Team No.

714
Indonesian National Round
International Humanitarian Law Moot Court Competition
Memorials of the Prosecutor
!1
". TH# T$P# %& "RM#' C%N&LICT %CC(RR#' "R# INT#RN"TI%N"L
"RM#' C%N&LICT "N' N%N INT#RN"TI%N"L "RM#' C%N&LICT
Type of armed conflict is a non international armed conflict. Based on the AP
II of GC 1977,
1
non international armed conflict will arise between a i!h
Contractin! Party and dissident armed forces or other or!ani"ed armed !ro#ps which,
#nder responsible command, e$ercise s#ch control o%er a part of its territory.
In the present case, &atoland 'tate is a i!h Contractin! Parties which
in%ol%ed in armed conflict with the dissident armed forces and ()A militias,
*
which
they e$ercise control o%er +est (ra,onian territory.
-
.elated with the whole cases, type of armed conflict occ#red between
Bariland and &atoland is an international armed conflict
/
based on the GC 19/9,
0
an
international armed conflict will arise between two or more Contractin! Parties, ta,en
place in &atoland and Bariland.
). C%L%N#L C. *%N#+ I+ ,(ILT$ &%R -"R CRIM#+ %& .I%L#NC#+ T%
LI&# "N' P#R+%N/ IN P"RTIC(L"R CR(#L TR#"TM#NT "N'
T%RT(R#
Colonel C. 1ones is !#ilty #nder s#perior responsibility
2
for war crimes of
cr#el treatment and tort#re #nder article 34*54c54i5 of the ICC 'tat#te. Cr#el or
inh#man 4synonymo#s terms5 treatment consists of acts which ca#se serio#s mental
pain or s#fferin!, or which constit#te a serio#s o#tra!e #pon indi%id#al di!nity.
6nli,e tort#re, these acts do not need to be committed for a specific p#rpose.
7
1
Art. 1 of AP II of GC 1977
2
7act *3
3
7act 2
4
Tadic, ICTY Appeals Chamber, Case )o. IT89/81, 1#ly 10, 1999, Para 3/.
5
Art. * of GC 19/9
6
Art. *3 of ICC 'tat#te.
7
'ection * of IC.C policy on tort#re and cr#el inh#man or de!radin! treatment inflicted on
persons depri%ed of their liberty.
*
Tort#re is any act by which se%ere pain or s#fferin!, whether physical or
mental, is intentionally inflicted on a person for s#ch p#rposes
3
and p#nishable #nder
c#stomary international law.
9
7or both war crimes of cr#el treatment and tort#re9 7irst, the perpetrator
inflicted se%ere physical or mental pain or s#fferin! #pon one or more persons. As
mental s#fferin! constit#tes physical attac, and threats,
1:
se%ere mental s#fferin! has
occ#rred in this case. +hereas, women sho#ld be confined #nder the direct
s#per%ision of women,
11
three women were to#ched inappropriately and male !#ard
threatened them to strip them na,ed. ;oreo%er, they were only fed twice a day and
male staff co#ld watch them #se the toilet, and, they were fre<#ently s#b=ected to
h#miliatin! comments.
1*

;eanwhile, on tort#re9 se%ere beatin!s inflicted to the %ictims in the
#nidentified locations that ,nown as the places of detention,
1-
which these facilities
were a#thori"ed by &A7.
1/

Tort#re re<#ires the acts sho#ld be committed for a specific p#rpose. In the
present case, the %ictims were s#fferin! from the se%ere beatin!s d#rin! his
interro!ation.
10
ence, the %ictims were ci%ilian. Ci%ilian sho#ld be not be a part of armed
forces and not bein! a member of militias.
12
In the present case, the %ictims were
arrested by the AA7 witho#t a clear reason and nothin! to d#e with the hostilities
act.
17
+hilst, GC also defines the person whose stat#s is do#bted to be ci%ilian as a
8
Furundzija, ICTY Trial Judgement, 1: (ec 1993, para. 109
9
Art. 7 of ICCP.
10
Supranote 8, para. *2/
11
Art. 72 of GC I> 19/9
12
7act *7
13
7act -*
14
7act *9
15
Supranote 1-
16
Art. / of GC 19/9
17
7act *2, *9
-
ci%ilian.
13
Th#s, the %ictims were ci%ilian as it has f#lfilled the re<#irements to be
ci%ilian, and in the time of conflict, they are protected.
19

