16th Henry Dunant Memorial Moot Court Competition, 2016

Original: English

Date: 23-25 September 2016

No.: ICC-01/__________

ICC TRIAL CHAMBER

At The Hague

SITUATION IN THE STATE OF RODINGA

IN THE CASE(S) OF
THE PROSECUTOR v. BRIGADIER ZACHESU
THE PROSECUTOR v. BRIGADIER VASVODINA

PUBLIC DOCUMENT
WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENDANTS

THE DEFENCE
TABLE OF CONTENTS
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16th Henry Dunant Memorial Moot Court Competition 2016

TABLE OF CONTENTS...........................................................................................................ii
INDEX OF AUTHORITIES.....................................................................................................iv
STATEMENT OF JURISDICTION.........................................................................................vi
ISSUES RAISED.....................................................................................................................vii
STATEMENT OF FACTS......................................................................................................viii
SUMMARY OF PLEADINGS.................................................................................................xi
PLEADINGS..............................................................................................................................1
I.

BRG. ZACHESU IS NOT GUILTY OF CRIMES AGAINST HUMANITY UNDER

Art. 7(1)(a).................................................................................................................................1
(A.) The conduct was not part of a systematic attack........................................................1
(B.) The attack was not directed against a civilian population..........................................2
(C.) Zachesu did not intend the conduct to be part of a widespread or systematic attack. 5
II.

BRG. ZACHESU IS NOT GUILTY OF WAR CRIMES UNDER ART. 8(2) (c)(i).........5
(A.) Such persons were not presumed to be civilians and brigadier Zachesu was not
aware of any factual circumstances that would prove otherwise.......................................6
(B.) Effect of Art.28 (a) as a defense to consequence of orders by Brigadier Zachesu to
subordinates........................................................................................................................7

III.

BRG. VASVODINA IS NOT GUILTY OF CRIMES AGAINST HUMANITY

UNDER ART. 7(1)(i) OF THE ROME STATUTE....................................................................8

(A.) The capturing of 50 civilians and 50 paramilitary personnel was not an enforced
disappearance but an attempted evacuation.......................................................................9

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(B.) There was no refusal to acknowledge the detention, or to give information about the
fate or the whereabouts of such persons..........................................................................10
IV.

BRG. VASVODINA IS NOT GUILTY OF WAR CRIMES UNDER ART. 8(2) (b)(iv)
11
(A.) Vasvodina did not know that the attack would cause death, injury or damage of such
an extent as to be clearly excessive in relation to the concrete and direct overall military
advantage anticipated or attracted under the fourth element...........................................12
(B). The conduct was not part of an international armed conflict....................................14

PRAYER..................................................................................................................................17

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INDEX OF AUTHORITIES
CASES
Prosecutor V Zejnil Delalic, Zdravko Mucic (aka Pavo), Hazim Delic and Esad Lando
(aka Zenga) (lebici Case), IT-96-21-A, Appeals Judgement, 20 February 2001..........7
Prosecutor V. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23-T& IT-9623/1-T, Trial Chamber Judgement, 22 February 2001.......................................................1, 3
Prosecutor v. Tihomir Blaskic, IT-95-14-A, Appeal Judgement, 29 July 2004.........................5
Prosecutor V. Zoran Kupreskic, Mirjan Kupre[ki], Vlatko Kupre[ki], Drago Josipovi], Dragan
Papi], Vladimir [Anti], also known as Vlado, IT-95-16-T, Trial Chamber Judgement, 14
Jan 2000.................................................................................................................................5
Prosecutor Versus Jean-Paul Akayesu, ICTR-96-4-T, Trial Chamber Judgement, 2 September
1998........................................................................................................................................2
The Prosecutor v. Clment Kayishema and Obed Ruzindana, ICTR-95-1-T, Trial Judgement,
21 May 1999, 124, 581........................................................................................................2
United States v List and ors; 7 LRTWC 1253, 18 January 1949.............................................13
STATUTES
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States),
1986, I.C.J, (June 27)...........................................................................................................16
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 2187 U.N.T.S. 90 iv, v,
vi
TREATISES AND DIGESTS
Dictionary of International Law of Armed Conflict, ed. ICRC, 1992.....................................13

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Yves Sandoz, Christophe Swinarski, Bruno Zimmermann, eds, Commentary on the
Additional Protocols of 8 June 1977 (Geneva: Martinus Nijhoff, 1987), 1973...................13

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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 a 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)
(b)
(c)
(d)

The Crime of Genocide;

Crimes against humanity;
War Crimes;
The Crime of Aggression.

And both Rodinga and Zawalu are parties to the ICC statute1
The Defence is not contending the jurisdiction of this Honble Court.

1 2, Page 14, Moot Problem.

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ISSUES RAISED
The Prosecutor respectfully asks this Honourable Court:
I.

Whether Brigadier Zachesu be found guilty for Crimes against humanity, for
killing civilians on the night of 16 th April 2012 at Rukama, under Art. 7(1)(a) of
the Rome Statute;

II.

