17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

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 as follows-
The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this
Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.

And Softland is party to The ICC Statute.1

The Defence is not contending the jurisdiction of this Honble Court.

1
1, Page 10, Moot Proposition.

[i]
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

PLEADINGS

I. MR. SENGOTA IS NOT GUILTY OF COMMITTING THE WAR CRIME

UNDER ARTICLE 8(2) (e) (iv) OF THE STATUTE OF THE INTERNATIONAL

CRIMINAL COURT FOR THE ACTS COMMITTED ON 20 MAY 2016

A. Mr. Sengota had never intended to harm the Kimochi-Toramis

It is most respectfully submitted before this Honble Court that, Mr. Sengota never
intended to cause harm to the Kimochi Toramis rather he was of the view that the
conflict must be resolved amicably. The prosecutor has no direct or circumstantial
evidence to show that Mr. Sengota has intended the destruction of Kimochi Toramis.

Further it is submitted that, in terms of the requisite mental element (mens rea) of the
offence, the attack in question must be committed with intent and knowledge 2,the
latter meaning awareness that a circumstance exists3.That is, the accused must
intentionally4(or, synonymously, wilfully)5direct an attack against the relevant object
in the knowledge that it is cultural property6 in the broad sense of the term and since
it has been comprehensively proved above that Mr. Sengota did not direct the attack,
hence lacking the intent to cause the said destruction.

In furtherance to support the above argument, it most humbly submitted before the
Honble Court that, the Rome Statutes definition of intent in relation to conduct is
that the accused means to engage in the conduct7. The accuseds intent and
knowledge can be inferred from relevant facts and circumstances8. Mr. Sengota has

2
Rome Statute Art 30(1).
3
Rome Statute Art 30(3) and Blaki Trial (International Criminal Tribunal for the Former Yugoslavia, Trial
Chamber, Case No. IT-95-14-T, 3 March 2000.
4
Supra at 9; Rome Statute arts 8(2)(b)(ix), 8(2)(e)(iv).
5
Prosecutor v. Pavle Strugar (Trial Judgment), IT-01-42-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 31 January 2005.
6
Ibid.
7
Rome Statute Art 30(2)(a).
8
Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International Criminal Tribunal for the former
Yugoslavia (ICTY), 15 July 1999.

Memorial For The Defendant

1
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

always respected the sentiments of Kumis9 and even expressed his regrets for the
destruction10. These facts and circumstances show that Mr. Sengota lacks the required
knowledge to commit such a crime.

Moreover, it is submitted before this Honble Court that the Respondent neither had
any knowledge or intent to commit such an immoral act when he himself was a
religious devotee. He even engaged with the Kumis to arrive at an amicable solution,
this shows his modus operandi that he believes in cooperative arrangement11 rather
than a coercive action. Mere evading answering a question asked by the media should
not be interpreted as his acquiescence to the crime as it wouldnt have been
professional on his part to give his opinion without any investigation. Hence charging
the Respondent with such a heinous crime shows a gross miscarriage of justice.

B. Mr. Sengota never directed the attack on the two Kimochi-Toramis

It is most humbly submitted before the Honble Court that the events on 20th May 2016

which led to the destruction of the two Kimochi-Toramis by the attackers, claiming to be

cultural security guards, were not under the directions or instructions of Mr. Sengota. Mr.

Sengota never approved of the attacks either implicitly or explicitly in any of his

statements to the media but rather expressed his regrets to the Kumi people for their

loss.12

Furthermore, in the case of Prosecutor v. Tihomir Blaskic13, it was observed that to show

the destruction or willful damage to institutions dedicated to religion or education, the

damage or destruction must have been committed intentionally to institutions which may

clearly be identified as dedicated to religion or education.

9
3, Page 6, Moot Proposition.
10
Ibid.
11
Ibid.
12
3, Page 7, Moot Proposition.
13
Prosecutor v. Tihomir Blaskic (Trial Judgement), IT-95-14-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 3 March 2000.

Memorial For The Defendant

2
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

It is most respectfully submitted that the attacks have been carried out by a group of

people claiming to be cultural security guards formed by Mr. Sengota14. The identity of

these attackers is not revealed in any of the released media reports or any other authentic

sources which could even prove that they were cultural security guards. It is their own

admittance that they were performing the duty entrusted to them by Mr. Sengota 15, to

which the Respondent had not once conceded in any of his speeches or statements given

to the media.

