b) of the statute.
It is unequivocally asserted that Mr. Mosco stands free from culpability in the purported war
crimes, owing to two profound and substantive reasons. [1.1.1] The fundamental
contextual elements requisite for establishing guilt beyond reasonable doubt remain
woefully unfulfilled. [1.1.2] The revered principle of command responsibility, which has
often been invoked to hold high-ranking individuals accountable, finds no suitable
application in the present case. Thus, in the hallowed halls of justice, Mr. Mosco emerges
unscathed from the shadow of these grave allegations.
[1.1.1] The contextual elements are not satisfied.
With all due humility, it is asserted that the requisites delineated in Article 28(b) remain
unfulfilled, being enumerated as follows: firstly, [1.1.1.1] knew or, consciously disregarded
information which clearly indicated, [1.1.1.2] Crimes concerned activities … within the
effective responsibility and control and [1.1.1.3] Necessary and reasonable measures … to
prevent or repress … or to submit the matter to the competent authorities for investigation
and prosecution’.
[1.1.1.1] knew or, consciously disregarded information which clearly indicated
In the context of this intricate matter, the establishment of the mental element assumes
paramount importance. In order to hold an accused individual accountable, it becomes
imperative to meticulously ascertain the presence of both the mental element and a
comprehensive grasp of the factual circumstances surrounding the case.
9
The illustrious precedent set by the International Criminal Tribunal for Rwanda (ICTR), in
the eminent case of Prosecutor v. Akayesu1, delineates the criteria for establishing
culpability in such grave matters. It was unequivocally determined that, at the time of the
tragic incident, the accused must have harboured a specific intention to carry out the act of
killing or inflict grievous bodily harm upon the deceased.
Nevertheless, the defence now presents a compelling argument on behalf of Mr. Mosco,
laying emphasis on his lack of awareness and any intent to cause harm to civilians. There
is no direct or even indirect inference to suggest that Mr. Mosco disregarded any
information pertaining to the potential harm to civilians. The defence contends that the
attack, transpiring on the 4th and 5th of October 2019, was singularly directed at the naval
vessel2 of the opposition, undertaken with the sole purpose of neutralizing their threat. The
precise missile strike was a targeted endeavour aimed at eradicating the opposition's naval
capabilities, with no conscious intent to bring harm to civilians. Furthermore, the defence
strongly asserts that the primary focus on the enemy naval ship and the glaring absence of
any discernible reason to consider the targets as non-combatants underscore the
inadvertent and unintended nature of the dire consequences.
[1.1.1.2] Crimes concerned activities … within the effective responsibility and
control.
It is respectfully presented that, drawing from the cases of Prosecutor v. Laurent Gbagbo
and Charles Blé Goudé3 and Prosecutor v. Uhuru Kenyatta4, it becomes evident that the
burden of proof lies squarely on the prosecution to establish, beyond a reasonable doubt,
that an accused had the requisite effective control over the forces responsible for
committing the alleged crimes.
Nevertheless, In the instance of Mr. Mosco, the factual circumstances demonstrate a clear
distinction. The evidence at hand indicates that Admiral Niptup was the individual
1
Prosecutor v. Jean Paul Akayesu, ICTR, ICTR-96-4-A-T, Judgement, Trial Chamber, October 2, 1998.
2
Moot Proposition, ¶ 25.
3
Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, ICC, ICC-02/11-01/15, Judgment, January 15, 2019.
4
Prosecutor v. Uhuru Kenyatta, ICC, ICC-01/09-02/11, Withdrawal of Charges, December 5, 2014.
10
overseeing the activities of the forces in question, and it was solely the Admiral who issued
orders for the launching of drones 5 and missiles6, as well as the cutting of the undersea
cable7. In addition, it is essential to highlight that the responsibility for the missile strike on
the Chameleon, which led to casualties and LNG spillage, lies solely with Admiral Niptup 8.
The directive to proceed with the strike was issued by Admiral Niptup, emphasizing his
exclusive involvement in the decision-making process.
The precedent set by these notable cases underscores the critical importance of presenting
compelling evidence to establish the link between an accused and the actions of their
subordinates. In the absence of such evidence, it is incumbent upon the court to ensure