Whether Brigadier Zachesu be found guilty of War Crimes, for killing of the AFD
fighters and civilians at Rukama on 17th April 2012, under Art. 8 (2) (c)(i) of the
Rome Statue;

III.

Whether Brigadier Vasvodina be found guilty for Crimes against humanity, for
enforced disappearance of captured mine employees and Rodingan paramilitary
forces during December 2011 strike, under Art. 7(1) (i) of the Rome Statute;

IV.

Whether Brigadier Vasvodina be found guilty for War Crimes, for launching
attacks on industries in Rekht city that resulted in widespread, long-term and
severe damage to the natural environment, under Art. 8 (2) (b) (iv) of the Rome
Statute.

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STATEMENT OF FACTS
(1.)Rodinga, a colony of Suzophia became independent in July,1970 after forty years of
active struggle under the Rodingan Nationalist Democratic Party (hereinafter RNDP).
Rodinga is a secular, democratic and republic country divided into five states. These states
are Sinsalu in the north, Kambhatka in the east, Radusaria in the south, Nilodonia in the west
and Sanrolia in the centre, its borders touched all other states. Tirsone, the capital of Rodinga
is located in Central Sanrolia. Sinsalu and Kambhatka has more than 75% rich forest cover of
Rodinga and there was widespread health and environmental problems in them due to intense
extraction of natural resources. Sanrolia, densely populated and heavily industrialised.
(2.)

RNDP under the leadership of Mr. Ragoba, headed the freedom struggle. After

independence Mr. Ragoba became the first Prime Minister (PM). The main opposition party
is Rodinga Socialist Republican Party (hereinafter RSRP) headed by Mr. Sari Salania. The
constitution of Rodinga; did not provide for state governments, it provided for fundamental
rights to the people, emergency provisions and all executive powers of the government vested
with the PM, he has powers to declare and withdraw emergency.
(3.)

Enduring Federation: Our Right (EFOR), headed by elected leader Mr. Nasan

Aldolo advocated for rights of States to control their resources. Mr. Sari Salania and Nasan
Aldolo were arrested during peaceful protest in Tirsone. Mr. Pinto Alberto, Chief Editor of
The Morning, a reputed newspaper was also arrested on defamation charges.
(4.)

Mr. Ragoba was assassinated by a suicide bomber. Rodingan cabinet collectively

decided to declare Mr. Radula, son of Ragoba as PM. The next day, Mr. Radula declared
emergency extending to the whole of Rodinga. The forthcoming elections were suspended

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and RSRP and EFOR banned. The workers of RSRP and EFOR who moved into dense areas
of forest came together to form Army for Democracy (hereinafter AFD) and engaged in
sustained low scale violence against government police and paramilitary forces.
(5.)

In 1995, AFD was declared terrorist organisation Mr. Salania, Mr. Aldolo and Mr.

Alberto were declared joint presidents of AFD after their jailbreak. AFD declared through
internet to fight for the establishment of federal democracy. State units were established and
they actively engaged in broadening their support and membership increase exponentially
and it re-established its operational branch under the leadership of Brigadier. Vasvodina.
(6.)

In December 2011, the AFD launched a series of coordinated attacks against

government buildings and installations in Sinsalu and Kambhatka. They captured gold mines
of Samchatka and Tikalu (in Kambhatka) and coalmines of Rasinia and Kaluma (in Sinsalu).
50 personnel of the Rodingan paramilitary and almost 50 employees that working in these
mines were capture. Subsequently, attempts by International Humanitarian Enforcement
Agency (IHEA) to establish communication links with AFD failed. However, in May 2012,
Brigadier (Brg.) Vasvodina informed the visiting officials of the IHEA that the captured
persons embraced AFD ideals and were out in Rodinga to spread its ideals.
(7.)

A Government army operation to liberate AFD occupied coal mines was led by

Brigadier (Brg.) Zachesu. On their way they fought intense battles with AFD. When they
reached Rukama, a suburban town 50 kms from Rasinia, they were intensely confronted by
AFD fighters and were kept at bay for one week. Brigadier Zachesu lost 50 armed personnel
and her subordinates aerial dropped pamphlets on 15 April 2012 (Sunday) with instructions to
civilians to leave Rukama. On the night of 16th April 2012, the forces started heavy shelling
from tanks and also used drones and fighter jets to attack positions of AFD fighters. This
resulted in widespread destruction of civilian property and resulted in death of 100 civilians
and 50 AFD fighters. Brg. Zachesu entered Rukama with her forces next morning.

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(8.)

They found more than 50 civilians hiding in natural caves, they were beaten, and their

bodies were subject to many kinds of inhuman invasions on their private organs. The
wounded AFD fighters and civilians were either murdered or left without any arrangement
for medical care. The Government claimed on entering Rukama, it was deserted and they
pleaded operational constraint to search for missing civilians. Brg. Zachesu made Rukama a
temporary base camp. On 23 May 2012, the UN Peacekeeping forces discovered mass graves
of almost 450 persons in Rukama. Their medical team prepared forensic reports indicating
that almost 40 bodies were subjected to brutal physical invasions on their private organs
before their death and almost 250 bodies had the marks of bullets on their skulls with other
injuries. The remaining 160 died due to heavy explosions and asphyxiation.
(9.)

