University of San Jose Recoletos

School of Law

THE PROSECUTOR OF THE COURT

VS
DAVID DABAR

BRIEF FOR THE PETITIONER

Baccay, Jerico E.
October 24, 2016

TABLE OF CONTENTS

INDEX OF AUTHORITIES ----------------------------------------------------------------------3

QUESTIONS PRESENTED
-----------------------------------------------------------------------STATEMENT OF FACTS
5-10

-----------------------------------------------------------------------

SUMMARY OF PLEADINGS
11-12

------------------------------------------------------------- -

PLEADINGS
13-22

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PRAYER
23

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Brief for the Prosecutor | 2

INDEX OF AUTHORITIES

Rome Statute of the International Criminal Court

First Geneva Convention: The Geneva Convention for the Amelioration of the
Condition of Wounded and Sick in Armed Forces
Second Geneva Convention: The Geneva Convention for Amelioration of
Condition of the Wounded, Sick, and Shipwrecked Members of the Armed
Forces
Third Geneva Convention: The Geneva Convention Relative to the Treatment
of Prisoners of War
Fourth Geneva Convention: The Geneva Convention Relative to the Protection
of Civilian Persons in Time of War
Additional Protocols to the Geneva Conventions of 1949 relating to the
protection of victims of international armed conflicts (Protocol 1)

Brief for the Prosecutor | 3

QUESTION/S PRESENTED

Whether or not David Dabar is guilty of committing:

a. Crime against Humanity of Deportation or Forcible
Transfer of Population
b. War Crime of Hostage Taking
c. War Crime of Willful Killing
upon presence of the elements of the crimes enumerated

STATEMENT OF FACTS

Brief for the Prosecutor | 4

1. Vanilia, bordered by Maxicum Sea on the East, by Republic of Berryland

to the South and west and Republic of Mingolia to the north, is a
federal state which has a population of around 20 million people. It is
populated by the Lemi people and by the Nomag people. The Nomag
people, who are in majority residing in the province of Losovo, were
believed to have come from Berryland during the colonial period as
indentured labourers. Others think that Losovo is in fact the original
land of the Nomags, and that it was only made part of Vanilia because
of existing administrative divisions.
2. After Vanilia gained independence in 1959, it adopted a political
system of representative democracy with multi-party system. In
Vanilia, there are two main political parties: Peoples United Democratic
Party (PUDP) claiming to be secular and have countrywide support and
mainly supported by the Lemis and the Federal Democratic Party (FDP)
the main opposition party openly claiming to protect the interests of
the Nomags.
3. There is a general resentment among Nomags that they have been
neglected by successive governments and are not proportionately
represented in the political decision-making which has resulted in the
neglect of their welfare and economic development. They have long
been demanding since the proclamation of Federal Constitution that
Nomagi Language be declared as official language of Vanilia but was
continuously refused. There are some claims as well that Nomags are
under-represented

in

the

main

sectors

of

economy

and

are

discriminated.
4. Ever since the independence, some Nomag groups spearheaded the
idea of an independent Losovo state. In fact during the provincial
elections, the FDP won an overwhelming majority in Losovo Provincial
Assembly and formed an executive council.

Months after, FDP, the

Brief for the Prosecutor | 5

main opposition party established Nomag Democratic Resistance

Alliance (NDRA) with the objective of obtaining independence of Losovo
from Vanilia. David Dabar who was elected to Losovo Provincial
Assembly in behalf of FDP was also seen as the figurehead of NDRA.
5. On the day of Vanilian independence, 500 people from NDRA protested
and hoisted a Losovo national flag while desecrating and burning the
Vanilia National Flag. Then, a few days later, students from Rizoba
University formed Nomag Student Alliance (NSA) and announced they
will establish coordination with other groups fighting for Nomags
rights. NSA then issued a call for the indefinite boycott of classes in the
university which they declared would be enforced, if necessary in
militant forms and during the following weeks, factory workers,
journalists,

