3 Defense

Prosecutor v. Tony Gusman

October 2016

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Table of Contents
I.
II.
III.

STATEMENT OF FACTS .....6

PRELIMINARY MATTERS .8
A. NATURE OF ARMED CONFLICT 8
SUMMARY OF PLEADINGS ......... 9
A. ADMIRAL GUSMAN BEARS NO CRIMINAL RESPONSIBILITY FOR THE
WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD OF
WARFARE .9
B. ADMIRAL GUSMAN BEARS NO CRIMINALLY RESPONSIBILITY FOR THE
WAR CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST THE
CIVILIAN POPULATION OR AGAINST INDIVIDUAL CIVILIANS NOT
TAKING DIRECT PART IN HOSTILITIES ON THE BASIS OF COMMAND
RESPONSIBILTY ....10
C. ADMIRAL GUSMAN BEARS NO CRIMINAL RESPONSIBILITY FOR THE
WAR CRIME OF INTENTIONALLY LAUNCHING AN ATTACK CAUSING
WIDESPREAD, LONG-TERM, AND SEVERE DAMAGE TO THE NATURAL

IV.

ENVIRONMENT . 10
PLEADINGS ... 11
A. ADMIRAL GUSMAN BEARS NO INDIVIDUAL CRIMINAL RESPONSIBILITY
FOR THE WAR CRIME OF INTETNTIONALLY USING STARVATION AS A
METHOD OF WARFARE .11
A.1. ADMIRAL GUSMAN DID NOT INTEND TO STARVE CIVILIANS AS A
METHOD OF WARFARE ...... 11
A.2. THE CONDUCT DID NOT TAKE PLACE IN THE CONTEXT OF AND
WAS NOT ASSOCIATED WITH AN INTERNATIONAL ARMED
CONFLICT13

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A.3. ADMIRAL GUSMAN BEARS NO INDIVIDUAL CRIMINAL

RESPONSIBILITY UNDER ARTICLE 25(3)(A) .. 13
B. ADMIRAL GUSMAN BEARS NO CRIMINALLY RESPONSIBILITY FOR THE
WAR CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST THE
CIVILIAN POPULATION OR AGAINST INDIVIDUAL CIVILIANS NOT
TAKING DIRECT PART IN HOSTILITIES ON THE BASIS OF COMMAND
RESPONSIBILTY...13
B.1. THE OBJECT OF THE ATTACK WAS A CIVILIAN POPULATION TAKING
DIRECT PARTICIPATION IN THE
HOSTILITIES14
B.2. COMMANDER HANSON DID NOT INTEND THE CIVILIANS
BOARDING NIRVANA TO BE THE OBJECT OF AN ATTACK ...15
B.3. THE CONDUCT DID NOT TAKE PLACE IN THE CONTEXT OF AND WAS
NOT ASSOCIATED WITH AN INTERNATIONAL ARMED
CONFLICT16
B.4. ADMIRAL GUSMAN CANNOT BE HELD LIABLE ON THE BASIS OF
COMMAND RESPONSIBILITY......... 16
C. ADMIRAL GUSMAN BEARS NO CRIMINAL RESPONSIBILITY FOR THE
WAR CRIME OF INTENTIONALLY LAUNCHING AN ATTACK CAUSING
WIDESPREAD, LONG-TERM, AND SEVERE DAMAGE TO THE NATURAL
ENVIRONMENT.......17
C.1. ADMIRAL GUSMAN DID NOT LAUNCHED THE ATTACK . 18

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C.2. THE ATTACK DID NOT CAUSE SEVERE DAMAGE TO THE NATURAL
ENVIRONMENT. 19
C.3. ADMIRAL GUSMAN IS NOT CRIMINALLY RESPONSIBLE AS AN
INDIVIDUAL BY ORDERING, SOLICITING OR INDUCING THE
COMMISSION OF SUCH A CRIME WHICH IN FACT OCCURS OR IS
ATTEMPTED . 20
V.