After the defeat at Rukama, AFD sought active support from the neighbouring

country of Zawalu, which shares borders with Sinsalu and Kambhatka. On 1 st May 2012,
Zawalu declared war against Rodinga sighting humanitarian commitment. On the 10 May
2012, the AFD and Zawaluan forces deployed personnel at the border of Rekht industrial city,
in Sanrolia. These industries are situated on the banks of Sanrole which was an important
source of drinking water for population of Rekht and other cities downstream. Industries were
heavily guarded by Government forces even though they were closed due to lack of raw
materials.
(10.)

On 11 May 2012, the Government stated its intent to provide uninterrupted

movement to the Zawaluan forces and AFD fighters; provided that they would not attack the
industries of Rekht, and indicated possible environmental catastrophe if Rekht was attacked.
Brg. Vasvodina disregarded this and launched an attack during early hours of 12 May 2012,
which involved intense fighting with heavy arsenal from both sides, which lead to the leakage
of Agent X a dangerous chemical and damaged the whole ecology Sanrole beyond human
contemplation. All water purification plants downstream had to be closed and resulted in

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acute water scarcity in Sanrolia, which resulted in causing the death of 100 people.
Environmental experts claimed it would take a minimum of a decade to wipe out the
chemicals from river cycle. Post UNSC resolution 206, a tripartite ceasefire agreement was
reached between conflicting parties, on 23 May 2012. The ICC Prosecutor decided to bring
charges on Brg. Zachesu and Brg. Vasvodina.
SUMMARY OF PLEADINGS
I.

Brg. Zachesu is not guilty of crimes against humanity since it was neither a
systematic or intended to be a widespread attack and it was not directed against
civilian population. It was in satisfaction of a military objective. Necessary
precautions were taken to protect civilians and mental elements are not satisfied.

II.

He is not guilty under Art. 28(a) and Art. 25.

Brg. Zachesu is not guilty of war crimes under Art. 8(2) (c) (i) since they cannot be
presumed or any proof that they are only civilians. The town was deserted and any
damage by murdering innocent civilians or caused death to them. The common

III.

threshold for non-international war crimes has not been reached.

Brg. Vasvodina is not guilty of crimes against humanity since they were rescued
and humanely treated, there was no denial or intent to deny their whereabouts. It
was not in furtherance of AFDs organisational policy. He is not liable under Art.
25 (2), (3) and also not liable under Art. 28 (a). The mental element under Art. 30

IV.

is not satisfied by way of conduct or actions.

Brg. Vasvodina is not guilty of war crimes under Art. 8(2) (b)(iv) since it was non
international armed conflict and he neither had the knowledge or intent that attack
on industries will result in damage. The damage is caused due to closing of water
purification plants and it was done in pursuance of military objective to get a
concrete and direct advantage.

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PLEADINGS
I.

BRG. ZACHESU IS NOT GUILTY OF CRIMES AGAINST HUMANITY

UNDER Art. 7(1)(a).

(1.)

Brigadier Zachesu notified an evacuation warning by aerial drop of pamphlets on 15th

April. On the night of 16th April the forces used drones fighter jets and shell tanks to attack
positions of AFD fighters as a result of which there was destruction of civilian property, and
death of 100 civilians and 50 AFD fighters. The elements of crime that constitute murder
under Art.7 (1) (a) are that a) the perpetrator must have killed/caused the death of one or more
persons, b) the conduct was committed as part of a widespread or systematic attack directed
against a civilian population. This attack is directed against any civilian population, and c) the
perpetrator knew that the conduct was part of or intended the conduct to be part of a
widespread or systematic attack against a civilian population.
(A.) The conduct was not part of a systematic attack
( 2.) The term systematic refers to an organized nature of the acts of violence and the
improbability of their random occurrence, and is often expressed through patterns of crimes,
in the sense of (non-accidental repetition of similar criminal conduct on a regular basis) as in
Kunarac trial chamber.2
2 Prosecutor V. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23-T& IT-96-23/1-T, Trial
Chamber Judgement, 22 February 2001, 429

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(3.)

The attack must contain one of the alternate conditions of being widespread or

systematic, not both, as in the French text of the Statute. Customary international law
requires only that the attack be either widespread or systematic.3
The concept of systematic may be defined as thoroughly organized and following a regular
pattern on the basis of a common policy involving substantial public or private resources.
There is no requirement that this policy must be adopted formally as the policy of a state.
There must however be some kind of preconceived plan or policy.4
(4.)

Further, for an act of mass victimization to be a crime against humanity, it must

include a "policy element".