and

university

teachers

have

also

formed

pro-

independence associations.
6. NDRA then convened a meeting with all pro-independence associations
to coordinate work and activities for independence of Losovo and to
seek necessary national and international support with a final
declaration indicating that all associations convened together in the
meeting would take guidance from NDRA and its leader David Dabar.
7. On the same day, several attacks on the Lemis were made in the five
towns near the provincial border in Losovo. It was strongly believed by
the government of Vanilia and the most important newspapers
including those based in Losovo that the NSA was behind it. Several
newspapers published reports based on an NDRA internal document
that the organization strives in eliminating the influence of Lemi in
Losovo. Government authorities of Vanilia confirmed the expulsion of
Lemis out of Losovo into neighboring provinces which neither the NDRA
nor the NSA denied.

Brief for the Prosecutor | 6

8. As reported in TV Channels, increasing attacks were made on Lemi

residences in Rizoba by NSA members. On February 10, 2009, David
Dabar as the figurehead of NDRA went to Pleasant Gardens where a lot
of Lemi people are inhabiting and ordered members of NDRA to erect
roadblocks to control the movement of residents explaining that the
roadblocks were erected to easily check every movement through the
locality and protect the Lemis from the growing violence however, on
that same night, NSA members easily went into Pleasant Gardens
without being stopped by the roadblocks and forcibly brought out more
than 400 Lemi residents into the areas main square and were then
taken into camps near the border.
9. The Prime Minister of Vanilia, Nijimon Yavi, in response to the chaos,
issued a stern warning to those involved in the displacement of Lemi
People and deployed security forces in Losovo but despite the
warnings, there has been several attacks taking on the property of the
Vanilian government as well as on private properties. Displacement of
Lemi people continued and continuous protests from NDRA across
Vanilia ensued.
10.

On May 22, 2009 at around midnight, a camp of security forces

on the outskirts of Rizoba was attacked by armed men and in the

pitched battle that ensued; the camp site was in ashes the next
morning. It was then reported by local officials that the same armed
men continued attacks on government property mainly on offices and
vehicles, as well as on Lemi people and their property.
11.

Despite criticisms David Dabar convened a press conference and

declared that NDRA would organize a rally the next day and declare

Brief for the Prosecutor | 7

the independence of Losovo from Vanilia. He declared that Losovo

administration was going to be in the hands of Nomag and for the
interests of the Nomags.
12.

However on June 5, 2009, Prime Minister of Vanilia, Nijimon Yavi,

said on national television that Losovo province was an integral part of

Vanilia and called out on neighboring countries, in particular Berryland
stating

that

supporting

the

NDRA

and

its

secessionist

stance

constitutes an unacceptable intrusion in Vanilias internal affairs in

violation of UN Charter and would be dealt with in an appropriate
manner.
13.

Meanwhile,

NDRA

Fighters

continued

to

be

in

direct

confrontation with Vanilian forces at the Losovo borders. The NDRA

successfully thwarted the Vanilian Security Forces attempts to gain
control of Losovo territory hence; Vanilia government called for
international support and expressed concerns about the security of the
Lemi people in Losovo. More than 500 Vanilian forces were attacked
when they moved into Losovo and fierce fighting continued resulting in
heavy casualties on both sides.
14.

On June 10, 2009, NDRA fighters patrolling Rizoba and reinforcing

their control over the city took control of the VPF Secretariat office.
They found people consisting of women and children and took them in
custody interrogating them. It was then reported that around 12
members who escaped from the hands of NDRA fighters that they were
ill-treated and subjected to severe beatings. When journalists asked
about the others that were taken away, they said they were doubtful
whether they were still alive.

Brief for the Prosecutor | 8

15.

