Henry Dunant Mmorial Moot Comptition - 2013

Henry Dunant Memorial Moot Competition -2013

Organised jointly by

Indian Society of International Law (ISIL) and International Committee of the Red Cross (ICRC)

Henry Dunant Mmorial Moot Comptition - 2013

International Criminal Court

At

The Hague

1. The Prosecutor vs. Mr. Achzib Kushaiah 2. The Prosecutor vs. Major General Merdoch-Baldan

Henry Dunant Mmorial Moot Comptition - 2013

The Prosecutor vs. Mr. Achzib Kushaiah The Prosecutor vs. Major General Merdoch-Baldan

FACTS OF THE CASE

The Kingdom of Chaldea The kingdom of Chaldea is an ancient nation dating back many centuries. It is a marshy land located in the southeastern part of Mesopotamia which came to rule by Babylon briefly. During that time it was inhabited by various tribes including ethnic Chaldean tribe; later the warrior Nergal-sharezer invaded and united all the tribes and ruled Chaldea for more than thirty-five years. Almost 85 percent of the land in Kingdom of Chaldea consisted of wet lands and marshes. The pH (is a measure of the activity of solvated hydrogen ion) level in marshes tends to be neutral to alkaline where peat accumulates under more acid conditions; it predominantly reduces the cultivable land for agriculture use. Due to poor technical skills that prevailed during that time the marshes were not restored and used for agricultural purposes hence agricultural land was not plentiful and traditionally the rural population had to develop unique methods of farming to utilize every inch of the cultivatable land. In addition, Chaldea is one of the most populous nations in the world, and consists of numerous ethnic minorities, predominantly dominated by the Chaldean tribe. The Chaldean tribe is of distinctly Asiatic ethnicity, who make up to almost 90 percent of the entire people. In modern times, the burgeoning population has created multiple logistical difficulties in terms of maintaining sufficient food supplies, providing living space, restricting population growth, and sustaining resources. The capital city of Chaldea is Bit-Yakin, an ever-expanding metropolis with close to 10 million inhabitants.

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In the serene hills outside of Bit-Yakin is the ancient Imperial Palace of king Xenoka-II the home of the king, with its distinct gardens depicting spectacular Gothic style. The present king is highly respected and honoured by the people; however, his function has become mostly ceremonial in recent times, with the Chaldean Parliament being responsible for governance and daily operations of the country. Nevertheless, the King continues to retain the authority to intervene in the workings of government whenever deemed necessary for the good of the kingdom a power that he has exercised on only few occasions during his 40-years regime. Due to the size of its population, its output of affordable goods, and its massive domestic infrastructure programs, Chaldea has become one of the most dynamic economies in the world.

Autonomous Province of Dothan

Dothan is an expansive region bordering on the west of Chaldea. Dothan contains one the worlds largest deserts, as well as some of the worlds tallest mountain ranges. However, in ancient times Dothan was a land of plentiful lakes and lush oases. Yet, due to its isolated location, its rivers and lakes have dried up over the centuries, leaving only the endless sands of the Horbah Desert.

Although 25 percent of the Dothan population is ethnically Chaldean tribe, more than half of the population of the province is Jerash ethnic population, a distinct group with features more akin to Persians, along with a smaller segment of the Jerash who resemble Europeans with red or blond hair and blue eyes. The Jerash have not intermarried with the Chaldean and practice an entirely different religion. The Dothans are known for hard work and extraordinary skills of craftsmanship. Chaldea took control of Dothan in the late 18th century and since then it has maintained control over the region. To maintain strict control over the region Chaldea
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has over the years quelled several rebellions. The most recent rebellion was launched in 1995, when a charismatic Jerash religious leader, Achzib Kushaiah, called for all Dothans to unite and throw off the yoke of the Chaldea and to seek independence from the suppressive regime. The rebellion was eventually suppressed, and Achzib Kushaiah was forced into exile, where he had remained for about 17 years. The Kingdom of Chaldea asserted that Achzib Kushaiah and his religious order used their positions of trust to deceive the Jerash population, to control them politically, and to set up what amounted to be an authoritarian and feudal system in which the common Dothan became slaves, working for menial wages to enlarge the coffers of the order. The Chaldeans also view the quelling of the rebellion as a critical step in freeing the Dothans from the influence of an oppressive leader and restoring to them for their human rights. On the other hand, the Dothans view Achzib Kushaiah as their hero and look upon the Chaldeans as foreign occupiers who have denied them the autonomy and freedom to which they are entitled. In his exile, Achzib Kushaiah had been very successful in convincing foreign governments and especially those in western countries and in the media, as to the justness of his cause. Following the unsuccessful rebellion in 1995, and in an effort to relieve the political tensions in the region, Chaldea declared Dothan an Autonomous Province in 1998, which permitted the Dothans to exercise a certain degree of local self-government and control over the territory. The Chaldeans, however, held most of the influential positions. In 1999, oil was discovered in the Horbah desert along the route where the ancient Kishon River used to flow. Chaldea has invested huge sums of money to pump and process this oil, and the Dothan oil fields have become its principal source of fuel. Extensive maze of pipelines were constructed to deliver the oil to the locations throughout Chaldea.