that justice is upheld and the accused is not held accountable for acts beyond their
purview.
Considering the circumstances surrounding Mr. Mosco's case, it becomes apparent that the
responsibility for the alleged actions lies with Admiral Niptup, the one exercising effective
control. As such, the case should be approached with careful scrutiny, ensuring that the
principle of effective control is diligently examined and that Mr. Mosco is not unduly
burdened with culpability for actions over which he had no authority or direction.
[1.1.1.3] Necessary and reasonable measures … to prevent or repress … or to
submit the matter to the competent authorities for investigation and prosecution’.
In the case of Prosecutor v. Delalić et al. (Celebici case)9 before the ICTY, the accused held
prominent positions at a Bosnian Croat-run detention camp during the Bosnian War. The
ICTY confirmed their effective control over the camp and its personnel. Nonetheless,
certain accused individuals were acquitted due to their implementation of reasonable
measures to prevent abuse and mistreatment of detainees.
Drawing a parallel in our current scenario, when faced with Admiral Niptup's scheme to
disrupt MDF's communications for the RaDISh system, President Mosco swiftly acted,
5
6
7
8
9
Prosecutor v. Delalić et al., ICTY, IT-96-21-T, Judgement, November 16, 1998.
11
directing the government to ensure ample connectivity through satellite backup 10 (Marlink)
for the surrounding areas. Consequently, the MDF effectively rerouted data traffic and
relied on Marlink as a backup, effectively countering any disruption. Moreover, a meticulous
and thorough search and rescue mission was executed, resulting in the successful retrieval
of the crew and MDF personnel from both the Chameleon and the water, accompanied by
the provision of vital medical assistance11 at the Death Star.
These exemplary actions by President Mosco, akin to the acquitted accused in the Celebici
case, demonstrate the application of reasonable measures to prevent or repress any
commission of crimes, signifying his steadfast commitment to protecting the well-being of
those under his care.
[1.2] Mr. Cosmo Mosco Is Not Guilty of War Crime Under Art. 8(2)(B)(Xi) Of The
Statute For Killing Or Wounding Treacherously Killing Or Wounding Treacherously
Individuals Belonging To The Hostile Nation Or Army.
May it please the Honourable Judges, the defense, with utmost humility, advances its
compelling contention that Mr. Cosmo Mosco stands free from culpability under the ambit
of Article 8(2)(b)(xi) of the esteemed Rome Statute. To elucidate the foundation of our
defense, it is imperative to address the prerequisites outlined under Article 8(2)(b)(xi) of the
Rome Statute, which notably remain unmet in the present case.
Firstly, we assert that the accused, neither possessed entitlement nor obligation to solicit or
foster the confidence or belief of any opposing party. Consequently, the essential premise
for the crime in question remains unsubstantiated, as the accused's actions did not extend
an invitation for reliance or trust.
Furthermore, it is crucial to emphasize that the accused did not resort to any acts of perfidy,
a notion intricately linked to treacherous conduct. The defense firmly avers that the
10
11
12
accused abstained from any deceitful or treacherous measures, thereby negating any
assertion of guilt under Article 8(2)(b)(xi) of the Rome Statute.
[1.2.1] The perpetrator was neither entitled nor obliged to accord as he did not invite
either the confidence or belief
As defined under established legal principles, treachery involves a breach of faith or
confidence to gain an advantage in combat. It encompasses actions that induce an
adversary to believe in entitlement or obligation to protection under the rules of
international law applicable in armed conflict, only to betray that very confidence. 12
However, it is essential to recognize that ruses of war, including the use of camouflage,
decoys, mock operations, and misinformation, do not invoke the confidence of the
adversary and thus remain permissible.
Amidst the prevailing circumstances, it becomes overtly evident that Mr. President's actions
stand devoid of any treacherous intent. His directives did not extend an invitation for
reliance or trust from the adversary. Rather, the presidential order was astutely crafted,
employing the artifice of a strategic decoy manoeuvre to secure the contested land,
motivated by a noble and patriotic intent to protect and serve the people of his cherished
homeland.