As the situation worsened, on 6 July 2009, the Minota Economic

Forum (MEF), a regional organization working for economic cooperation in the region, appealed to all parties to restrain themselves
and to declare a ceasefire, and requested the United Nations Security
Council to intervene in the matter. It further invited the Vanilian
government and the FDP to Geneva to negotiate a solution to the
conflict. The Vanilian government expressed its willingness and
nominated a ten-member delegation. The FDP also expressed its
willingness to send a delegation provided that the issue of secession
remained non-negotiable. The FDP nominated its delegation headed by
Mr. William Tanatia, the Minister for Foreign Affairs of the interim
government of Losovo.
16.

Based on the warrant issued by the ICC Prosecutor, and

confirmed by a pre-trial chamber of the ICC, plain-clothed Vanilian

security forces took David Dabar into custody from his residence in
Rizoba on 5 August 2009 and surrendered him to the ICC for trial.

Brief for the Prosecutor | 9

SUMMARY OF PLEADINGS

Crime against humanity of deportation or forcible transfer of

population
The prosecutor submits that David Dabar has committed the
crime against humanity of deportation or forcible transfer of
population as being the figurehead of NDRA (National Democratic
Alliance) in relation to acts committed contributing to the chaos
that took place in Rizoba amounting to a violation of Article 7
par.1 (d) of the Rome Statute of the International Criminal Court.
The prosecutor also submits that Vanilia, being a signatory to the
four Geneva Conventions, David Dabar has as well violated
provisions of the Conventions relating to armed conflicts.
War Crime of Taking Hostages
The prosecutor submits that David Dabar has committed the
crime of taking hostages amounting to a violation of Article 8 par.
2 (c)(viii) of the Rome Statute of the International Criminal Court
in relation to acts committed contributing to the chaos that took
place in the residences of Rizoba. The prosecutor as well submits
that Vanilia, being a signatory to the four Geneva Conventions,
David Dabar has as well violated provisions of the Conventions
relating to armed conflicts.

Brief for the Prosecutor | 10

 War Crime of Willful Killing

The prosecutor submits that David Dabar has committed the war
crime of willful killing amounting to a violation of Article 8 par.2
(a)(i) of the Rome Statute of the International Criminal Court in
relation to acts committed contributing to the chaos that took
place in Rizoba. The prosecutor as well submits that Vanilia,
being a signatory to the four Geneva Conventions, David Dabar
has as well violated provisions of the Conventions relating to
armed conflicts.

PLEADINGS

Brief for the Prosecutor | 11

 Crime against humanity of deportation or forcible transfer of

population
The prosecutor submits that David Dabar is guilty of committing the
crime against humanity of deportation or forcible transfer of population
in relation to the acts committed by NDRA being its figurehead and its
declaration that all pro-independence of Losovo associations would
take guidance from its leader David Dabar.
Further, existence of the elements of crime is evident as follows:
1. The perpetrator seized, detained or otherwise held hostage of
one or more persons
This first element exists with the fact that civilian Lemi people
who were residents of Rizoba specifically in Pleasant Gardens on
Febuary 10, 2009 around 400 of them were forcibly brought into
the main square of the location and were brought to the border
with false promise of ensuring their safety. These residents were
kept in camps 60 kilometers away from Rizoba. This is clearly in
violation of the Article 7 par.1 (d) of the Rome Statute of the
International Criminal Court.
As defined in the Geneva Conventions, specifically in Article 49 of
the 4th Convention and Article 17 of Protocol 2 allowing total or
partial

evacuation

of

population

if

the

security

of

said

population or imperative military reasons so demand and that

said persons shall be transferred back to their homes as soon as
hostilities in the area have ceased.
No security reasons to justify the forcible deportation nor was the
Lemi people transferred back to their homes after said transfer;
hence, David Dabar is liable.