"The requirements of widespread or systematic are enough to exclude acts not committed as
part of a broader policy or plan. Additionally, the requirement that the attack must be
committed against a civilian population . . . demands some kind of plan and, the
discriminatory element of the attack is . . . only possible as a consequence of a policy.5
Although the there have been several instances of violence over almost three decades of
Rodingan history evident from the facts sheet, the incidents themselves are isolated events
with different intention, damage, collateral damage of different degrees. The resultant damage
arose from different methods of combat as well. There fore the incident at Rukama is not an
instance of similar criminal conduct on a regular basis, nor is it a non-accidental repetition.
(B.) The attack was not directed against a civilian population
3 Prosecutor Versus Jean-Paul Akayesu, ICTR-96-4-T, Trial Chamber Judgement, 2
September 1998, 579.

4 Ibid. 580. (ICTR).

5 The Prosecutor v. Clment Kayishema and Obed Ruzindana, ICTR-95-1-T, Trial Judgement, 21 May 1999,
124, 581. (ICTR)

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(5.) For the purpose of the Art 50(3) of AP l of the Geneva Conventions 1949, any attack
directed against any civilian population "means a course of conduct involving the multiple
commission of acts referred to in Art 50(3) paragraph 1 of AP l against any civilian
population, pursuant to or in furtherance of a State or organizational policy to commit such
attack'' where a civilian population is not deprived of its civilian nature by the presence of
non-civilians. The use of the word population in the statutory provision, however, does not
mean that the entire population of the geographical entity in which the attack is taking place
must have been subjected to the attack. It is sufficient to show that enough individuals were
targeted in the course of the attack, or that they were targeted in such a way as to satisfy the
Chamber that the attack was in fact directed against a civilian population, rather than
against a limited and randomly selected number of individuals. 6 As in this case, the 100
civilian casualties were attacked not as part of civilian population but against a randomly
selected number of individuals.
(6.)

The foremost lack of intention to direct attack against a civilian population can be

inferred from the precautionary measure of dropping evacuation warning pamphlets via air
drop, by the Govt. forces. This means of evacuation warning is practiced and recognized in....
This precautionary measure in in compliance of Rule 15 of customary IHL that states that in
the conduct of military operations, constant care must be taken to spare the civilian
population, civilians and civilian objects. All feasible precautions must be taken to avoid, and
in any event to minimize, incidental loss of civilian life, injury to civilians and damage to
civilian objects. This is also reflected in AP 1, Art.57 that talks about precautions in attacks.
(7.) Additional Protocol II does not explicitly require such precautions. Article 13(1),
6 Prosecutor V. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23-T& IT-9623/1-A, Appeals Chamber Judgement, 12 June 2002, 90. (ICTY).

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however, requires that the civilian population and individual civilians shall enjoy general
protection against the dangers arising from military operations, and it would be difficult to
comply with this requirement without taking precautions in attack. The obligation to take
constant care and/or to take precautions to avoid or minimize incidental civilian losses is
further contained in military manuals, which are applicable in or have been applied in noninternational armed conflict.7
(8.)Rule 71 of customary IHL and Art.51 (4) of AP l enunciate the principle of
discrimination. Indiscriminate attacks under Rule 12 (a) are those, which are not directed at a
specific military objective, (b) which employ a method or means of combat which cannot be
directed at a specific military objective; and consequently, in each such case, are of a nature
to strike military objectives and civilians or civilian objects without distinction. Firstly, it is
contended that the bombing of Rukama is a military objective under Rule 8 of customary IHL
in that it is an object of such nature that by its location makes an effective contribution to
military action and whose neutralization in the circumstance ruling at the time, offers a
definite military advantage. The circumstance erstwhile was situation of heavy losses of
Government army personnel to battles with AFD fighters and the latter were keeping the
government forces at bay for over a week preventing their military objective.
(9.) Secondly, it is contended that the methods of combat used in this particular case are
those that can be directed at a specific military objective. The Convention on Certain
Conventional Weapons expressly specifies some examples of indiscriminate weapons, which
exclude drones, fighter jets and shells from tanks. In the Nuclear Weapons Advisory Opinion,
the Court contended that, States must never make civilians the object the attack and must
consequently never use weapons that are incapable of distinguishing between civilian and
7 For example: United Kingdom, Canada, Spain, France, Ecuador and Cameroon.

