ICC MEMORIAL

Issues:

1. Whether or not General Arthur Reed committed the war crime of intentionally launching an
attack in the knowledge that such attack will cause incidental loss of life of injury to civilians or damage
to civilian objects or widespread, long-term and severe damage to the natural environment which would
be clearly excessive in relation to the concrete and direct overall military advantage anticipated (Article 8
(2)(b)(iv)). This is on the basis of individual criminal responsibility for committing, whether as an
individual, jointly with another or through another person (Article 25 (3)(a)), with respect to the artillery
attack and air strikes on Kebia between 17 and 18 July 2009.

2. Whether or not General Arthur Reed committed the war crime of intentionally directing
attacks against a hospital, which is not a military objective (Article 8 (2)(b) (ix)). This is on the basis of
individual criminal responsibility for ordering, soliciting or inducing (Article 25 (3)(b)), with respect to the
attack against the Municipal Hospital in Kiesh, on 20 July 2009.

3. Whether or not General Arthur Reed committed the war crime of torture or inhumane
treatment of persons protected under the provisions of the relevant Geneva Convention (Article 8
(2)(a)(ii)). This is on the basis of superior responsibility (Article 28), with respect to treatment of
detainees in Westwood Prison, in particular, the practice of solitary confinement and forced feeding.

Law:

Relevant Law for First Issue:

The Rome Statute of the International Criminal Court (often referred to as the International
Criminal Court Statute or the Rome Statute), Article 8 (2)(b)(iv), which defines war crimes among other
definitions as: other serious violations of the laws and customs applicable in international armed conflict,
within the established framework of international law, specifically, 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 which would be clearly
excessive in relation to the concrete and direct overall military advantage anticipated.

Article 25 (3)(a) of the same statute provides 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 other person is criminally responsible.

Relevant Law for Second Issue:

 The Rome Statute of the International Criminal Court (often referred to as the International
Criminal Court Statute or the Rome Statute), Article 8 (2)(b)(ix), which defines war crimes among other
definitions as: other serious violations of the laws and customs applicable in international armed conflict,
within the established framework of international law, specifically, intentionally directing attacks against
hospitals and places where the sick and wounded are collected, provided they are not military
objectives.

Article 25 (3)(b) of the same statute provides 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 orders, solicits or induces the commission of such a crime which in fact occurs or is attempted.

Relevant Law for Third Issue:

The Rome Statute of the International Criminal Court (often referred to as the International
Criminal Court Statute or the Rome Statute), Article 8 (2)(a)(ii), which defines war crimes among other
definitions as: grave breaches of the Geneva Conventions of 12 August 1949, namely, an act against
persons or property protected under the provisions of the relevant Geneva Convention - torture or
inhuman treatment, including biological experiments.

Article 28 of the same statute provides for the responsibility of commanders and other
superiors. To wit, the following are in addition to other grounds of criminal responsibility under this
statute for crimes within the jurisdiction of the Court:

1. 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 or her effective
command and control, or effective authority and control as the case may be, as a result of his or her
failure to exercise control properly over such forces, where:

a. That military commander or person either knew or, owing to the circumstances at the time,
should have known that the forces were committing or about to commit such crimes; and

b. That 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.

2. With respect to superior and subordinate relationships not described in paragraph (a), a
superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by
subordinates under his or her effective authority and control, as a result of his or her failure to exercise
control properly over such subordinates, where:

a. The superior either knew, or consciously disregarded information which clearly indicated, that
the subordinates were committing or about to commit such crimes;

b. The crimes concerned activities that were within the effective responsibility and control of the
superior; and
 c. The superior 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.

Application:

Count One – With respect to the artillery attack and air strikes on Kebia between 17 and 18 July 2009.
Article 8 (2) (b) (iv)
War crime of excessive incidental death, injury, or damage

Elements and Their Proof

1. Element: The perpetrator launched an attack.

Proof:
a. On 17 July, at around 18:00h, 12 artillery shells landed on the BAS factory compound.
b. At 6:00h on 18 July 2009, an armed drone launched a first strike at Bing’s building. At
6:30h, a second missile was launched. Both missiles hit the building.

2. Element: The attack was such that it would cause incidental death or injury to civilians or
damage to civilian objects or widespread, long-term and severe damage to the natural
environment and that such death, injury or damage would be of such an extent as to be clearly
excessive in relation to the concrete and direct overall military advantage anticipated.

The expression “concrete and direct overall military advantage” refers to a military
advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or
may not be temporally or geographically related to the object of the attack. The fact that this
crime admits the possibility of lawful incidental injury and collateral damage does not in any way
justify any violation of the law applicable in armed conflict. It does not address justifications for
war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent
in determining the legality of any military activity undertaken in the context of an armed conflict.