PRAYER 21

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Index of Authorities
STATUTES
Article 96 para. 3 Additional Protocol I. 8, 9, 13, 16
Art 1, par 4 Additional Protocol I . 8
Article 8 (2)(b)(xxv), Rome Statute ................ 11
Article 30, Rome Statute . 11
Article 25 (3)(a) Rome Statute 13
Article 25 (3)(b), Rome Statute ... 20
Article 28 (a) (i) Rome Statute ................ 16
ICC RULINGS
Prosecutor v Mbarushimana .....................................................14
Prosecutor v. Katanga and Chui 15
Prosecutor v. Bahar Idriss Abu Garda.............................................. 18
ICTY RULINGS
Prosecutor v. Tadic 8, 9, 13, 16
Prosecutor v Boskoski and Tarculovski . 8
Prosecutor v Blaskic 15
Prosecutor v. Mucic . 16
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I.

STATEMENT OF FACTS
The Republic of Astro, the Kingdom of Casa and the Republic of Bereto are bordering

the Middle Sea. The Yukule Archipelago lies at about 750 kilometres east of Bereto, 300
kilometres south of Casa and 100 kilometres from Astros west coast. The Yukule Archipelago
was under Bereton control, although it enjoyed complete autonomy in managing its internal
affairs.
On 4th February 2008, the Astron Armed Forces invaded Yukule. A Military
Administration was established to govern the Archipelago directly under the supervision of the
Crisis Military Commission headed by Admiral Tony Gusman. However, the inhabitants and the
remaining members of the Bereton armed and police forces on the island formed a resistance
militia, led by Colonel Spartan from the Bereton army.
Facing an increasingly volatile situation, on 1st July 2008, the Military Administration
established check-points in key areas of the island. Restraints were also imposed on the flow of
goods in and out of Yukule. Anti-Astro attacks were, however, still on rise. On 1st September
2008 the Military Administration announced that all foreign ships entering a Maritime Control
Zone defined as the area within 24 nautical miles from the Yukule Island coastline had to
request prior authorization from the Military Administration. The Military Administration also
limited the activities of local fishermen to 6 nautical miles offshore.
Control over the importation of goods was tightened. Importation of construction
materials, metal objects, and a range of chemicals was curtailed and strictly scrutinized for the
Administrations alleged fear of possible use by the armed militia.
On 1st July 2010, Nirvana left a Bereton port for Yukule to deliver food, medicine and
basic necessities. Nirvana was boarded by 30 Sphinx and 200 passengers who are members of
the Movement and some human rights activists and anti-Astro protestors recruited through the
internet. Before Nirvana reached the Maritime Zone, it was warned not to proceed unless its
cargo is inspected and its passengers controlled by the Astro marines. Despite the warning,
Nirvana proceeded to enter the Maritime Zone. The Astron marines attempted to board and seize
Nirvana but the activists and the members of Sphinx committed violent acts against them.
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Following the post-Nirvana demonstrations and the weakening of Astros government,

the Bereton government decided to recapture Yukule. On 25th August 2010, a Bereton naval task
force set sail for Yukule. On 17th September, Bereto launched an intensive air campaign against
the Astron land and naval forces in Yukule, while the Bereton navy engaged Astron navy on the
high seas.
On 24th September 2010, Captain Ardent, after consulting Rear Admiral Freedman,
ordered to open the valves of three oil terminals on the western side of the island. Three oil
tankers also started to discharge oil into the same sea area.
On 16th October 2010, Admiral Gusman told Captain Ardent to take all measures
possible to stop the advancement of the Bereton forces. On the same day, large oil storage tanks
on a site by the sea near Port Solferino burst into huge fires. Astron soldiers in Yukule retreated
to the mainland.
Dr Sulivan from the Casan Meteorology and Environmental Protection Administration
assured the public that the damage to the marine environment in the region was not
devastating.
At the end of 2010, the Ayana government was discredited by the failure in Yukule and
eventually had to step down. Following the election of a new government, Admiral Gusman was
placed under house arrest for suspected crimes committed against the Astron people. In May
2011, Astro and Bereto agreed to jointly refer the situation between 1 January 2008 and 31
December 2010 to of Yukule to the International Criminal Court.