Brief for the Prosecutor | 12

2. The perpetrator threatened to kill, injure or continue to detain

such persons
The second element exists as well considering the chaos that
ensued in Vanilia, attacks made by NDRA to government
properties and vehicles on May 22, 2009. These attacks
extended to innocent Lemi people as well as to their properties.
Moreover, the detention of Lemi people since February 10, 2009
were evacuated without having a trace of those who were
detained except those Lemi people who were able to escape the
camps. The burning and desecration of the Vanilia national flag is
also considered as an attack1.
Attack as defined under Article 49 of the Additional Protocols of
1977 means acts of violence against the adversary, whether in
offence or defence. Hence, the acts conducted on government
property as well as those conducted on the Lemi people and their
properties are considered as an attack not only to the
government but also the civilian population.
3. The perpetrator intended to compel a State, an international
organization, a natural or legal person or a group of persons to
act or refrain from acting as an explicit or implicit condition for
the safety or the release of such person or persons.
The third element exists since what led to the creation of the
NDRA (Nomag Democratic Resistance Alliance), a radicalized
faction

group

supported

by

the

Nomags

was

to

obtain

independence of Losovo from Vanilia. Moreover, acts of members

who conducted the abuses as well as protests throughout Vanilia
and in Losovo were under the guidance of the faction and its
1 Article 39, par. 2 of Additional Protocols of 1977: It is prohibited to make use of
flags or military emblems, insignia or uniforms of adverse parties while engaging in
attacks in order to shield, favor, protect or impede military operations.

Brief for the Prosecutor | 13

leader David Dabar. Moreover, the third element solidifies its

existence when David Dabar, upon responding to the criticisms
hurled at the members of the faction and its actions declared to
understand the emotionally stirred-up and politically agitated
Nomag population.
4. Such person or persons were either hors de combat, or were
civilians, medical personnel or religious personnel taking no
active part in the hostilities.
The fourth element exists as ever since February 10, 2009, NDRA
and NSA members under the lead and guidance of David Dabar
were forcibly displacing Lemi residents of Rizoba specifically in
Pleasant Gardens affirming the fact that crime was committed
against civilians.
Hence, a clear and blatant violation of the Additional Protocols of
1977 of the Four Geneva Conventions substantially providing
that protection shall be afforded to persons or any person in this
matter

affected

by

an

armed

conflict

which

furthermore

stipulates that parties to the conflict and individual combatants

must not attack the civilian population and must conduct their
military operations in conformity with the recognized rules of
international humanitarian law2.
5. The perpetrator was aware of the factual circumstances that
established this status.
With the fact that the acts of the members of the NDRA as well
as that of the NSA were under the lead and guidance of their
2 Article 51, para. 1 and 2: (1) The civilian population and individual civilians shall
enjoy general protection against dangers arising from military operations. (2) The
civilian population as such, as well as individual civilians, shall not be the object of
the attack. Acts or threats of violence the primary purpose of which is to spread
terror among the civilian population is prohibited.

Brief for the Prosecutor | 14

figurehead David Dabar, there can only be one conclusion that

he knows and that he has knowledge over the acts contributed
by the NDRA and NSA to the hostilities in Vanilia as well as to
those parts in Losovo.
War Crime of Taking Hostages
The prosecutor submits that David Dabar has committed the war crime
of taking hostages in violation of Article 8 paragraph 2(c)(iii) of the
Rome Statute of the International Criminal Court with the presence of
these elements of the crime in relation to the hostilities in Vanilia and
in Losovo:
1. The perpetrator seized, detained or otherwise held hostage of
one or more persons
A hostage is a person who is taken by force by someone in
accordance to the takers demands3. Such definition mirrors that
of the Lemi people who were forcibly taken from their residences
in Rizoba and placed into camps near the border. These Lemi
people were forcibly brought into camps 60 kilometers away
from Rizoba. The act of hostaging a person or in this case the
hostaging of 400 Lemi people by the NDRA and NSA is
specifically

prohibited

not

only

in

the

Rome

Statute

of

International Criminal Court but also in the Four Geneva

Conventions which Vanilia is a signatory to it4.
2. The perpetrator threatened to kill, injure or continue to detain
such persons
3 Merriam Webster Dictionary definition stating that hostage is a noun and is fully
defined as a person captured by someone who demands that certain things be done
before captured person is freed.
4 Common Article 3 of all the 4 Geneva Conventions in relation to non-international
armed conflicts specifically prohibiting the taking of hostages.