Proof:

a. In BAS factory compound, around 15 workers were killed and another 30 were
severely injured. These are civilians in the factory who at that time merely producing civilian
materials. Such is excessive to their concrete and direct overall military advantage.

b. In the attack at Bing’s building, thirty-five persons were killed, including 5 members of
Bing’s family, 20 building residents, as well as 10 patrolling soldiers. Another 50 persons were
injured. Considering that it is an apartment building and two medical staffs that were merely
helping were included in the deaths, and that armed drones had to be used, such are excessive
to their concrete and direct overall military advantage, notwithstanding that the main target
who is Bing wasn’t even there.
3. Element: The perpetrator knew that the attack would cause incidental death or injury to civilians
or damage to civilian objects or widespread, long-term and severe damage to the natural
environment and that such death, injury or damage would be of such an extent as to be clearly
excessive in relation to the concrete and direct overall military advantage anticipated.

This knowledge element requires that the perpetrator make the value judgment as
described therein. An evaluation of that value judgment must be based on the requisite
information available to the perpetrator at the time.

Proof:

a. At an earlier meeting, on February25, 2009, “Minister Atom expressed his concern

over civilian casualties possibly resulting from artillery attacks and air strikes. General Reed
responded that “Collateral damages cannot be avoided.”

b. General Reed approved a list of targets for artillery attacks and air strikes, with
detailed coordinates for each target. This even included the privately-owned BAS factory which
mainly produced bolts, screws and other metal products. In a press conference on July 19, Bing
even stressed to the media that all the lights in the factory were on at the time of the attack,
which could be easily observed from a distance and was a clear indication that there were
people inside the factory.

4. Element: The conduct took place in the context of and was associated with an international
armed conflict.

Proof:

Kiesh is Kebia’s main city. Kiesh served as the main control, communication, and
logistical centre for the Bethuisian forces. Therefore, taking over Kiesh plays a major role in the
international armed conflict between the states Alphon and Bethuis, in their aim of putting Kebia
under their control.

5. Element: The perpetrator was aware of factual circumstances that established the existence of an
armed conflict.

Proof:

When the Alphonian government declared Kebia under a state of emergency, it

dispatched several AAF units, which were put under the command of General Arthur Reed. The
Emergency Decree even allowed the military commander to order the arrest and detention of any
person deemed to present security threat. In fact, he was the commander of AAF when they lost
Kiesh to DKF and PAB. Thus, it is natural that General Reed knew of the factual circumstances that
established the existence of the said armed conflict.
Count Two – With respect to the attack against the Municipal Hospital in Kiesh on 20 July 2009
Article 8 (2) (b) (ix)
War crime of attacking protected objects

The presence in the locality of persons specially protected under the Geneva Conventions of 1949
or of police forces retained for the sole purpose of maintaining law and order does not by itself render
the locality a military objective.

Elements

1. Element: The perpetrator directed an attack.

Proof:
In 21 July 2009, at 18:05, the AAF squad was approaching the Hospital. Whereby, the
squad commander then ordered his men to fire at the Hospital from all direction.

2. Element: The object of the attack was one or more buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals or places where the sick and
wounded are collected, which were not military objectives.

Proof:
20 July 2009, while retreating to the east, a number of wounded PAB soldiers in need of
immediate medical care were sent to the Municipal Hospital. The Hospital was the largest and
best equipped medical facility in Kebia. It had been receiving wounded DFK fighters and PAB
soldiers since the conflict started. The aftermath of the incident caused the Hospital building to
be severely damaged, with most of the medical facilities destroyed. It was reported that around
35 people were killed during the operation.

3. Element: The perpetrator intended such building or buildings dedicated to religion, education,
art, science or charitable purposes, historic monuments, hospitals or places where the sick and
wounded are collected, which were not military objectives, to be the object of the attack.

Proof:
In the afternoon of 21 July 2009, the AAF went to the Rosemount District to eliminate
potential threats. At 17:30, the Head of NIA, Ash informed General Reed that eye-witnesses had
seen Bethuisian soldiers taking refuge in the Municipal Hospital and in the Kebia Military College,
an adjoining compound. General Reed immediately ordered a squad to be sent to the hospital
area. The squad commander was reminded that “any threat should be eliminated.”

Although the squad commander was reminded further that “non-threatening persons
should be spared as much as possible,” yet the attack was in disregard to whatever damage may
happen to the place which would inadvertently affect the functionality of the Hospital.
 The fact is that wounded soldiers who can no longer fight and guards who bear the color
of neutrality who were affected are persons specially protected under the Geneva Conventions
of 1949. As such, they should not have been military objectives or objects of the attack. Clearly,
the guards were even wearing military uniforms with a Ventures insignia.

4. Element: The conduct took place in the context of and was associated with an international
armed conflict.

Proof:
The incident happened in the context of an international armed conflict between Alphon
and Bethuis, as the purpose of the attack was to do harm against the Bethuisian soldiers taking
refuge in the Municipal Hospital, unmindful of whatever may happen to the hospital.
The allegiance of the said hospital is indubitably on the Bethuisian, as the hospital
displayed a large red crystal emblem at the entrance, alongside with a Bethuisian flag.

5. Element: The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.

Proof:
General Reed was aware of the factual circumstances that established the existence of
an armed conflict as the incident was merely the result of AAF taking control of the western part
of Kiesh. The perpetrator was empowered by the same motive of subduing Kebia to recognize
Alphon as their one true state.