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The Kingdom of Livonia The Kingdom of Livonia is located on the other side of the world from Chaldea. Livonia is the worlds most powerful country, both economically and militarily. Its leaders have openly expressed their concerns over Chladeas ascendency in world politics and its adverse impact on Livonias economy and its status as the leader in global affairs. In fact, the major topic of discussion at the World economic summit and other foras was Chaldeas proposal that Livonias currency, the Livon Dollor, no longer be considered the international standard by which foreign currencies are judged.

Achzib Kushaiah the religious leader of Dothan has visited Livonia on multiple occasions and has become a regular guest and has been very popular among the politicians, other religious leaders, business community and screen actors alike, who have not hesitated to use their influence to promote his cause of Dothans Independence. The Discovery of the Palmyra Mummies In 2004, a team of geologists were surveying and conducting exploration for possible sites for oil and natural gas resources in the Horbah desert. They were travelling along the famous Palmyra road, the ancient trade route between West and East, so named in later times for the birthplace of the famous explorer, Mar Colman, who grew up on the Palmyra Island off the Equatorial Northern Pacific Ocean. While investigating near an abandoned trading site, the geologists came upon a hillock in the desert, which had an unusual circular arrangement of wooden posts. Meanwhile the geologists with the help of archaeologists conducted further excavations. In their excavations, they discovered what appeared to be a primitive grave, covered by pieces of wood. As they dug deeper, they found a shaft that led down to a lower pit. What they found at the bottom of the pit not only changed history but ignited the conflict between Chaldea and Dothan.

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From the circular pit, the archaeologists unearthed few bodies, which consisted of three men, three women, and six small children. These bodies were perfectly mummified by natural processes because of the extreme dryness of the desert; in fact, they were better preserved than any of the Egyptian mummies. However, the striking feature of the finding was that the bodies were not Asian; they were Caucasian, with blond and red hair still detectable, and the colourful weave on their clothes and leggings resembled Celtic patterns, not any known pattern from the Chaldean region. Yet, the most shocking revelation came after the mummies were dated. It was discovered that these bodies were some 4,000 years old one thousand years older than the earliest presence of the Chaldean tribe in the region. This revelation mandated a radical revision of known history it was not the Chaldean who originally inhabited the region but a people from beyond the Caucasus. Thus, culture and inventions originally thought to have migrated from East to West may actually have been transmitted from West to East. After the revelations, the Chaldean authorities sealed the excavation site and prevented the news from becoming public, citing the need for further scientific investigation but secretly fearing that the findings would seriously undermine stability in the region. Similar subsequent findings along the Palmyra road were likewise sealed by the government. However, a year later a set of photographs of the mummies appeared in a western journal, which set off a major controversy, not only about the impact of the findings on world history itself but also with respect to the motives of government of Chaldea in delaying news of the spectacular findings. Once news of the ethnic background of the mummies reached Dothan, the majority of the Jerash population immediately embraced the mummies as their progenitors, which quickly led to calls for Dothans independence from Chaldea and from its oppression. Further the Jerash population proclaimed that the liberation of Dothan as its goal on the grounds that the Jerash were the original inhabitants of the region, they were entitled to full autonomy and claimed their right to self-determination.