Furthermore, they have also stated that their acts should not be considered to be ordained

by any individual or any person but should be considered as ordained by God 16. This

shows that Mr. Sengota was never involved in the attacks that were carried out on the two

Kimochi-Toramis let alone the allegation that he directed the attacks on the respected

sites. In light of these contentions, it is most respectfully submitted that the charges levied

against Mr. Sengota are unmerited and baseless.

C. The attack was not associated with the armed conflict between the MMR and
Softland Government Forces

It is most respectfully submitted to the Honble Court that the attack on the two Kimochi-

Toramis was carried out by an unidentified group of people, claiming to be working

under the orders of Mr. Sengota, had no association with the newly established

government of Mayavar land. This Honble Court has observed in a previous case that in

order to determine whether the attacks are associated with an armed conflict the Trial

Chamber may take into account factors including: the status of the perpetrator and victim;

14
2, Page 7, Moot Proposition.
15
Ibid.
16
Ibid.

Memorial For The Defendant

3
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

whether the act may be said to serve the ultimate goal of a military campaign; and

whether the crime is committed as part of, or in the context of, the perpetrators official

duties.17

In the present case, the status of Mr. Sengota is that of the head of Culture Department18.

The status and responsibilities of the accused is not of a military nature. Furthermore, the

destruction of Kimochi-Toramis was not the ultimate goal of the military campaign

launched by the MMR group. Moreover, the official duties of Mr. Sengota connote only

to his position of being the head of the Culture Department. Hence, the attacks cannot be

said to have been committed as part of or in the context of Mr. Sengotas official duties.

In light of the arguments presented above, it is humbly submitted before the Honble

Court that the attacks which were carried out on the two Kimochi-Toramis were not

associated with the armed conflict between the MMR forces and the Softland government

forces.

D. The attack on the two Kimochi-Toramis is not part of a protracted armed conflict

It is most respectfully submitted to the Honble Court that Article 8(2)(f) of the Rome

Statute states: Paragraph 2 (e) applies to armed conflicts not of an international character

and thus does not apply to situations of internal disturbances and tensions, such as riots,

isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed

conflicts that take place in the territory of a State when there is protracted armed conflict

17
Prosecutor v. Jean-Pierre Bemba Gombo (ICC-01/05-01/08-2138), Trial Chamber, 22 Feb. 2012, 142-144.
18
1, Page 6, Moot Proposition.

Memorial For The Defendant

4
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

between governmental authorities and organized armed groups or between such

groups.19

It is most respectfully submitted that in the present case, the armed conflict between the

Softland government forces and MMR ended in April 2016 after the retreat of the

Softland government forces20. Thereafter, the MMR gained control of the territory and

started taking part in regulating the governance which is apparent from the acts like

instituting a President of the territory (Mayavar Land) and forming a team of twenty

people for the purpose of governance21. Therefore, the absence of protracted armed

conflict during the attack on the two Kimochi-toramis is quite evident from the factual

circumstances. Henceforth, in these respects the attack could more correctly be termed as

an attack resembling internal disturbances and tensions, such as riots, isolated and

sporadic acts of violence or other acts of a similar nature.

In light of the above arguments, it is submitted that the attack on the two Kimochi-

Toramis was not part of the armed conflict between the Softland government forces and

the MMR and thus lacks the basic requirement for the application of Article 8(2)(e) of the

Rome Statute rendering the matter to be a domestic dispute and out of the jurisdiction of

the present Honble Court.

19
Article 8(2)(f), Statute of International Criminal Court, 1998.
20
1, Page 6, Moot Proposition.
21
Ibid.

Memorial For The Defendant

5
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

E. Mr. Sengota cannot be held responsible as per the principle of superior-subordinate

relationship

It is most respectfully submitted to the Honble Court that a superior can be held
criminally responsible only if some specific information was in fact available to him
which would provide notice of offences committed by his subordinates. A superior can
only be held responsible if two conditions are met, namely subordinates have committed
such breaches and the superior had a duty to act in regard of these breaches22. In
furtherance to the two conditions the involvement of Mr. Sengota in the destruction of the
property becomes questionable as the petitioner has been unable to prove that the
attackers were actually the cultural security guards as the statement made in the press by
the attackers could very well be anti-Sengota propaganda of the attackers. Hence, casting
no duty on Mr. Sengota as there is no breach by his subordinates.