Subsequently, it is imperative to delineate that the ensuing launch of missiles upon
reaching the contested territory was not in accordance with the explicit instructions of the
President. This crucial distinction merits keen observation, as the decision to engage in
missile deployment rested solely within the discretion of the appointed admiral. 13 Therefore,
it can be aptly contended that while the admiral was indeed tasked with reaching the
contested land, the subsequent actions leading to missile launch lay outside the purview of
the President’s orders, effectively shifting the liability for said actions solely upon the
admiral's shoulders. In this legal panorama, the undeniable absence of treachery in Mr.
President's actions casts an ethereal light on the matter. His motivations, grounded in the
12
AP I, Art. 37(1).
13
13
pursuit of national welfare, remain untarnished, and the demarcation between his directives
and the admiral's discretion assumes paramount significance. Thus, the mantle of
responsibility for the missile launch ought to be borne solely by the admiral, exonerating
Mr. President from any taint of treacherous conduct. Such manoeuvres are well within the
ambit of recognized military tactics, qualifying as ruses of war, and consequently, cannot be
labelled as treachery.14
Intriguingly, the contentions put forth by the prosecutor assume a paradoxical nature when
juxtaposed against the actions of the nation’s seeking intervention. These very nations,
while demanding military involvement, were perilously poised on the precipice of deploying
lethal and autonomous weaponry,15 posing a dire threat to the serene coral reefs and
civilian populace encircling the island. Such a juxtaposition calls into question the
consistency and integrity of the prosecutor's arguments.
Central to the matter is Article 8(2)(b)(xi) of the Rome statue, which crucially hinges on the
procurement of confidence or belief for the explicit purpose of betrayal. 16 In a remarkable
turn of events, the MDF employed a former Canciferan intelligence agent, who concurrently
served President Mosco in a personal capacity while maintaining ties to Monstera. 17 This
manoeuvre aimed to instil a sense of trust in the adversary, only to insidiously betray them
through cunning and deceitful means. In marked contrast, the forces of the (CSF)
demonstrated exceptional proactivity in their noble pursuit of safeguarding the lives of the
island's inhabitants. Undeniably, their actions reflect a laudable dedication to humanitarian
objectives.
[1.2.2] The defender did not resort to acts of perfidy.
The defender staunchly refutes any assertion of perfidy or treacherous tactics employed by
their client during armed combat. The utilization of the decoy technique by the Deathstar
must unequivocally be deemed outside the scope of perfidious actions, as it pertains to a
14
Practice relating to ruses of war, Rule 57.
15
16
Prosecutor v. Tadic, ICTY, IT-94-1-A, Judgement, Appeals Chamber, 15 July 1999.
17
Supra;3.
14
legitimate facet of military strategy and assault.18 Additionally, it falls squarely within the
realm of ruses of war, which are intentional measures aimed at misleading an adversary or
inducing reckless behaviour. These ruses, though calculated, remain in conformity with the
prevailing rules of international law applicable in armed conflict and lack the element of
inviting adversary confidence regarding protection under such laws,19 rendering them
permissible and within the ambit of acceptable military tactics.
Moreover, the connection between the Deathstar’s attack and the esteemed President
must be severed, as no directive was issued by the President to facilitate or endorse that
particular course of action.20 The unfortunate event that resulted in civilian casualties
occurred due to the actions of an admiral dutifully serving in the combat arena. The
President unequivocally disavows any intent to harm civilians, as it does not align with his
genuine intentions or commands. The delineation between legitimate military strategies
and unlawful actions must be unequivocally upheld, protecting the reputation and intentions
of the President amidst the complexities of armed conflict.
[1.3] Non-applicability of the principle of command/superior responsibility.
May it please the esteemed Judges, the defendant, in advancing its compelling contention,
humbly asserts that Mr. Cosmo Mosco is exonerated from any liability by virtue of the
fundamental principle of command responsibility. This principle, in its essence, mandates
that a superior assumes direct control and possesses awareness of all events transpiring