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The reaction amongst the Jerash ethnic population for liberation from Chaldea rule was immediate. Riots broke out throughout the province between the Jerash ethnic population and Chaldean government forces. In order to control the situation from becoming worse the Chaldean government sent forces to Dothan under the command of Major General Merdoch-Baldan. These government forces targeted the civilians who were sympathetic to the cause of Dothans liberation and raided their houses in search of young men, those of who were sympathetic to the cause, and detained several of them. In addition, there was a great increase in violence between Jerash and Chaldeans. Neighbours became suspicious of each other and the former harmony shared between the two groups rapidly collapsed. Dothan Independent Patriotic Liberation Army (DIPLA) In September 2007, a series of explosions took place throughout the province of Dothan, each targeting a police station and security installations manned by Chaldean officers. A group calling itself the Dothan Independent Patriotic Liberation Army (DIPLA) claimed responsibility for the bombings. Several prisoners and security personnel were also killed as a result of the explosions.

In response to the violence, the government of Chaldea sent its additional forces to Dothan and attached them under the command of Major General Merdoch-Baldan to stabilize the region. Along with the additional forces the Chaldean government recruited a group of private military and security personnel from a famous Rock Line International Security company to safeguard security posts and police stations in Dothan. According to the Jerash people, this led to constant harassment of the civilian population, who were constantly subjected to searches of their persons and homes; elderly people and women were subjected to ill-treatment by the forces and delays at checkpoints set up by the Chaldean forces. The Rock Line International Security personnel were involved in targeting civilians and detained six young civilians under the suspicion of their involvement in exploding bombs at one of the security

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post in Dothan. The six detained young Jerash were humiliated, their hands and legs were tied and they were kept in a dark room for endless hours without food and water. This, in turn, helped to swell the ranks of the DIPLA, with a large amount of recruits coming from young, disenchanted men, which contributed greatly to expand the activities of DIPLA and to target their attacks against Chaldean government forces which are stationed in Dothan province. The top ranks of DIPLA declared that with help of the God and under the guidance of Dothan religious leader Achzib Kushaiah they will fight with the Chaldean forces until they achieve the long pending liberation for their people in Dothan The DIPLA activities had further escalated the violence between the DIPLA and Chaldean forces for the remainder of the year 2007, as weapons began to flow into Dothan from foreign sources and enabled the DIPLA to do greater damage. The fighting, however, was limited to the territory of Dothan. Attack on the Bit-Yakin City Centre At 4.45 p.m. on 15 February 2008, the day prior to the commencement of the Chaldean New Year, a plane crashed into the one of the citys high rise building at Bit Yakin city centre, the capital city of Chaldea. This building was one of the tallest in the city, which was located in the heart of the capital city. The crash was captured on videotape by numerous persons, as well as the spectacular collapse of the entire building, whose floors rapidly fell upon each other, as if in a demolition. The building housed government offices in the lower levels and, above, numerous stores, firms, private offices, and financial institutions, including the Chaldeas government Bank. The government reported that, on the day of the collapse, 1,500 persons were in the Tower. According to the government, only 100 individuals in the building survived. In addition, it is estimated that 150 people were killed on the street from falling debris and suffocation.