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II.

PRELIMINARY MATTERS
A. NATURE OF ARMED CONFLICT
There was no armed conflict for the period of February 2008 to 24 August 2010 in
Yukele. Armed conflict occurs whenever there is a resort to armed force between States
or protracted armed violence between governmental authorities and organized armed
groups or between such groups within a State. 1 The parties to the conflict are the Military
Administration of Astro and the resistance militia of Yukele. 2 Although Astro is a state,
the resistance militia is not classified as a State nor an organized armed group. The
existence of command structure and internal rules, the ability to recruit new
combatants and undertake organized military operations, and issuance of political
statements are indicators of organization. 3 There are no indications that there is a
command structure aside from Colonel Spartans leadership, that there are internal rules,
that they have the ability to recruit new combatants, to undertake organized military
operations and to issue political statements.
The conflict in Yukele cannot also be considered an international armed conflict
under wars of liberation because the resistance militia failed to comply with the
mechanism whereby national liberation movements can agree to apply, and be bound by,
International Humanitarian Law.4 International armed conflict may include armed
conflicts in which peoples are fighting against colonial domination and alien occupation
and against racist regimes in the exercise of their right of self-determination, as enshrined
in the Charter of the United Nations and the Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations.5 However, the authority representing a people engaged
against a High Contracting Party in an armed conflict of the type referred to in Article 1,

1 Prosecutor vs. Dusko Tadic

2 Facts, para. 7.
3 Boskoski & Tarculovski, Trial Chamber II, IT-04-82-T (10Jul2008) paras.194-206.
4 Article 96 para. 3 Additional Protocol I

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paragraph 4 of Additional Protocol I, may undertake to apply the Conventions and said
Protocol in relation to that conflict by means of a unilateral declaration addressed to the
depositary. 6 The resistance militia did not make such unilateral declaration.
But for the period of August to December 2010, there was an international armed
conflict between the Military Administration of Astro and the Republic of Bereto.
International Armed conflict exists when there is a resort to armed force between two
States.7 On 25th August 2010, a Bereton naval task force set sail to recapture Yukele. On
17th September, Bereto launched an intensive air campaign against the Astron land and
naval forces in Yukule, while the Bereton navy engaged Astron navy on the high seas.8
III.

SUMMARY OF PLEADINGS
A. ADMIRAL GUSMAN BEARS NO CRIMINAL RESPONSIBILITY FOR THE
WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD
OF WARFARE.
Admiral Gusman did not intend to starve civilians as a method of warfare. The
purpose of the import and fishing control measures is not to starve the civilians but to
minimize the attack by the resistance militia on both soldiers and civilians by preventing
the importation of weapons and explosive devices to Yukele. In relation to the
consequences, Admiral Gusman did not mean to cause such consequence. Furthermore,
the conduct did not take place in the context of and was associated with an international
armed conflict.
B. ADMIRAL GUSMAN BEARS NO CRIMINAL RESPONSIBILITY FOR THE
WAR CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST THE
CIVILIAN POPULATION OR AGAINST INDIVIDUAL CIVILIANS NOT