The perpetrator sho#ld aware that the persons were ci%ilian.
*:
In the present
case, the persons detained are belie%ed by the perpetrator to be only associated or to
be the s#pporters of the militias,
*1
there was no fact mentioned that the persons were
either militias or armed forces.
Th#s, this cond#ct too, place and was associated with an armed conflict not of
an international character. In the present case, the cond#ct too, place d#rin! the
hostilities occ#red between &atoland Armed 7orces, with the assistance of &?'A,
a!ainst ()A ;ilitias.
**
ence, the perpetrator was aware of fact#al circ#mstances that established the
e$istence of an armed conflict. The conflict can be classified as an armed conflict if
the armed force is part of the conflict. In the present case, &A7 was #nder the
leadership of the perpetrator,
*-
were ta,in! part to the conflict.
Th#s, Colonel C. 1ones is !#ilty for war crimes of cr#el treatment and tort#re
beca#se his cond#ct ha%e f#lfilled the entire elements.
C. C%L%N#L C. *%N#+ I+ ,(ILT$ -"R CRIM#+ %& %(TR",#+ (P%N
P#R+%N"L 'I,NIT$
Colonel C. 1ones is !#ilty #nder s#perior responsibility
*/
of war crime of
o#tra!es #pon personal di!nity #nder article 34*54c54ii5 of the ICC 'tat#te and shown
in Kunarac case
*0
. @#tra!es #pon personal di!nity is acts which h#miliate, de!rade or
18
Art. 0: of AP I of GC 1977
19
Supranote 12
20
&n#t (ormann, reparator! Commissions "or the International Criminal Court# the
$lements o" %ar Crimes 4International .e%iew of the .ed Cross5, *:1:, pa!e /23.
21
Supranote *1
22
Supranote *
23
7act *:
24
Supranote 2
25
Kunarac, ICTY Appeal Chamber Judgement, 1* 1#ne *::*, Para. 1218120
/
otherwise %iolate the di!nity of a person to s#ch a de!ree
*2
and p#nishable #nder
c#stomary international law.
*7
The perpertator was cond#cted the de!radin! treatment toward people in
Corti.
*3
(e!radin! treatment commited on the innapropiate condition of detention.
*9
The wo#nded persons were sent to prison for intero!ation witho#t ha%in! medical
attention they re<#ired.
-:
The followin! act dissobeyin! the medical attentions
-1
that
m#st be !i%en to the wo#nded person
-*
in any condition.
The perpretator was cond#cted crime of o#tra!es #pon personal di!nity.
PerpertatorAs act ca#sed se%ere de!radation of attac,in! the h#man di!nity,
--
the lac,
of medical attention of wo#nded person while in prison for interro!ation and res#lted
the death.
-/
Then intent of prepertator act and ,nowle!de co#ld ha%e that effect.
-0
Prepertator ,new that the condition of wo#nded person for interro!ation witho#t
proper medical attention in prison wo#ld led death.
-2
The wo#nded person in prison was not recei%in! medical attention they
re<#ired
-7
were hors de combat&
-3
They are defenceless beca#se of wo#nds.
-9
26
Art. 34*54c54ii5 of ICC 'tat#te.
27
Art. 0 of 6(..
28
7act -2
29
Portoreal %. (ominican .ep#blic, #man .i!hts Committee, )o. 133B3/9 see also Brown
%. 1amaica, #man .i!hts Committee, )o. 770B979 ?strella %. 6r#!#ay, #man .i!hts
Committee, )o. 79B193:9 Gree, case 419295 1* C.B.?. Comm. ...9 Cypr#s %. T#r,ey,
419725 / ?...... /3*, 0/1
30
7act -2
31
Art. - of GC 19/9
32
Art. 11: of GC III 19/9
33
'aradinaj, ICTY Trial Judgment, :- ;arch *::3, para 1-*.
34
Supranote ()
35
Supranote -*
36
Supranote ()
37
Supranote ()
38
Art. - para. 1 of GC I.
39
.#le /7 of C#stomary International #manitarian Daw.
0
The prepertator sho#ld ha%e ,nowled!e that the persons were hors de
combat,
/:
prepertator ,new the ()A symphati"ers in prison for interro!ation witho#t
recei%in! the medical attention they re<#ired
/1
were wo#nded and defenceless.
The charactheristics of armed conflict cond#cted in Corti was met as not of an
international characther.
/*
The hostilities intensified between &?'A and &A7 forces
a!ainst ()A militias.
/-
As non8!o%ernmental !ro#ps possess or!ani"ed armed
forces
**
in the present case as ()A ha%e certain command to mo%e ()A militias and
s#pporters a!ainst &atoland forces. As the last <#alification,
/0
the hostilities were
between &atoland and ()A.
Colonel C. 1ones was aware of the fact#al circ#mstances that established of an
armed conflict
/2
and the cond#ct too, place in the conte$t of and was associated with
an armed conflict not of an international character in Corti. In the present case, &A7