It is most humbly submitted before the Honble Court that, a subordinate does not relieve
his superior of criminal responsibility if he knew or had reason to know that the
subordinate was about to commit such acts or had done so and the superior failed to take
the necessary and reasonable measures to prevent such acts or to punish the perpetrators
thereof23 since the Respondent has categorically denied the intent and knowledge of the
crime in the present case so knowledge being an important element to prove a
subordinate-superior relationship24 is lacking in the present case.

Moreover it is submitted that, even though the superior is considered responsible in

connection with the same crimes committed by the subordinates (i.e. if they have
committed war crimes, the superior is also charged with war crimes), it does not mean
that the superior becomes an accomplice and actually committed these crimes25. So even
if the argument of Prosecutor that there was involvement of cultural security guards is

22
Article 86(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3.
23
ICTY Statute, Article 7(3).
24
Prosecutor v. Halilovic (Trial Judgment), IT-01-48-T, International Criminal Tribunal for the former Yugoslavia
(ICTY), 16 November 2005.
25
Prosecutor v. Hadzihasanovic and Kubura (Appeal Judgment), IT-01-47-A, International Criminal Tribunal for the
former Yugoslavia (ICTY), 22 April 2008.

Memorial For The Defendant

6
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

accepted by the Court then it shouldnt be perceived as the crime has been committed by
Mr. Sengota as he had no knowledge of the same.

In furtherance to above argument it is most humbly submitted that, a superior possesses

or will be imputed the mens rea required to incur criminal liability where: he or she had
actual knowledge, established through direct or circumstantial evidence, that his or her
subordinates were about to commit, were committing, or had committed, a crime under
the Statutes26 and in the present case the Respondent neither knew nor had any reason to
believe27 that the cultural security guards would commit such a crime. Hence Mr.
Sengota deserves this benefit of doubt as there are no facts or circumstantial evidences to
prove the same.

It is most respectfully submitted that, it should be emphasized that the doctrine of

command responsibility does not hold a superior responsible merely because he is in a
position of authority as, for a superior to be held liable, it is necessary to prove that he
knew or had reason to know of the offences and failed to act to prevent or punish their
occurrence28. Superior responsibility, which is a type of imputed responsibility, is
therefore not a form of strict liability29. So it would be unjust and unfair to charge Mr.
Sengota under this offence.

26
Prosecutor v. Tihomir Blaskic (Trial Judgement), IT-95-14-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 3 March 2000.
27
Article 28 of the Rome Statute, 1951
28
Prosecutor v. Dario Kordic, Mario Cerkez (Appeal Judgement), IT-95-14/2-A, International Criminal Tribunal for
the former Yugoslavia (ICTY), 17 December 2004
29
Prosecutor v. Zdravko Mucic aka "Pavo", Hazim Delic, Esad Landzo aka "Zenga", Zejnil Delalic (Appeal
Judgement), IT-96-21-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 20 February 2001.

Memorial For The Defendant

7
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

II. MR. SENGOTA IS NOT GUILTY OF COMMITTING THE CRIME AGAINST HUMANITY

OF MURDER UNDER ARTICLE 7 (I) (A) OF THE STATUTE OF THE INTERNATIONAL

CRIMINAL COURT FOR THE ACTS COMMITTED FROM 08 JULY TO 15 JULY 2016.

A. There is no prima facie evidence against Mr. Sengota

It is most respectfully submitted to the Honble Court that Mr. Sengota is an ardent
believer of Mayavar Religious Texts. He is known for his scholarship in the same, since
he is possessed with such knowledge in the subject, he has a right of being critical which
shouldnt be misconstrued as an anti-Kumi agenda. The accused has always believed in
the fact that the disputes between followers of Mayavar texts and Kumis shall be resolved
amicably.30 It would be unjust and very pre-mature to charge Mr. Sengota with such a
crime against humanity.