5 Art 1, par 4 Additional Protocol I

6 Article 96 para. 3 Additional Protocol I
7 Prosecutor v. Tadic, par. 70
8 Facts, para. 35.

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TAKING DIRECT PART IN HOSTILITIES ON THE BASIS OF COMMAND

RESPONSIBILTY
The civilians boarding Nirvana lost their protection when they took direct part in
hostilities by committing acts of violence against the Astron. Commander Hanson did not
intend the civilians boarding the Nirvana to be the object of an attack. The order of
Commander Hanson to open fire is an act of self-defense. Admiral Gusman and
Commander Hanson had no knowledge that the people boarding Nirvana are civilians.
Furthermore, the conduct did not take place in the context of and was associated with an
international armed conflict.
C. ADMIRAL GUSMAN BEARS NO CRIMINAL RESPONSIBILITY FOR THE
WAR CRIME OF INTENTIONALLY LAUNCHING AN ATTACK CAUSING
WIDESPREAD, LONG-TERM, AND SEVERE DAMAGE TO THE NATURAL
ENVIRONMENT
It was not sufficiently established that Admiral Gusman ordered to set the large oil
tanks on fire. The accused cannot be held responsible for the burning of the large oil
storage tanks on the basis of his vague remarks and orders. Similarly, it was not
established in the facts that Admiral Gusman ordered to open the valves of three oil
terminals on the western side of the island. There is no causal link between Admiral
Gusmans vague order to Rear Admiral Freedman and the oils spills. Assuming arguendo
Admiral Gusmans ordered the attack with respect to the oil spills, still he cannot be held
criminally liable because the attack did not cause severe damage to the natural
environment.

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IV.

PLEADINGS
A. ADMIRAL

GUSMAN

BEARS

NO

INDIVIDUAL

CRIMINAL

RESPONSIBILITY FOR THE WAR CRIME OF INTETNTIONALLY USING

STARVATION AS A METHOD OF WARFARE.
Not all of the requisite elements in the war crime of starvation as a method of
warfare under Article 8(2)(b)(xxv) are present in this case. For a person to be criminally
liable under Article 8(2)(b)(xxv), the following elements must concur: (i) the perpetrator
deprived civilians of objects indispensable to their survival; (ii) the perpetrator intended
to starve civilians as a method of warfare; (iii) the conduct took place in the context of
and was associated with an international armed conflict; and (iv) the perpetrator was
aware of factual circumstances that established the existence of an armed conflict. In this
case, the second and third elements are lacking.
A.1. ADMIRAL GUSMAN DID NOT INTEND TO STARVE CIVILIANS AS A METHOD
OF WARFARE
The Statute indicates that the use of starvation as a method of warfare has to be
intentional.9 A person has intent where: (a) In relation to conduct, that person means to
engage in the conduct; and (b) In relation to a consequence, that person means to cause
that consequence or is aware that it will occur in the ordinary course of events.10
Admiral Gusman did not mean to engage in an act of starving the civilians. The
purpose of the import and fishing control measures is not to starve the civilians but rather
to minimize the attack by the resistance militia on both soldiers and civilians by
preventing the importation of weapons and explosive devices to Yukele.
Particularly, the goods that the Government curtailed and strictly scrutinized are
only those items that may be used by the resistance militia to create improvised weapons

9 Article 8(2)(b)(xxv), Rome Statute

10 Ibid, Article 30

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and explosives. Admiral Gusman actually allowed the import of other goods as long as
they are exclusively used for civilian purposes.11
In relation to the consequences, Admiral Gusman did not mean to cause such
consequence or was aware that they will occur in the ordinary course of events. Such
consequences are merely incidental effects of the security measures implemented by the Military
Administration. They were not also solely due to the control measures implemented by Admiral
Gusman but also due to the poor means of transporting goods to the different parts of the island
as a result of the damages to the road caused by the roadside bombs laid by the militias.12
A.2. THE CONDUCT DID NOT TAKE PLACE IN THE CONTEXT OF AND WAS NOT
ASSOCIATED WITH AN INTERNATIONAL ARMED CONFLICT
International Armed conflict exists when there is a resort to armed force between two States. 13
Astron is a State but the resistance militia in Yukele is a non-state group. The conflict in Yukele
cannot also be considered an international armed conflict under wars of liberation because the
resistance militia failed to comply with the mechanism whereby national liberation movements
can agree to apply, and be bound by, International Humanitarian Law. 14
A.3. ADMIRAL GUSMAN BEARS NO INDIVIDUAL CRIMINAL RESPONSIBILITY
UNDER ARTICLE 25(3)(A)
A person may be held individually liable under Article 25 (3)(a) if he commits a crime, whether
as an individual, jointly with another or through another person, regardless of whether that other
person is criminally responsible.15 Admiral Gusman cannot be held individually liable under
Article 25 (3)(a) because he did not commit any crime.
11 Ibid, para. 11.
12 Facts, para.13.
13 Prosecutor v. Tadic, par. 70
14 Article 96 para. 3 Additional Protocol I
15 Article 25 (3)(a) Rome Statute