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A high level investigation conducted on the debris from the plane indicated that it was a high-speed drone aircraft, which was unmanned and, thus, must have been operated by remote control system. Shortly thereafter, Chaldean authorities announced that they had arrested a group of men of Jerash ethnicity with links to the DIPLA in whose compound in Dothan the police found architectural plans of the building, detailed satellite maps of capital city of Bit-Yakin, mechanical parts that could be assembled into a remote control device, and Dothan independence literature. One of the men, Dr. Mue Ku, was an expert in robotics. The men were charged under the Chaldean Penal Code with 1,000 counts of first degree murder. According to the authorities, Dr. Ku and the rest of the arrested men had confessed to their role in the attack and stated that they acted upon orders of the DIPLA and their religious mentor Achzib Kushaiah. Later, Dr. Ku and the other men asserted that their statement was obtained through physically coercion by Chaldean forces by means of water-boarding. Following the arrests, the King addressed to the Chaldean people from his palace, denouncing the attack on the civilian buildings as a cowardly act of terrorism and calling it a crime against humanity in which innocent civilians lives were sacrificed on the altar of anarchy. He then declared martial law in the Dothan province and promised that any further violence would be quelled by the Chaldean military forces, which he ordered to be mobilized immediately. The Chaldean Parliament met in an emergency session and enacted harsh anti-terrorism laws calling for death penalty for anyone convicted of terrorist acts or giving material support to terrorists, and providing for summary military trial as well as granting expansive coercive powers to the forces. The DIPLA promptly issued a statement denying any involvement in the attack on the capital city, noting that it lacked the technological capabilities to carry out such an attack, which could only have been orchestrated by a major military power. The DIPLA further mentioned that this is the perfect pretext for Chaldea to invade Dothan
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militarily and gave a call to people of Dothan that they should be ready to retaliate such kind of actions to liberate themselves from the foreign oppression. DIPLA Support from Livonia Taking this situation as an opportunity the neighbouring kingdom Livonia immediately established a contact with DIPLA top ranks in Dothan. Covert agents from Livonia started providing logistical and financial support to aid in Dothans quest for independence from Chaldea. Almost overnight, the DIPLA was receiving state-of-theart weaponry, communications devices, and technical support, in addition to an almost unlimited cash flow. Furthermore, officers from Special Forces units in Livonia conducted training sessions with DIPLA guerrilla units in both desert and mountain warfare tactics. Military experts from Livonia also advised the DIPLA on matters of general strategy. Moreover, through the generosity of Livonia hundreds of civilians joined the DIPLAs fighting units. With the support that the DIPLA received from Livonia, its ranks swelled from hundreds to thousands, thereby enabling the DIPLA to maintain control over a substantial area of Dothan territory. In the early stages of the hostilities, the DIPLA avoided direct confrontation with the Chaldean military, which had established multiple outposts in Dothan, and, instead, utilized guerrilla tactics to harass the troops, including shelling the Chaldean units from remote mountain locations. Most of the heavy fighting occurred near the border between Chaldea and Dothan. Declaration of Dothan Independence Due to the continued growth and success of the DIPLA, Livonia secretly arranged for Achzib Kushaiah transport to Dothan. Upon return of Achzib Kushaiah, the unanimous Jerash population, as well as a measurable portion of the Dothan Chaldeans, called for his appointment as the new leader of Dothan. On 1st August 2008, the Republic of Dothan, with Achzib Kushaiah as its new President, unilaterally declared its
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independence from Chaldea. Achzib Kushaiah appointed his cabinet later that day. Because of the ongoing hostilities, the DIPLA continued to function as the de facto army of the new republic. Livonia was the first country to recognize Dothan as a sovereign nation and immediately pressed the Security Council to recommend Dothans admission to the United Nations. Soon thereafter, Dothan was recognized by 5 other countries most of them close allies of Livonia. To date, no formal action has been taken by the Security Council. Operation Highland

Based upon intelligence Livonia shared with the DIPLA, it was learned that a number of Chaldean generals and elite squadron leaders were meeting in the subterranean Cave, which is located underneath a historical monument near the border lands, in preparation for a major ground offense into Dothan territory. The code name for this clandestine operation was Operation Highland.

On the night scheduled for the critical meeting, several specialized DIPLA units, accompanied by a number of seasoned mercenaries, stealthily approached the mouth of the cave, where the meeting was already in progress. With them they brought a new hand-held microwave weapon that was designed to immobilize mobs by directing a powerful microwave at them, thereby temporarily debilitating any crowd.

The DIPLA squadron aimed the microwave gun at the centre of the assembly and, within seconds, those attending the meeting began to collapse from the extreme heat, and the Chaldean generals cried out their immediate surrender. However, fearing a trick, the gunman kept the microwave unit in the on position to ensure that there would be no resistance from the enemy when rounding them up to take

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them back as prisoners. Within seconds, a piercing, collective scream of horror echoed throughout the cave and, in the next moment, there was no sound from the interior of the cave. The DIPLA unit then cautiously entered the cave and found a pile of charred bodies laying on the floor of the cave. The gunman, who had only practiced with the weapon in the open air, did not realize that the microwave exposure level was exponentially increased in an enclosed space like a cave. The DIPLA squadron quickly departed, assuming that their deed would never be discovered and leaving the dead Chaldean in the cave.