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military targets. In relation to this topic regarding drones in warfare, it is contended that
while drones provide improved accuracy capabilities, like every weapon, they fundamentally
aim to harm. As such, while they do not fall under inherently indiscriminate weapons, they
could nonetheless be used indiscriminately and as such could incur culpability for breaches of
IHL regulations. Thus drones, fighter jets and shells from tanks are discriminate weapons. "A
crime against humanity applies to acts directed against any civilian population" and the attack
in question being discriminate and launched only at a military objective for a military
advantage negates the argument that the attack was crime against humanity.8
(C.) Zachesu did not intend the conduct to be part of a widespread or systematic attack.
(10)The Government Brigade under Brig.Zachesu entered into intense battles with AFD
fighters and subsequently launched an attack as actions only incidental to the military
objective of liberating the coalmines of Rasinia and Kaluma. Even assuming the presence of
a systematic attacks, the attack on the night of the 16th was not an of an organized nature
pursuant to or in furtherance of organizational policy to commit such an attack. Kupreki
Trial Chamber has held that the standard of mens rea required is intentional and
premeditated killing,9 although it did also state in the same paragraph that the standard is
satisfied by the intent to inflict serious injury in reckless disregard of human life. There was
thus no premeditated killing of a civilian population and the same is evident from the fact that
necessary precautions were taken by the Government army in compliance with Rule 15 of
customary IHL and AP l Art.57. The damage to civilian property and loss of life were
8 Prosecutor v. Tihomir Blaskic, IT-95-14-A, Appeal Judgement, 29 July 2004, 107. (ICTY)

9 Prosecutor V. Zoran Kupreskic, Mirjan Kupre[ki], Vlatko Kupre[ki], Drago Josipovi], Dragan Papi], Vladimir
[Anti], also known as Vlado, IT-95-16-T, Trial Chamber Judgement, 14 Jan 2000, 561.

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therefore only collateral damage from action upon a military objective as elaborated earlier.
II.

BRG. ZACHESU IS NOT GUILTY OF WAR CRIMES UNDER ART. 8(2) (c)(i)

(11.) As a result of the attacks on the night of 16th April 2012, Brig.Zachesu along with her
forces entered Rukama on the morning of 17th April 2012. They found more than 50 civilians
hiding in natural caves, who were then beaten, and their bodies were found to have been
subjected to many kinds of inhuman invasions on their private organs. The prosecution has
charged Brigadier Zachesu for murder, cruel treatment, torture and inhumane or degrading
treatment of crime that constitute a war crime of under Art.8 (2) (c) (i) of the Rome Statute.
(12.)Apart from the criterion of the specific offences, common requirements or elements
under Art.8 for all the underlying offences here under are a) Such person or persons were
either hors de combat, or were civilians, medical personnel, or religious personnel taking no
active part in the hostilities, and that the perpetrator was aware of the factual circumstances
that established this status. Also, that c) the conduct took place in the context of and was
associated with an armed conflict not of an international character and that d) the perpetrator
was aware of factual circumstances that established the existence of an armed conflict. Thus
without the fulfillment of these requirements, the presence of other elements of the specific
offences would not draw conclusion of commission of the crime under the relevant subprovision. These issues will be discussed below.
(A.) Such persons were not presumed to be civilians and brigadier Zachesu was not aware of
any factual circumstances that would prove otherwise.
(13.) A reference to the factual circumstances leading up to the incident would show that i)
a prior claim of civilians being active supporters and collaborators of AFD activities, ii) the
week of prior fighting, iii) dropping of warning pamphlets, and iv) overnight bombardment

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support the reasonable assumption that all those did not comply with the evacuation
notification were either non-civilians or in connivance with the AFD fighters. By virtue of
Art.32 (1) of the Rome Statute, a mistake of fact shall be a ground for excluding criminal
responsibility only if it negates the mental element required by the crime. There was thus a
mistake of fact as to the status of the persons found in the natural caves.
(B.) Effect of Art.28 (a) as a defense to consequence of orders by Brigadier Zachesu to
subordinates.
(14.) Among the several grounds of criminal responsibility under the Rome Statute for
crimes within the jurisdiction of the Court, 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: (i) That
military commander 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 (ii) That military
commander 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. In Delalic , the ICTY concluded that the knew or had reason
to know standard set in Article 7(3) of the [ICTY] Statute must be interpreted as requiring
the commander: (i) to have actual knowledge, established through direct or circumstantial
evidence, that his subordinates were committing or about to commit crimes . . . or (ii) to
have in his possession information of a nature, which at least, would put him on notice of the
risk of such offenses . . . 10 In the particular case, it was the Brigadier Zachesu's forces that
10 Prosecutor V Zejnil Delalic, Zdravko Mucic (aka Pavo), Hazim Delic and Esad Lando (aka Zenga)
(lebici Case), IT-96-21-A, Appeals Judgement, 20 February 2001, 223. ICTY

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found the civilians hiding in the caves and subsequently beaten and subject to brutal
treatment. She could not have known that her orders to enter Rukama amidst operational
restraints would result in her forces committing such a crime. The mens rea of knowledge as
expressed under Art.30 (2) (a) and (b) were absent in relation to conduct and consequence.
Further, the condemnation by the UN Secretary-General of the incidents of Rukama and
urging of prosecution of the Rodingan Government implies that steps were taken toward
prosecution of the responsible persons.
III.

BRG. VASVODINA IS NOT GUILTY OF CRIMES AGAINST HUMANITY

UNDER ART. 7(1)(i) OF THE ROME STATUTE.