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B. ADMIRAL GUSMAN BEARS NO CRIMINAL RESPONSIBILITY FOR THE

WAR CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST THE
CIVILIAN POPULATION OR AGAINST INDIVIDUAL CIVILIANS NOT
TAKING DIRECT PART IN HOSTILITIES ON THE BASIS OF COMMAND
RESPONSIBILTY
Not all the elements of directing attack against those not taking direct part in the
hostilities in Article 8(2)(b)(i) of the Rome Statute are present in the case. The are: (i) the
perpetrator directed an attack; (ii) the object of the attack was a civilian population as
such or individual civilians not taking direct part in hostilities; (iii) the perpetrator
intended the civilian population as such or individual civilians not taking direct part in
hostilities to be the object of the attack; (iv) he conduct took place in the context of and
was associated with an international armed conflict; and (v) he perpetrator was aware of
factual circumstances that established the existence of an armed conflict. The second,
third and fourth elements are not present in this case.
B.1. THE OBJECT OF THE ATTACK WAS A CIVILIAN POPULATION TAKING
DIRECT PARTICIPATION IN THE HOSTILITIES
Civilians are protected against attacks, unless and for such time as they directly
participate in hostilities. As highlighted in the Abu Garda Confirmation Decision, there is no
customary or treaty law definition of what constitutes direct participation in hostilities, although
useful guidance is provided by the International Committee of the Red Cross. However, loss of
protection is clear when a civilian uses weapons or other means to commit violence against
human or material enemy forces, unless in self-defence. Further, practice indicates that supplying
food and shelter and sympathising with one belligerent party is an insufficient reason to deny
civilians protection against attack.
The term "civilian" in accordance with article 50(1) of the AP I, applies to anyone who is
not a combatant, and in case of doubt, the person shall be considered to be a civilian.
Additionally, a civilian population comprises all civilians as opposed to members of armed
forces and any other legitimate combatants. Further, pursuant to article 50(3) of the AP I, the
presence within the civilian population of individuals who do not fit within the definition of
civilians does not deprive the entire population of its civilian character. Yet, civilians may lose
protection only for such a time as they take direct part in hostilities or combat-related activities
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and not permanently. Further, the protection does not cease if such persons only use armed force
in the exercise of their right to self-defence."16
It was stated in the facts that the commando encountered strong resistance from the
Sphinx guards and passengers when they tried to board and seize Nirvana for violating the
Maritime Control Zone.
B.2. COMMANDER HANSON DID NOT INTEND THE CIVILIANS BOARDING
NIRVANA TO BE THE OBJECT OF AN ATTACK.
As regards the subjective elements, in addition to the standard mens rea
requirement provided in article 30 of the Statute, the perpetrator must intend to make
individual civilians the object of the attack. This offence therefore, encompasses dolus
directus of the first degree.17 Commander Hanson did not intend the civilians boarding
the Nirvana as such to be the object of an attack. The order of Commander Hanson to
open fire is an act of self-defense as it can be seen from the facts that the Sphinx guards
first fired a few shots to stop the commando from advancing.
Trial Chamber in the Blaki case held in relation to the charge of attacks directed
against civilians, that: "Such an attack must have been conducted intentionally in the
knowledge, or when it was impossible not to know, that civilians [...] were being
targeted."18 In this case, Admiral Gusman and Commander Hanson has no knowledge that
the people boarding Nirvana are civilians. It was stated in the facts that the Free Yukele
Movement was led by the Bereton NGO Sacred Fighters, whose chairman was Mr
Jonas Borman. Sacred Fighters was listed by several countries as a terrorist group. 19
Terrorist groups are directly participating in direct hostilities; hence they should not be
regarded as civilians. Also, the presence of the Sphinx, who were former Bereton
soldiers, in the Nirvana made the Astron Marines believe that the vessel is not boarded by
16 ICC, Mbarushimana Decision on the Confirmation of Charges 16 December 2011 , para. 148.
17 Prosecutor v. Katanga and Chui, 271.
18 ICTY, Blaskic, Trial Judgment, 3 March 2000, para. 180.
19 Facts, para. 20.