was #nder the leadership of prepertator,
/7
that too, part to the conflict.
'. C%L%N#L C *%N#+ I+ ,(ILT$ &%R TH# -"R CRIM#+ %& #0C#++I.#
INCI'#NT"L '#"TH/ IN*(R$/ %R '"M",#
Colonel C. 1ones is !#ilty #nder s#perior responsibility
/3
for the war crime of
e$cessice incidental death, in=#ry, or dama!e for the cyber attac,
/9
in Bar!o on
(ecember *:1:. The definition of cyber attac, from an IC.C le!al e$pert, Cord#la
(roe!e is an operation to a!ainst by %ia comp#ter or a comp#ter system thro#!h data
stream to infiltrate a comp#ter system and collect, e$port, destroy, chan!e or encrypt
40
Supranote *:
41
Supranote ()
42
Art. - of GC 19/9
43
Supranote *
44
Fatmir +imaj, ICTY Trial Judgement, -: )o%ember *::0, para. 1-0817:.
45
Art. - of GC 19/9
46
7act -/
47
Supranote *-
48
Supranote 2
49
Art.-2, 0* of AP I of GC 1977
2
data or to tri!!er, alter or otherwise manip#late processes controlled by the infiltrated
system.
0:
The perpetrator la#nched an attac, to power plan that was s#ch as #ndefended
"one.
01
This element was f#lfilled by the fact that the e$perts and commentators said
that )CC was behind in the cyber attac,.
0*
The attac, res#lted the complete
sh#tdown of the station which res#lted in massi%e disr#ption of the power s#pply in
the affected area which was ca#sed by %ir#ses.
0-
'o, the first element of this crime
was f#lfilled.
The cyber attac, that occ#rred in Bar!o ca#sed incidental death, lon!8term and
se%ere dama!e to the nat#ral en%ironment and that s#ch death that wo#ld be of s#ch
an e$tent as to be clearly e$cessi%e in relation to the concrete and o%erall military
ad%anta!e anticipated. The perpetrator attac,ed the power plantAs comp#ter networ,
system and made complete sh#tdown of the station and affected massi%e disr#ption of
power s#pply.
0/
The power s#pply was not only #sed by 7.B military it is also
s#pplies electricity to the towns and %illa!es in ?ast and +est (ra,onia comprisin!
more than 10:.::: ho#seholds.
00
The cyber attac, ca#sed harsh climatic condition and
beca#se of that it ca#sed nearly 0:: ci%ilian deaths.
02
The military ad%anta!e from the
attac, is to ma,e the Bar!o military baseAs power so#rce partly crippled and affected
the airfield control system. 'o, the second element of this crime has f#lfilled.
ence, the perpetrator ,new that the attac, wo#ld ca#sed incidental death
res#lted harsh climatic in ?ast (ra,onia
07
and res#lted 0:: ci%ilian deaths
03
and an
50
Cord#la (roe!e. IC.C De!al Ad%isor. An Inter%iewE )o De!al >ac##m In Cyber 'pace.
httpEBBwww.icrc.or!Ben!Breso#rcesBdoc#mentsBinter%iewB*:11Bcyber8warfare8inter%iew8*:118
:3812.htm . accessed on @ctober, */
th
*:1*.
51
Art. 09 of AP I of GC 1977
52
7act /-
53
7act /:
54
Supranote 0-
55
7act -9
56
7act /*
57
Supranote ,-
58
Supranote 02
7
e$tent as to be clearly e$cessi%e in relation to the concrete and direct o%erall military
ad%anta!e anticipated abo#t the circ#mstances that happened in the ;esto. Th#s, the
third element of crime has f#lfilled.
In the case was so clear that the cond#ct in Bar!o was part of an international
armed conflict and the reason of that has already been e$plained in the preamble.
The perpetrator was aware by attac,in! the power plan, he wo#ld achie%e a
military ad%anta!e which the partly crippled of the power so#rce of Bar!o military
base and affected the airfield control system that established the e$istence of an armed
conflict. 7#rthermore, &atoland force strate!ically stationed tan,s and lon!8ran!e
artillery in the hills o%erloo,in! the ;esto .i%er
09
and the command for stationed the
tan, and artillery was commanded by Colonel C. 1ones as ?$ec#ti%e >ice8Chairman
of the ;inister of (efense and Chief of the Armed 7orce.
2:

Beca#se all of the element of crime has f#lfilled, Colonel C. 1ones is
responsible for war crime of e$cessi%e incidental death, in=#ry, or dama!e.
#. PR"$#R &%R R#LI#&
Based on the fore!oin! reasons, the Co#nsel of Prosec#tor respectf#lly
re<#ests that this Co#rt '#CL"R# that Colonel C 1ones is !#ilty forE
1. +ar Crimes of %iolence to life and person, in partic#lar cr#el treatment and tort#re9
59
7act -3
60
7act 19
3
. +ar crimes of o#tra!es #pon personal di!nity9
1. +ar crimes of e$cessi%e incidental death, in=#ry, or dama!e.
R#+P#CT&(LL$ +()MITT#'
",#NT+ &%R TH# PR%+#C(T%R
9