(15.) The AFD post March 2011 had declared thought the Internet its intention to fight for
establishment of a federal democracy in Rodinga following which AFD membership
increased exponentially and state units started working toward broadening support from the
masses. In December 2011, the AFD launched a series of attacks against government
buildings and installations in Sinsalu and Kambhatka in December 2011. They captured gold
mines of Samchatka and Tikalu (in Kambhatka) and coalmines of Rasinia and Kaluma (in
Sinsalu) as well as 50 personnel of the Rodingan paramilitary and almost 50 employees that
worked in these mines. Subsequently, communication links by International humanitarian
enforcement agency IHEA could not be established between the IHEA officials and the AFD.
However post Zawaluan involvement in the struggle, Brigadier Vasvodina informed the
visiting officials of the IHEA of the fate of the captured persons.
(16.) The perpetrator as per the elements of crime should have 1) (a) Arrested, detained, or
abducted one or more persons; or (b) Refused to acknowledge the arrest, detention or
abduction, or to give information on the fate or whereabouts of such person or persons, 2. (a)
Such arrest, detention or abduction was followed or accompanied by a refusal to

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acknowledge that deprivation of freedom or to give information on the fate or whereabouts of
such person or persons; or (b) Such refusal was preceded or accompanied by that deprivation
of freedom, 3. The perpetrator was aware that (a) Such arrest, detention or abduction would
be followed in the ordinary course of events by a refusal to acknowledge that deprivation of
freedom or to give information on the fate or whereabouts of such person or persons, or (b)
Such refusal was preceded or accompanied by that deprivation of freedom, 4. Such arrest,
detention or abduction was carried out by, or with the authorization, support or acquiescence
of, a State or a political organization, 5. Such refusal to acknowledge that deprivation of
freedom or to give information on the fate or whereabouts of such person or persons was
carried out by, or with the authorization or support of, such State or political organization, 6.
The perpetrator intended to remove such person or persons from the protection of the law for
a prolonged period of time, 7. The conduct was committed as part of a widespread or
systematic attack directed against a civilian population, 8. The perpetrator knew that the
conduct was part of or intended the conduct to be part of a widespread or systematic attack
directed against a civilian population.
(17.)

Article 2 of the International Convention for the protection of all persons from

Enforced Disappearance defines for the purposes of this Convention, "enforced

disappearance" as an arrest, detention, abduction or any other form of deprivation of liberty
by agents of the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of
liberty or by concealment of the fate or whereabouts of the disappeared person, which place
such a person outside the protection of the law. Article 5 of the convention further states that
the widespread or systematic practice of enforced disappearance constitutes a crime against
humanity as defined in applicable international law and shall attract the consequences
provided for under such applicable international law.

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(A.) The capturing of 50 civilians and 50 paramilitary personnel was not an enforced
disappearance but an attempted evacuation.
(18.) A reference to a few factual circumstances (as will be elaborated further) will show
that the there was a growing resentment for the Rodingan Government and their actions.
International and local media outcry, exponentially increasing membership and support for
AFD, subsequent threats against supporters of AFD by the Rodingan government and the
corresponding attacks upon the same like that on 15th January in Snowaliya village,
Zawaluan support of AFD sighting humanitarian commitment to protect innocent civilians.
(19.)

The intense extraction of natural resources from the states of Sinsalu and Kambhatka

undertaken by the Rodingan government caused widespread health and environmental

problems in these two states. The EFOR comprising of local intellectuals was actively
involved in awareness generation about the plights of these states. Prime Minister Radula,
post the December 2011 incident, had warned all fighters and supporters of the AFD about
the serious consequences of their rebellious attacks and subsequently on 15 January 2012, the
Rodingan army killed 50 AFD fighters and 5 civilians, claiming the civilians were active
supporters and collaborators of AFDs activities. The facts then go on to state that similar
kinds of events were reported from other parts of the country as well. The defense seeks to
draw attention to these circumstances to throw light on AFDs noble ideals to reform the
erstwhile corruption and mockery of the Rodingan democracy by establishing a federal
democracy. Thus on account of the relevant facts above discussed coupled with AFDs
compliance of aspect of Art.49, the Defense contends that the detainment was not an enforced
disappearance under Art. 7(1) (i) as charged but only an evacuation.
(B.) There was no refusal to acknowledge the detention, or to give information about the fate
or the whereabouts of such persons.

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(20.) The defense contends that although there was an initial failure of communication links
between the IHEA officials, this by itself does not imply a refusal to acknowledge the
detention or refusal to give information about the fate and whereabouts of such persons.
Sinsalu and Kambhatka formed more than 75% of the lush, green forest cover of Rodinga and
the mines of Rasinia, Kaluma, Samchatka and Tikalu were situated deep within these forests.
Most of the workers of the AFD had moved into these dense areas of forest. Communication
links could not be established between the IHEA officials and the AFD due to technical
difficulties arising due to the location of the AFD fighters within these forests. Therefore,
there was no refusal as such to acknowledge such detention.
(21.)