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civilian population.20 This belief was further established when the Sphinx guards fired
against the Astron Marines. This cast more doubt on the civilian character of the vessel in
the mind of Admiral Gusman.
B.3. THE CONDUCT DID NOT TAKE PLACE IN THE CONTEXT OF AND WAS NOT
ASSOCIATED WITH AN INTERNATIONAL ARMED CONFLICT
International Armed conflict exists when there is a resort to armed force between two States. 21
Astron is a State but the resistance militia in Yukele is a non-state group. The conflict in Yukele
cannot also be considered an international armed conflict under wars of liberation because the
resistance militia failed to comply with the mechanism whereby national liberation movements
can agree to apply, and be bound by, International Humanitarian Law. 22
B.4. ADMIRAL GUSMAN CANNOT BE HELD LIABLE ON THE BASIS OF
COMMAND RESPONSIBILITY.
Assuming arguendo that the crime was committed, Admiral Gusman cannot be
held criminally responsible on the basis of command responsibility. The elements of the
doctrine of superior responsibility consists of three major parts; (1) the existence of a
superior-subordinate relationship, (2) the subjective element (mens rea), and (3) the
failure to prevent and punish. 23 in this case, the second and third elements are lacking.
With respect to the subjective element, that military commander or person should
either knew or, owing to the circumstances at the time, should have known that the forces
were committing or about to commit such crimes 24. Assuming that the crime has been
20 Ibid, para. 22.
21 Prosecutor v. Tadic, par. 70
22 Article 96 para. 3 Additional Protocol I
23 Prosecutor v. Mucic et al., ICTY T. Ch., 16 November 1998, pg. 346
24 Article 28 (a) (i) Rome Statute

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committed, Admiral Gusman cannot be held liable because he didnt know that the
marines fired on the Nirvana.
On the third element, the military commander or person should have 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.25 Admiral Gusman cannot be held liable because he submitted the matter to
the competent authorities for investigation and prosecution. In August 2010, Astro
conducted an inquiry on Operation Blue. Commander Hanson attended the inquiry and
pleaded self-defense in ordering to open fire.26
C. ADMIRAL GUSMAN BEARS NO CRIMINAL RESPONSIBILITY FOR THE
WAR CRIME OF INTENTIONALLY LAUNCHING AN ATTACK CAUSING
WIDESPREAD, LONG-TERM, AND SEVERE DAMAGE TO THE NATURAL
ENVIRONMENT
Not all the elements of the war crime of intentionally launching an attack in the
knowledge that such attack will cause widespread, long-term and severe damage to the
natural environment, under Article 8(2)(b)(iv) are present in the case. For a person to be
liable of the crime under Article 8(2)(b)(iv), the following elements must concur: (i) the
perpetrator launched an attack; (ii) the attack was such that it would cause widespread,
long-term and severe damage to the natural environment and that such damage would be
of such an extent as to be clearly excessive in relation to the concrete and direct overall
military advantage anticipated; (iii) the perpetrator knew that the attack would cause
incidental 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; (iv) the conduct
took place in the context of and was associated with an international armed conflict; and
(v) the perpetrator was aware of factual circumstances that established the existence of an
armed conflict. In this case, the first and second elements are not present.
25 Facts, Article 28 (a) (ii)
26 Ibid, para. 31.