It is further submitted that, the prosecutor lacks primary evidences against the
Respondent where they could show a direct connection between the crime and the
Respondent which is an essential condition for a crime. It is the hearsay evidences and
press releases which have been relied upon by the prosecutor which cant be admitted as
there is every possibility that these press releases may be scripted in the present case.
Hence lacking probative value of evidence as per article 69(4) of the Rome Statute of the
International Criminal Court.31

Furthermore it is submitted the statements made by the organizers of protests on the 15th
of July shall not be relied upon as the information has been exaggerated and overstated. It
would be worth mentioning here the duplicitous nature of information provided by the
organizers by falsely claiming that there were half million people involved in the protest
whereas the available facts tells us that the protest was attended by Hundreds and
Thousands of Kumis32 which could in no way imply an enormous population of half

30
3, Page 7, Moot Proposition.
31
The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative
value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the
testimony of a witness, in accordance with the Rules of Procedure and Evidence.
32
1, Page 8, Moot Proposition.

Memorial For The Defendant

8
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

million people. This shows the inclination of press towards the Kumis. Hence these
evidences must be outrightly rejected for fair administration of justice.33

Moreover, since it has been proved that there is an element of fabrication in the release,
hence the Respondents appeal to the Honble Court not to rely on the press release made
on the 15th of July as all the allegations made therein are baseless and without any
sufficient backing. It is submitted that as a general rule, indirect evidence must be
accorded a lower probative value than direct evidence. The Chamber highlights that,
although indirect evidence is commonly accepted in the jurisprudence of the Court, the
decision on the confirmation of charges cannot be based solely on one such piece of
evidence.34 For the ease of court, it is submitted that indirect evidence encompasses
hearsay evidence, reports of international and non-governmental organisations (NGOs),
as well as reports from national agencies, domestic intelligence services and the media.35

B. The attack was not directed by Mr. Sengota

It is most humbly submitted before the Honble Court that, since the Respondent have
been categorically denying Mr. Sengotas involvement in the attacks, as in order to
commit a crime against humanity under the International Criminal Court there must be an
element of Intention and Knowledge36 of the crime being committed which is absent in
the present case.

Further it is submitted that, taking into account that no mental element is specified in
article 7(1)(a) of the Statute, then article 30 of the Statute37 must be applied. The legal
requirements to be proven are thus intent and knowledge. The Court has to be satisfied

33
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07 OA 8, International Criminal
Court (ICC), 25 September 2009.
34
Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang - Decision on the Application
by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the
Statute, ICC-01/09-01/11, International Criminal Court (ICC), 30 May 2011.
35
Prosecutor v. Francis Kirimi Muthaura, ICC-01/09-02/11. , International Criminal Court (ICC), September 13,
2011.
36
The Prosecutor v. Mathieu Ngudjolo Chui, ICC-01/04-01/07 OA 8, International Criminal Court (ICC), 25
September 2009.
37
Supra 39, 423.

Memorial For The Defendant

9
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

that the perpetrator meant to cause death or was aware that death will occur in the
ordinary course of events required by article 30(2)(b) of the Statute38.

Furthermore it is submitted that, past conduct is not a sufficient factor to rely upon in
order to infer the suspect's intent within the meaning of article 30 of the Statute39. So the
court should not accept any evidence presented by the Prosecution to prove Respondents
intent prior to the attack. Consequently it must be established that the material
elements40of the respective crime were committed with intent and knowledge, unless
the Statute or the Elements of Crimes require a different standard of fault.

Moreover it is most humbly submitted before the Honble Court that, the general mental
element of a crime is fulfilled when (a) the suspect means to engage in the particular
conduct with the will (intent) of causing the desired consequence, or is at least aware that
a consequence (undesired) will occur in the ordinary course of events (article 30(2) of
the Statute); and (b) the suspect is aware that a circumstance exists or a consequence
will occur in the ordinary course of events (article 30(3) of the Statute)41.

It is most humbly submitted that, the Prosecution have been unable to prove the sufficient
involvement of Mr. Sengota in the attacks of 15th July and it is their presumptions which
have led them to make such a conclusive statement. This can be proved as Mr. Sengota
himself expressed his ignorance of deaths42 before the press. This shows that the
Respondent was unaware of the attacks let alone the intention to commit such a heinous
crime. Hence lacking an essential condition of Mens Rea i.e. guilty mind43 in committing
the crime and the Prosecutions attempt to mislead the court by providing wrong
information in the press release also shows that there is no direct or circumstantial
evidence which could prove that he directed the attack.