at the locus of conflict, which regrettably does not align with the circumstances surrounding
our esteemed client.21
Crucially, the foundational tenet of command responsibility necessitates that the superior
maintains direct oversight and cognizance of all occurrences transpiring under their
authority. Yet, in our case, it becomes patently evident that Mr. President lacked such direct
control and awareness of the unfolding events on the battleground.
18
Prosecutor v. Katanga, ICC, ICC-01/04-01/07-717, 7 March 2014.
19
APII, Art. 37(2).
20
21
Art. 7(3) of the ICTY Statute.
15
Furthermore, the second facet of command responsibility compels the superior to take
necessary measures to suppress or control any transgressions perpetrated by
subordinates under their command. Given the absence of knowledge regarding the attack,
how could Mr. President possibly act to suppress it? In our case, the defendant contends
that Mr. Cosmo Mosco's conduct stands shielded by the principle of command
responsibility. The dearth of direct control and awareness, coupled with the inability to take
corrective actions without pertinent information, attests to his innocence and impeccable
adherence to the principles of command responsibility.
[1.3.1] Direct control and knowledge of the attacks cannot be established.
Indeed, it is incontrovertible that both nations involved in this matter have acceded to the
Additional Protocol I of 1977. Within the confines of this Protocol, Article 87 delineates the
pivotal duties and obligations of military commanders concerning their subordinates. It
explicitly emphasizes that superiors bear the onus of preventing and, if necessary,
suppressing and reporting grave breaches committed by their subordinates. 22 Only in the
event of failure to fulfil these duties do a commander expose themselves to potential
criminal responsibility for their inaction.
In the present case, the salient facts stand resolute, revealing a clear demarcation between
the President's directives and the actions undertaken by the military admiral amidst the
fervour of warfare. The President's order was explicit in directing the control of the village,
without any explicit endorsement for drone attacks or missile launches. The decisions to
undertake such immediate actions were solely attributable to the military admiral, who
acted independently and without prior consultation with the President. 23 Moreover, it is vital
to underscore that the gravity of the actions executed by the admiral transpired
unbeknownst to the President, thereby obviating any possibility of the President issuing
orders to stop such grievous acts. The President’s lack of awareness about the unfolding
22
Art. 6(3) of the ICTR Statute.
23
Art. 28 of the ICC Statute.
16
events and the subsequent cable cut rendered him incapable of intervening or halting the
transgressions.
Nonetheless, upon being apprised of the grave occurrences, the President promptly
reacted by demanding the establishment of a communication network to provide
surrounding location details. In a bid to rectify the situation, he ordered the arrangement of
Starlink, a communication infrastructure, even invoking its usage by their counterparts for
mutual assistance. Eloquently presented, the President's lack of direct control over the
unfolding events and his earnest efforts to rectify the situation, once informed, underscore
his dissociation from the grave acts perpetrated by the military admiral. 24 Consequently, it
stands manifest that the President was neither complicit nor able to command the
cessation of said grave actions, thereby vindicating him from any potential criminal liability
under Article 87 of Additional Protocol I.
PRAYER
24
Art. 86(2) AP I.
17
Wherefore in light of the questions presented, arguments advanced, and the authorities
cited, the Defence respectfully requests the court to adjudge, and declare that:
1. Mr. President does not have commander’s responsibility, and therefore be found not
guilty of war crimes as per Article 28(b) of the Rome Statute and all charges
dismissed.
2. Mr. President be found not guilty of killing or wounding treacherously individuals
belonging to hostile nation as per Article 8(2)(b)(xi) of the Rome Statute and all
charges dismissed.
3. Mr. President is not individually criminally liable for ordering, soliciting, or inducing the
commission of war crimes as per Article 28(b) read with Article 8(2)(b)(iv) of the
Rome Statute, therefore be found not guilty, and all charges dismissed.
All of which is respectfully submitted
On behalf of the Counsels of the Defendant.
18