Post the evacuation, and within a few months, Brigadier Vasvodina at his first

meeting with IHEA visiting officials directly reported to them stating that captured
employees of coal and gold mines and paramilitary forces had voluntarily embraced the
ideals for which the AFD was fighting and were out in Rodinga to spread AFD ideals.
Brigadier Vasvodina on behalf of the AFD thus did not refuse acknowledgment of the fate of
such persons and cannot be charged with enforced disappearance because of the absence the
refusal of acknowledgement requirement.
IV.

BRG. VASVODINA IS NOT GUILTY OF WAR CRIMES UNDER ART. 8(2) (b)
(iv)

(22.) On the 10 May 2012, the AFD and Zawaluan force deployed personnel at the border of
Rekht city, in Sanrolia. Rekht is a city of industries, which were situated on the banks of the
river which was an important source of drinking water, and were heavily guarded by
Government forces. On 11 May 2012, the Rodingan Government stated its intent to provide
uninterrupted movement to the Zawaluan forces and AFD fighters, provided that they would
not attack the industries of Rekht, and indicated possible environmental catastrophe if said

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attacks occured. Brig.Vasvodina disregarded this and launched an attack on Rekht on the
morning of 12 May 2012, involving intense fighting with heavy arsenal from both sides,
which lead to the leakage of Agent X a dangerous chemical and damaged the ecology of
the surrounding environment, as well as causing the death of 100 people. According to the
elements of crime under Article.8 (2) (b) (iv), the perpetrator must have, 1. launched an
attack. 2. 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. 3.
known 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 suchan extent as to be clearly excessive in relation to the
concrete and direct overall military advantage anticipated. 4. That the conduct took place in
the context of and was associated with an international armed conflict. 5. been aware of
factual circumstances that established the existence of an armed conflict.
(A.) Vasvodina did not know that the attack would cause death, injury or damage of such an
extent as to be clearly excessive in relation to the concrete and direct overall military
advantage anticipated or attracted under the fourth element.
(23.) Elements of Crime11 defines a concrete and direct overall military advantage as " a
military advantage that is foreseeable by the perpetrator at the relevant time. Art.52(2) of
AP I defines a military advantage as follows:
In so far as objects are concerned, military objectives are limited to those objects which by
their nature, location, purpose or use make an effective contribution to military action and
11 Elements of Crime, 19, n.36.

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whose total or partial destruction, capture or neutralization, in the circumstances ruling at the
time, offers a definite military advantage.
(24.) Rekht was a city of industries situated on the banks of the river Sanrole, and although
all industries were closed due to lack of raw materials they were heavily guarded by
government forces, in order to protect them from falling into the hands of the adversary. The
central location of Rekht, navigational convenience of river Sanrole, the abandoned
industries, and the resultant infrastructural advantage that the government forces were heavily
guarding, were factors that indicated to Brig.Vasvodinas value judgement that there was a
concrete and direct overall military advantage to be gained by capturing Rekht city.
The question may also arise whether the prohibition formulated here is not already covered
by paragraph 4(a), which prohibits attacks not directed at a specific military objective. In fact,
areas of land between military objectives are not themselves military objectives. It must be
accepted that in open areas which are sparsely populated, such as forests, attacks may be
mounted against the whole of the area if it has been established that enemy armed forces are
present.. 12
(25.)Rekht, situated in the central state of Sanrolia, is also bordered by dense and lush forest
covered state of Kambhatka. Rekht is also heavily guarded by government forces. Owing to
this geographical location, it can be inferred that Rekht is a sparsely populated open area,
covered by forests, and thus an attack mounted against the whole area is justified as it has
been established that enemy armed forces are present.
(26.) Further, in its broad sense, military necessity means doing what is necessary to
achieve a war aim.13 The principle of military necessity acknowledges the potential for
unavoidable civilian death and injury ancillary to the conduct of legitimate military
12 Yves Sandoz, Christophe Swinarski, Bruno Zimmermann, eds, Commentary on the Additional Protocols of 8
June 1977 (Geneva: Martinus Nijhoff, 1987), 1973.

13 Dictionary of International Law of Armed Conflict, ed. ICRC, 1992.

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operations. However, this principle requires that destroying a particular military objective
will provide some type of advantage in weakening the enemy military forces. As evident
from the facts of the present case, heavily guarded nature of the industries imply that the
attack would result in a significant advantage to the AFD in destroying the military objective
by weakening the enemy government forces.
(27.)The following finding by the Nuremberg Tribunal in the United States v. List 14 case
provides some guidance in this respect:
Military necessity permits a belligerent, subject to the laws of war, to apply any amount and
kind of force to compel the complete submission of the enemy with the least possible
expenditure of time, life, and money. It permits the destruction of life of armed enemies and
other persons whose destruction is incidentally unavoidable by the armed conflicts of the
war; it allows the capturing of armed enemies and others of peculiar danger, but does not
permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust
to kill. The destruction of property to be lawful must be imperatively demanded by the
necessities of war. Destruction as an end in itself is a violation of international law. There
must be some reasonable connection between the destruction of property and the overcoming
of the enemy forces.
As reiterated, the industries were heavily guarded by government forces, and therefore, to
overcome such forces, the AFD would be permitted to apply any amount and kind of force,
and any consquential destruction of property is justified as a military necessity.
(B). The conduct was not part of an international armed conflict
(28.) The neighboring state of Zawalu, was called in for help by the AFD and obliging,
Zawalu declared war against Rodinga sighting its own humanitarian commitment to protect
the innocent civilians of Rodinga. Within a week, the Zawaluan forces under Col.Samwolia
wiped out Govt. forces with the active support of the AFD fighters. It is imperative to note
here that though the Zawaluan forces were functioning under their own command, they were
14 United States v List and ors; 7 LRTWC 1253, 18 January 1949.