38
Prosecutor v. Zdravko Mucic aka "Pavo", Hazim Delic, Esad Landzo aka "Zenga", Zejnil Delalic (Trial
Judgement), IT-96-21-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 16 November 1998.
39
Supra 39.
40
Article 30(2) of the Rome Statute of the International Criminal Court
41
Supra 42.
42
1, Page 9, Moot Proposition.
43
Prosecutor v. Jean-Pierre Bemba Gombo (ICC-01/05-01/08-2138), Trial Chamber, 22 Feb. 2012.

Memorial For The Defendant

10
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

C. There was no conduct to show a widespread or systematic attack by Mr. Sengota

It is most respectfully submitted before this Honble Court that the act must be committed
as part of a wide spread or systematic attack and not just a random act of violence. The
act can be part of a widespread or systematic attack and need not be a part of both 44. In
the present case there is neither a systematic nor a widespread attack and systematic
maybe defined as thoroughly organised and following a regular pattern on the basis of a
common policy involving substantial public or private resources45.

Further it is submitted to the Honble Court that the death of people during protest in no
way exhibits that the victims were even attacked, as the NGO reports which are heavily
relied upon by the Prosecution itself highlighted the fact that they suspected the deep
wounds were caused by the attackers, but didnt mention anything about the involvement
of cultural security guards or Mr. Sengota. Even if we consider the possibility, that the
people were attacked then it would be the very first instance where the attackers have
actually attempted to hurt the citizens. This shows that there is no regular pattern of
attacks directed against the civilians. Hence lacking an important condition of a common
organizational policy in a systematic attack.

In furtherance to above argument it submitted that the concept of widespread may be

defined as massive, frequent, large scale action, carried out collectively with considerable
seriousness and directed against a multiplicity of victim46 whereas in the present case the
attack inflicted against the civilians is one crime scene and for it to become widespread
the attacks must be committed within a broader context47. Hence lacking the core element
of widespread attack.

44
The Prosecutor v. Ildephonse Hategekimana, ICTR-00-55B-T, ICTR, 5 May, 2011
45
Supra 5.Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang - Decision on the
Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b)
of the Statute, ICC-01/09-01/11, International Criminal Court (ICC), 30 May 2011.
46
Sylvestre Gacumbitsi v.The Prosecutor (Appeal Judgement), ICTR-2001-64-A, International Criminal Tribunal for
Rwanda (ICTR), 7 July 200686.
47
Ibid, 103.

Memorial For The Defendant

11
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

Moreover it is important to draw the courts attention to the fact that since organizational
policy is a key ingredient to prove a systematic attack48 and in the present case it is
nowhere mentioned that Mr. Sengota was involved in any previous planning or
authorizing his subordinates for the attacks. Additionally the organizational policy
depends on the merits of the case and there is no prescribed definition of the same 49 and
in the present case no direct or circumstantial evidence could resemble the presence of
organizational policy.

48
The Prosecutor v. Clment Kayishema and Obed Ruzindana (Trial Judgement), ICTR-95-1-T, International
Criminal Tribunal for Rwanda (ICTR), 21 May 1999
49
Supra 16. .Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang - Decision on the
Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b)
of the Statute, ICC-01/09-01/11, International Criminal Court (ICC), 30 May 2011.

Memorial For The Defendant

12
 17TH HENRY DUNANT MEMORIAL MOOT COURT COMPETITION-2017

PRAYER

Wherefore in light of the questions presented, arguments advanced and authorities cited, the
Defence respectfully requests this Court to adjudge and declare that:

I. Mr. Sengota be found not guilty of committing the war crime under article 8(2) (e)

(iv) of the Statute of the International Criminal Court for the acts committed on 20

May 2016 and all charges dismissed.

II. Mr. Sengota be found not guilty of committing the crime against humanity of murder

under article 7 (1) (a) of the Statute of the International Criminal Court for the acts

committed from 08 July to 15 July 2016 and all charges dismissed.

Respectfully Submitted

Sd/-

Counsel for Defence

Memorial For The Defendant

13