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20 TH HENRY DUNANT MOOT COURT COMPETITION, 2021

IN THE ENGLISH LANGUAGE

22 ND HENRY DUNANT TEAM

COUNSEL FOR THE DEFENCE

IN THE INTERNATIONAL CRIMINAL COURT

THE PRE-TRIAL CHAMBER III

PROSECUTOR ..................................................................................... (PROSECUTION)

COSMO MOSCO ........................................................................................... (DEFENCE)

MEMORIAL ON BEHALF OF THE DEFENCE

C. STATEMENT OF JURISDICTION…………………………………………………………. ……………

1.1. THE CONTEXTUAL ELEMENTS ARE NOT

2.1. THE CONTEXTUAL ELEMENTS ARE NOT

[3.] INTENTIONALLY ATTACKING OBJECTS THEREBY CAUSING DESTRUCTION

MILITARY NECESSITY, PUNISHABLE UNDER ARTICLE 8(2)(E)(XII) OF THE STATUTE.

3.2. THERE WAS NO FEASIBLE ALTERNATIVE FOR OBTAINING A MILITARY

AND PERPETRATING SEXUAL ATROCITIES AGAINST INNOCENT WOMEN.

4.1. MR. BADZI IS NOT RESPONSIBLE FOR SEXUAL ATROCITIES AS AT THE

OFFENCE THERE EXISTED NO ARMED

4.2. SUFFICIENT EVIDENCE IS NOT THERE TO ESTABLISH SUBSTANTIAL

GROUNDS TO BELIEVE THAT ACCUSED COMMITTED THE SAID OFFENCE

ART. 61(7) OF THE

STAUTE FOR KILLING OR WOUNDING TREACHEROUSLY ENEMY COMBATANTS.

5.1. THE PERPETRATOR WAS NEITHER ENTITLED NOR OBLIGED TO ACCORD

NOT INVITE EITHER THE CONFIDENCE OR BELIEF...………………………….

5.2. THE PERPETRATOR DID NOT RESORT TO ACTS OF PERFIDY………….......... 22-23

2. MFD ALLIANCE FOR FREEDOM AND DEMOCRACY

5. CIHL CUSTOMARY INTERNATIONAL HUMANITARIAN LAW

8. EoC ELEMENTS OF CRIME

10. Govt. GOVERNMENT

11. IAC INTERNATIONAL ARMED CONFLICT

12. ICRC INTERNATIONAL COMMITTEE OF RED CROSS

13. ICC INTERNATIONAL CRIMINAL COURT

14. ICTR INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

15. ICTY INTERNATIONAL CRIMINAL TRIBUNAL OF YUGOSLAVIA

16. IHL INTERNATIONAL HUMANITARIAN LAW

17. ILC INTERNATIONAL LAW COMMISSION

20. Pg. PAGE

23. PTC PRE-TRIAL CHAMBER

24. Rep. REPORT

25. Statute ROME STATUTE

26. TC TRIAL CHAMBER

27. UN UNITED NATIONS

28. UNSC UNITED NATIONS SECURITY COUNCIL

29. Vol. VOLUME

ICC CASE LAWS

[1.] Prosecutor v. Bemba, ICC-01/05-01/08, Decision on the confirmation of charges\

[4.] Prosecutor v Lubanga (Judgment) ICC Appeals Chamber ICC-01/04-01/06-A-5, 1

[5.] Prosecutor v. Uhuru Kenyatta, ICC, ICC-01/09-02/11, Withdrawal of Charges,

[6.] Prosecutor v. Naletilić and Martinović, (2003), IT-98-34-T, Trial Judgement,

[9.] Prosecutor v. Gbagbo, No. ICC-02/11-01/11-656

ICTY CASE LAWS

The Prosecutor v. Blaskic, Case No. IT-95-14-T (ICTY), Judgment on March 3,

[6.] Prosecutor v. Blagojevic, IT-02-60-T, Judgement, Trial Chamber I, 17 January 2005

BOOKS AND ARTICLES

INTERNATIONAL LEGAL INSTRUMENTS

[1.] ADDITIONAL PROTOCOL I: Protocol Additional to the Geneva Conventions of 12

August 1949, and relating to the Protection of Victims of International Armed

Conflicts (Protocol I) 8 June 1977

August 1949, and relating to the Protection of Victims of Non-International Armed

Conflicts (Protocol II) 8 June 1977

International Criminal Court, U.N. Doc. PCNICC/2000/1/Add.1 (2000)

COUNT I OF THE MOOT PROPOSITION

COUNT II OF THE MOOT PROPOSITION