Brief for the Prosecutor | 15

The second element exists as well considering the hostilities that

ensued in Vanilia, attacks made by NDRA to government
properties and vehicles on May 22, 2009. These attacks
extended to innocent Lemi people as well as to their properties.
Moreover, the detention of Lemi people since February 10, 2009
were evacuated without having a trace of those who were
detained except those Lemi people who were able to escape the
camps. The burning and desecration of the Vanilia national flag is
also considered as an attack5.
Attack as defined under Article 49 of the Additional Protocols of
1977 means acts of violence against the adversary, whether in
offence or defence. Hence, the acts conducted on government
property as well as those conducted on the Lemi people and their
properties are considered as an attack not only to the
government but also the civilian population.
3. The perpetrator intended to compel a State, an international
organization, a natural or legal person or a group of persons to
act or refrain from acting as an explicit or implicit condition for
the safety or the release of such person or persons.
The third element exists as acts of members who conducted the
abuses as well as protests throughout Vanilia and in Losovo were
under the guidance of the faction and its leader David Dabar.
Moreover, the third element solidifies its existence when David
Dabar, upon responding to the criticisms hurled at the members
of the faction and its actions declared to understand the
emotionally

stirred-up

and

politically

agitated

Nomag

population.
5 Article 39, par. 2 of Additional Protocols of 1977: It is prohibited to make use of
flags or military emblems, insignia or uniforms of adverse parties while engaging in
attacks in order to shield, favor, protect or impede military operations.

Brief for the Prosecutor | 16

4. Such person or persons were either hors de combat, or were

civilians, medical personnel or religious personnel taking no
active part in the hostilities.
The fourth element exists as ever since February 10, 2009, NDRA
and NSA members under the lead and guidance of David Dabar
were forcibly displacing Lemi residents of Rizoba specifically in
Pleasant Gardens affirming the fact that crime was committed
against civilians. The victims were men, women, and children all
civilian and were innocent inhabitants of Rizoba.
Hence, a blatant violation of the Additional Protocols of 1977 of
the Four Geneva

Conventions substantially providing that

protection shall be afforded to persons or any person in this

matter

affected

by

an

armed

conflict

which

furthermore

stipulates that parties to the conflict and individual combatants

must not attack the civilian population and must conduct their
military operations in conformity with the recognized rules of
international humanitarian law6.
5. The perpetrator was aware of the factual circumstances that
established this status.
With the fact that the acts of the members of the NDRA as well
as that of the NSA were under the lead and guidance of their
figurehead David Dabar, there can only be one conclusion that
he knows and that he has knowledge over the acts contributed
by the NDRA and NSA to the hostilities in Vanilia as well as to
those parts in Losovo.
6 Article 51, para. 1 and 2: (1) The civilian population and individual civilians shall
enjoy general protection against dangers arising from military operations. (2) The
civilian population as such, as well as individual civilians, shall not be the object of
the attack. Acts or threats of violence the primary purpose of which is to spread
terror among the civilian population is prohibited.

Brief for the Prosecutor | 17

6. The conduct took place in the context of and was associated with
an armed conflict not of an international character.
The armed conflict prevailing throughout Vanilia as well as in
Losovo were not associated with that of an international
character as the primary objective of the attacks done by the
members of NDRA and NSA were to obtain independence from
Vanilia.
7. The perpetrator was aware of factual circumstances that
established the existence of an armed conflict.
Existence of this element is as well present considering the fact
that David Dabar is the leader and the figurehead of NDRA and
NSA both radicalized factions with the primary objective of
obtaining independence from Vanilia hence it would be logical to
conclude he has knowledge of the acts done by the members of
the factions considering he is the one guiding them.