Count Three – With respect to treatment of detainees in Westwood Prison, in particular, the practice of
solitary confinement and of forced feeding.
Article 8 (2) (a) (ii)
War crime of torture, inhuman treatment and biological experiments

Article 8 (2) (a) (ii)-1

War crime of torture

Element number three requires that all victims must be “protected persons” under one or more
of the Geneva Conventions of 1949, these elements do not include the custody or control requirement
found in the elements of article 7 (1).

1. Element: The perpetrator inflicted severe physical or mental pain or suffering upon one or more
persons.

Proof:
 2. Element: The perpetrator inflicted the pain or suffering for such purposes as: obtaining
information or a confession, punishment, intimidation or coercion or for any reason based on
discrimination of any kind.

Proof

3. Element: Such person or persons were protected under one or more of the Geneva Conventions of
1949.

Proof:

4. Element: The perpetrator was aware of the factual circumstances that established that protected
status.

Proof:

5. The conduct took place in the context of and was associated with an international armed conflict.

Proof:

6. The perpetrator was aware of factual circumstances that established the existence of an armed
conflict.

Proof:

Article 8 (2) (a) (ii)-2

War crime of inhuman treatment

Elements

1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

2. Such person or persons were protected under one or more of the Geneva Conventions of 1949.

3. The perpetrator was aware of the factual circumstances that established that protected status.

4. The conduct took place in the context of and was associated with an international armed conflict.

5. The perpetrator was aware of factual circumstances that established the existence of an armed
conflict.

(e).

Elements of Crimes

15
Article 8 (2) (a) (ii)-3

War crime of biological experiments

Elements

1. The perpetrator subjected one or more persons to a particular biological experiment.

2. The experiment seriously endangered the physical or mental health or integrity of

such person or persons.

3. The intent of the experiment was non-therapeutic and it was neither justified by

medical reasons nor carried out in such person’s or persons’ interest.

4. Such person or persons were protected under one or more of the Geneva Conventions

of 1949.

5. The perpetrator was aware of the factual circumstances that established that protected

status.

6. The conduct took place in the context of and was associated with an international

armed conflict.

7. The perpetrator was aware of factual circumstances that established the existence of

an armed conflict.

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field. Geneva, 12 August 1949.

ARTICLE 3

In the case of armed conflict not of an international character occurring in the territory of one of the
High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid
down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause,
shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever
with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced
by a regularly constituted court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its
services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements,
all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

ARTICLE 12

Members of the armed forces and other persons mentioned in the following Article [ Link ] , who are
wounded or sick, shall be respected and protected in all circumstances.

They shall be treated humanely and cared for by the Party to the conflict in whose power they may be,
without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other
similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in
particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments;
they shall not wilfully be left without medical assistance and care, nor shall conditions exposing them to
contagion or infection be created.

Only urgent medical reasons will authorize priority in the order of treatment to be administered.

Women shall be treated with all consideration due to their sex.

The Party to the conflict which is compelled to abandon wounded or sick to the enemy shall, as far as
military considerations permit, leave with them a part of its medical personnel and material to assist in
their care.

ARTICLE 13

The present Convention shall apply to the wounded and sick belonging to the following categories:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer
corps forming part of such armed forces

(2) Members of other militias and members of other volunteer corps, including those of organized
resistance movements, belonging to a Party to the conflict and operating in or outside their own
territory, even if this territory is occupied, provided that such militias or volunteer corps, including such
organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a Government or an authority not
recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civil
members of military aircraft crews, war correspondents, supply contractors, members of labour units or
of services responsible for the welfare of the armed forces, provided that they have received
authorization from the armed forces which they accompany.

(5) Members of crews, including masters, pilots and apprentices of the merchant marine and the crews
of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any
other provisions in international law.
(6) Inhabitants of a non-occupied territory who on the approach of the enemy spontaneously take up
arms to resist the invading forces, without having had time to form themselves into regular armed units,
provided they carry arms openly and respect the laws and customs of war.

Article 19

Fixed establishments and mobile medical units of the Medical Service may in no circumstances be
attacked, but shall at all times be respected and protected by the Parties to the conflict. Should they fall
into the hands of the adverse Party, their personnel shall be free to pursue their duties, as long as the
capturing Power has not itself ensured the necessary care of the wounded and sick found in such
establishments and units.

The responsible authorities shall ensure that the said medical establishments and units are, as far as
possible, situated in such a manner that attacks against military objectives cannot imperil their safety.

ARTICLE 27

A recognized Society of a neutral country can only lend the assistance of its medical personnel and units
to a Party to the conflict with the previous consent of its own Government and the authorization of the
Party to the conflict concerned. That personnel and those units shall be placed under the control of that
Party to the conflict.

The neutral Government shall notify this consent to the adversary of the State which accepts such
assistance. The Party to the conflict who accepts such assistance is bound to notify the adverse Party
thereof before making any use of it.

In no circumstances shall this assistance be considered as interference in the conflict.

The members of the personnel named in the first paragraph shall be duly furnished with the identity
cards provided for in Article 40 [ Link ] before leaving the neutral country to which they belong.