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merely assisting the AFD fighters in their mission and never undertook a fight on their own.
The ICRC proposes the following definitions, which reflect the strong prevailing legal
opinion as also found in Common article 3 of Geneva conventions. International armed
conflicts exist whenever there is resort to armed force between two or more states and noninternational armed conflicts are protracted armed confrontations occurring between
governmental armed forces and the forces of one or more armed groups, or between such
groups arising on the territory of a State [party to the Geneva Conventions].
(29.)The armed conflict to which the underlying offence is closely related need be
international in character for the application of Art.8 (2) (iv) (b) of the Rome Statute.The
Appeal Judgment in Tadi further explained that there are three circumstances in which an
armed conflict may be considered to be international in nature: (1) the conflict takes place
between two or more states; (2) another state intervenes in an internal armed conflict through
its troops; or (3) some of the participants in an internal armed conflict act on behalf of
another state, which exerts a certain degree of control over their activities (collectively,
international armed conflict tests). For the third option, Tadi and its progeny apply three
different tests derived from the law of state responsibility to determine whether the degree of
control is sufficient to conclude that participants in an internal conflict were acting on behalf
of a state that is, to deem them de facto state organs (collectively, degree of control tests).
Each degree of control test is specifically pegged to the circumstances of the conflict. The
lack of a governing body of law in regard to humanitarian law, the court took recourse in
Tadi to the Draft articles on State Responsibility. Article 8 of the ILC Articles on State
Responsibility suggests three disjunctive standards for the attribution to a state of conduct of
private individuals: (1) whether the state has issued instructions to those persons, (2) whether
the state has directed the persons to do something, or (3) whether the state has exercised
control over those persons. According to the ILC, the instructions, direction or control must

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relate to the specific conduct that turns out to be in breach of international law.
(30.) Close scrutiny of the three standards shows that the first two are rather specific: the
issuance of instructions or the fact of directing persons or groups of persons to do something
involves ordering or commanding those persons to undertake a certain conduct. Here the two
tests can be easily applied for they indicate in a sufficiently clear manner the type of behavior
required of the state towards the persons or group of persons. In contrast, the third test is
rather loose. In the Nicaragua case15, the courts developed the effective control test. For
armed forces, militias or paramilitary units any organized and hierarchically structured
group the Tadi Appeals Chamber disagreed16 with the high standard of effective control
set by the International Court of Justice in the Nicaragua case, and held that it is sufficient to
establish the overall character of the control by the state, by proving that it (1) financed,
equipped, trained, or provided operational support to the group, and (2) coordinated, directed,
or assisted in the general planning of the groups military activities.17
(31.)As per the particular facts of the case at hand, however the involvement of Zawaluan
forces extended from May 2012 and UN communication up to the deployment of personnel
on the border of Rekht city. But the Zawaluan forces themselves did not partake in the attack
launched in Rekht City on the early morning of 12 May 2012. Zawaluan forces were
15 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), 1986, I.C.J,
(June 27, 1986).

16 Prosecutor V. Duko Tadi, IT-94-1-A, Appeals Judgement, 15 July 1999, 115. ICTY.

17 Ibid. 137

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functioning under their own command, merely assisting the AFD fighters in their mission and
never undertook a fight on their own. In regard to this specific conduct, no financial, training
or operational support was given nor was there any evidence of Zawalu's express direction,
coordination or assistance in groups military activities. The facts expressly mention that it
was only Brigadier Vasvodina's forces that disregarded Rodingan warning of supposed
probable environmental catastrophe and not Zawaluan forces. Thus, the armed conflict is not
of international character as the final element of the charge under Art.8 (2) (b) (iv) is not
satisfied.
PRAYER
Wherefore in light of the questions presented, arguments advanced and authorities cited, the
Defense respectfully requests this Court to adjudge and declare that:
I.

Brg. Zachesu be found not guilty of crimes against humanity under Article 7(1)(a) and

II.

all charges dismissed.

Brg. Zachesu be found not guilty of war crimes under Article 8(2) (c) (i) and and all

III.

charges dismissed.
Brg. Vasvodina be found not guilty of crimes against humanity under Article 7()(i)

IV.

and all charges dismissed.

Brg. Vasvodina be found guilty of war crimes under Article 8(2) (b) (iv) and all
charges dismissed.

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