War Crime of Willful Killing

The prosecutor submits that David Dabar is guilty of committing the
war crime of willful killing in relation to the acts committed by NDRA
and NSA being its figurehead and its declaration that all proindependence of Losovo associations would take guidance from its
leader David Dabar and in clear violation of Article 8, paragraph 2 (a)
of the Rome Statute of the International Criminal Court with the
presence of these elements:
1. The perpetrator killed one or more persons.
This element exists in lieu of the published news in Losovo
Messenger on June 11, 2009 on those Lemi people who were able

Brief for the Prosecutor | 18

to escape from the hands of NDRA. These Lemi people who were
able to escape also testified as to their doubts to other Lemi
people who were forcibly displaced whether they were still alive
or dead. The deaths of innocent people during the hostilities are
enough to make David Dabar liable.
2. Such person or persons were protected under one or more of the
Geneva Conventions of 1949.
Article 4 of the Fourth Geneva Convention provides that persons
protected by the Convention are those who, at a given moment
and in any manner whatsoever, find themselves, in case of a
conflict or occupation, in the hands of a Party to the conflict or
occupying power of which they are not nationals. In this case, the
Lemi people were merely seeking refuge in the VPF secretariat
office during the hostilities happening in Vanilia hence, are
covered under the protection of the Fourth Geneva Convention.
3. The perpetrator was aware of the factual circumstances that
established that protected status.
This element exists as well considering that upon the criticisms
hurled towards the acts of NDRA and being the leader of said
radicalized faction, David Dabar upon declaring to Lemi civilians
to understand the emotionally stirred-up and politically agitated
Nomag only shows that he has knowledge that civilians will
surely be affected as civilians they are protected under the
Geneva Conventions considering Vanilia is a signatory to it.
4. The conduct took place in the context and was associated with
an international armed conflict
This element exists as the Nomags number one cause for the
attacks they have done are because of the thirst to obtain
independence from the alleged racist treatment the Vanilian

Brief for the Prosecutor | 19

government over the Nomags as that provided in the Additional

Protocol

to

Geneva

Convention7.

Racist

treatment

was

established as seen from their underrepresentation in parties,

the non-acceptance of Nomagi language as one of official
languages in Vanilia.
5. The perpetrator was aware of factual circumstances that
established the existence of an armed conflict.
Armed conflict surely existed as evidenced by the multitude of
protests conducted by pro-Nomag rights, the forcible movement
of Lemi residents without justifiable reason and purely for their
cause of obtaining independence from Vanilia and other attacks
made on government properties as well as that of civilians.

PRAYER
WHEREFORE, the prosecution side submits that David Dabar has been
proven beyond reasonable doubt that due to his failure to effectively
exercise control over his subordinates as to those of NDRA and NSA,
thus he should bear the criminal responsibility for three crimes under
the Rome Statute of Criminal Court.
7 Article 1(4) of Additional Protocol to Geneva Convention: An international armed
conflict exists when people are fighting against racist regimes in exercise of their
self-determination.

Brief for the Prosecutor | 20

The prosecution side prays that this Honorable Court adjudge and
declare that:
-David Dabar is guilty of committing the crime against humanity of
deportation or forcible transfer of population under Article 7 (1)(d) of
the Rome Statute of the International Criminal Court.
-David Dabar is guilty of committing the war crime of taking hostages
in violation of Article 8 paragraph 3 (c) of the Rome Statute of the
International Criminal Court.
-David Dabar is guilty of committing the war crime of willful killing in
violation of Article 8, paragraph 2 (a)(i) of the Rome Statute of the
International Criminal Court.
RESPECTFULLY SUBMITTED,
Counsel for the Prosecution

Brief for the Prosecutor | 21