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C.1. ADMIRAL GUSMAN DID NOT LAUNCH THE ATTACK

As regards the first element, it is necessary that the perpetrator launched an attack. The
requirement that the perpetrator directed the attack indicates that, for this particular crime, a
causal link between the perpetrators conduct and the consequence is necessary, so that the
concrete consequence, the attack in this case, can be seen as having beencaused by the
perpetrator.27
It was not sufficiently established that Admiral Gusman ordered to set the large oil tanks
on a site by the sea. Admiral Gusman told Captain Ardent to take all measures possible to stop
the advancement of the Bereton forces. On the same day, large oil storage tanks on a site by the
sea near Port Solferino burst into huge fire. Even though the large oil storage tanks were set on
fire on the same day Admiral Gusman made his remarks in Hashtag Daily and his order to
Captain Ardent, there is no causal link between those remarks and the burning of the large oil
storage tanks. Admiral Gusman did not expressly order that the large oil storage tanks be set on
fire. The accused cannot be held responsible for the burning of the large oil storage tanks on the
basis of his vague remarks and orders.
Similarly, it was not sufficiently established that Admiral Gusman ordered to open the
valves of three oil terminals on the western side of the island. Captain Ardent, after consulting
Rear Admiral Freedman, ordered to open the valves of three oil terminals on the western side of
the island, while Astros ships moved eastward towards the Astron coast. Three oil tankers also
started to discharge oil into the same sea area. 28 Based on the facts it was Captain Ardent, after
consulting Rear Admiral Freedman, who ordered the opening of the valves of three oil terminals.
Admiral Gusman never gave an order nor consented to the said act. There is no causal link
between Admiral Gusmans vague order to Rear Admiral Freedman and the oils spills.
C.2. THE ATTACK DID NOT CAUSE SEVERE DAMAGE TO THE NATURAL
ENVIRONMENT.
Assuming arguendo Admiral Gusmans ordered the attack with respect to the oil
spills, still he cannot be held criminally liable because the attack did not cause severe
27 The Prosecutor v. Bahar Idriss Abu Garda, 66-67.
28 Ibid, para. 37.

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damage to the natural environment. To be criminally liable under Article 8(2)(b)(iv), it is

necessary that the attack was such that it would cause widespread, long-term and severe
damage to the natural environment and that such damage would be of such an extent as to
be clearly excessive in relation to the concrete and direct overall military advantage
anticipated. These elements were not established sufficiently.
Dr. Sulivan from the Casan Meteorology and Environmental Protection
Administration assured the public that the damage to the marine environment in the
region was not devastating.29 In the two-way analysis of variance between those oiled
and non-oiled reefs off Yukulean coastline showed no significant differences for either
species or families.30
C.3.

ADMIRAL GUSMAN IS NOT CRIMINALLY RESPONSIBLE AS AN

INDIVIDUAL BY ORDERING, SOLICITING OR INDUCING THE COMMISSION OF

SUCH A CRIME WHICH IN FACT OCCURS OR IS ATTEMPTED
Assuming arguendo that the crime was committed, Admiral Gusman cannot be held individually
responsible under Article 25(3)(b).
To be held individually responsible, one must order, solicit or induce the commission of
such a crime which in fact occurs or is attempted. 31 It was not established that Admiral Gusman
actually ordered, solicited or induced the opening of the valves of the three oil terminals and the
burning of the large oil storage tanks.

29 Ibid, para. 42.

30 Ibid, para. 43.
31 Article 25 (3)(b), Rome Statute

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PRAYER FOR RELIEF

It is respectfully prayed for the ICC not to confirm the respective charges against Admiral
Admiral Gusman.
Respectfully submitted,
The Defense

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