However, the entire incident was captured by a miniature recording device that was operating at the time and was shielded behind a large stone in the cave which is not visible for people and was also not known to the attacking DIPLA squadron. The Chaldean guard units located near the path to the cave immediately set out in tracking down of the assailants. Although most the DIPLA squadron escaped, four of the DIPLA fighter and two independent contractors were captured.

The following day, the film of the ghastly death of the Chaldean generals and their comrades was broadcast throughout the media. The repeated airing of this event did incalculable damage to the Dothan cause in the eyes of the international audience. In addition, Chaldea announced that because of the grave breaches of the law of armed conflict committed, they will not afford any protections that might generally be afforded to prisoners of war to the detainees in their hand.

UN Special Resolution

Following these actions, on 25th January 2009 the United Nations Security Council convened an emergency meeting and passed resolution appealing to all parties to conflict to stop the hostilities immediately. The resolution further urged the parties to resolve the matter amicably to avert any further humanitarian catastrophe. The
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parties also agreed to investigate into alleged violations of international humanitarian law by all parties to the conflict and for the prosecution of those persons responsible for such violations under the Rome Statute of the International Criminal Court (ICC) at The Hague. Under Article 13 (b) of the ICC Statute, the Security Council passed a Resolution and referred the matter to the International Criminal Court. The Kingdom of Chaldea and the Kingdom of Livonia are both members of the United Nations. Both kingdoms are parties to the Four Geneva Conventions of 1949, Protocol I to the 1949 Geneva Conventions (1977), Protocol II to the 1949 Geneva Conventions (1977), the International Covenant on Civil and Political Rights (ICCPR), and the Rome Statute of the International Criminal Court (1998) and other IHL conventions which prohibit the use of certain weapons during the hostilities. The two cases have been brought by the Prosecutor: 1. Prosecutor vs. Mr. Achzib Kushaiah, and 2. Prosecutor vs. Major General Merdoch-Baldan

Charges against Mr. Achzib Kushaiah:

Mr. Achzib Kushaiah was charged with the following crimes:

1. Crimes against Humanity by directing the attacks against the civilian population on 15 February 2008 in the Bit-Yakin capital city centre building, under Article 7(2) of the International Criminal Court Statute;

2. War Crimes by directing the DIPLA squadron attacks against Chaldean military generals while meeting at subterranean Cave and using prohibited weapons which causes superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict,
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provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to the ICC Statute, under Article 8 (2) (b)(xx) of the International Criminal Court Statute; and

3. Responsibility of the Commander or other superiors of the DIPLA and their actions in BIT-Yakin city centre bombings and DIPLA attacks against Chaldean military generals under Article 28 of the International Criminal Court Statute.

Charges against Major General Merdoch-Baldan:

Major General Merdoch-Baldan was charged with the following crimes:

1. The crime against humanity of enforced disappearances of Jerash ethnic youth in the province of Dothan under article 7 (1) (i) of the International Criminal Court Statute;

2. The war crime of inhuman treatment and unlawful confinement of Jerash ethnic civilian population in the province of Dothan and ill-treatment and water-boarding of Dr. Ku and other men who were allegedly involved in bombing at city centre and its subsequent arrest, under Article 8 (2) (ii) of the International Criminal Court Statute; and

3. The Responsibility of the Commander and the actions of the Chaldean forces in the Dothan province against Dothan civilian population under Article 28 of the International Criminal Court 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
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two cases as per the charges fixed by the prosecutor against each individual. The Counsel are required to present their oral arguments separately and simultaneously during the trial process. (Note: The Prosecutor and Defence do not have freedom to choose the case, they are required to argue both cases)

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Other issues of relevance to the case

1. The matter is to be argued before the trial chamber of the International Criminal Court. Questions relating to jurisdiction may not be raised 2. Written and oral arguments on behalf of the Prosecution and Defence are to be confined to the charges mentioned in the each case. 3. Both prosecution and defence counsel are to make arguments with respect to the applicability of the charges provided in the "Elements of Crimes"(United Nations Doc. PCNICC/2000/1/Add.2 (2000), 4. Counsel are expected to bring to the Court's attention relevant jurisprudence and other documentation. It may include judgments and opinions delivered by the International Courts, various International Criminal Tribunals and from the hybrid courts and tribunals of the wherever relevant judgments delivered by national courts and tribunals.

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