Team No.

Indonesian National Rounds

International Humanitarian Law Moot Court Competition

Memorial of the Defendant

2018
TABLE OF CONTENTS
TABLE OF CONTENTS.......................................................................................................2
PLEADINGS......................................................................................................................4
I. THE INTERNATIONAL CRIMINAL COURT [“ICC”] IS
BARRED FROM EXERCISING JURISDICTION OVER
MICHELL NAZIR
(“NAZIR”).................................................................................................................4
II. INDICMENTS...............................................................................................................4
INDICTMENT 1- COLONEL NAZIR IS NOT LIABLE FOR
THE ALLEGED CRIME AGAINST HUMANITY.............................................................4
1. Charges can not be brought against colonel nazir under Article 8,
crimes against humanity.....................................................................................4
2. Colonel Nazir did not order, solicit nor induce
the commission of such a crime, person orders, solicits or
induces another person......................................................................................5
3. The perpetrator did not intend the civilian population as such nor
individual civilians not taking direct part in hostilities to be
the object of the attack.......................................................................................6
4. The perpetrator did not foresee that the attack would
cause incidental death or injury to civilians........................................................6
5. The alleged crime against humanity of extermination
is not established………………………………………………………….....................................7
INDICMENT 2 - COLONEL NAZIR SHALL NOT LIABLE
FOR THE ALLEGED CRIME OF THE ATTACK ON THE
BUTTERFLY TEMPLES ON 28 DECEMBER 2016.........................................................7
1. Required Elements of Crime under Article 8(e)(iv)
are not satisfied...................................................................................................7
2. The Temples were military objects at the time of the attack................................8
3. Colonel Nazir did not intend the Temples to be the object
of the attack........................................................................................................9
4. Colonel Nazir is not liable for the alleged crime of directing
an attack againt a civilian population................................................................10
INDICMENT 3 - THE ALLEGED WAR CRIME OF VIOLENCE
AND TORTURE TO PERSON IS NOT ESTABLISHED................................................10
1. The alleged crime of the torture against the persons who

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 arrested and detained in the old building is not established.............................10
2. Detainees were arrested in 28 December 2016 dan detained
in the old building get medical assistance.........................................................11
III. RESPONSIBILITY....................................................................................................11
IV. PRAYER FOR RELIEF...............................................................................................13

PLEADINGS

I. THE INTERNATIONAL CRIMINAL COURT [“ICC”] IS BARRED FROM EXERCISING

JURISDICTION OVER MICHELL NAZIR (“NAZIR”)

3
 ICC’s jurisdiction may be triggered if, inter alia, the Prosecutor refers a case to it.1
The Prosecutor must then convince a panel of judges that “there is a reasonable basis
to continue with the investigation and that case would appear to fall within court’s
jurisdiction.”2 Consequently, ICC has jurisdiction can only be exercised over nationals:
(i) of States Party [“SP”]; 3 or (ii) a non-SP, which has made a declaration accepting ICC
has jurisdiction.4 Unless being referred to by United Nations Security Council
[“UNSC”], ICC lacks jurisdiction over crimes committed by nationals of non-SP. 5 Even if
ICC has jurisdiction over C. Nazir, the Elements of Crime [“EOC”] for all charges have
not been fulfilled, as submitted infra.
II. INDICTMENTS
INDICTMENT 1-COLONEL NAZIR IS NOT LIABLE FOR THE ALLEGED CRIME AGAINST
HUMANITY
1. Charges Cannot Be Brought Against Colonel Nazir Under Article 8, Crimes Against
Humanity
To establish a crime against humanity which would bring Colonel Nazir under
jurisdiction of the ICC, we must apply the threshold test of Article 7 and determine
whether the acts in question were committed as part of a widespread or systematic
attack directed against a civilian population, with knowledge of the attack. A
widespread attack is “understood as requiring large-scale action involving a
substantial number of victims” while the term systematic was “understood as
requiring a high degree of orchestration and methodical planning.” In this case,
neither of these requirements are met. The actions of Colonel Nazir was,
individually, targeted responses based on and planned according to military
intelligence reports, as any other operation would be.
His actions was based on a desire to maintain peace. Finally, Colonel Nazir did
not possess the requisite mens rea necessary to designate his actions as crimes
under Article 7. In order to find an individual guilty of a crime against humanity, he
must have “at least awareness of the widespread and systematic attack to be found
guilty.” In Mudacumura, the responsibility of “ordering” requires authority and the

1
Rome Statute 1998,UNDoc.A/CONF.183/9,1July2002[“RS”],Art.13(a).
2
RS,Art.15(4).
3
RS,Art.12(2).
4
RS,Art.12(3).
5
Case of Sudan.UN Resolution.31March2005,UN:S/RES/1593,¶6.

4
 order’s direct effect on the commission of the crime. 6 In Akayesu, the ICTR found
evidence must show how and in what capacity the accused supported the act. 7
Furthermore, the accused’s knowledge cannot be “presumed”; solid evidence must
prove it.8 In this case, solid evidence showing Colonel Nazir of the alleged crime
cannot be provided. Furthermore, although Nazir held a commander position no
evidence shows how and in what capacity he supported the act as there exists no
evidence in the record which would indicate that Colonel Nazir was aware of such a
systematic attack, even if one existed (we have shown, above, that there was no
such attack). Without the requisite knowledge, Colonel Nazir can not be brought
before the ICC under charges of crimes against humanity due to he cannot be
responsible.
2. Colonel Nazir did not order, solicit nor induce the commission of such a crime, a
person orders, solicits or induces another person
To commit a war crime pursuant to Article 8(2)(e)(i) 66 (Rome Statute) 9 Colonel
Nazir did not order, solicit nor induce security force to commit the alleged war
crime.10The ICC found that contributions to the alleged crimes must be
“significant”.11 When assessing the contribution, it considered whether the person
created or executed the plan12. In Sang, the Court required that the contribution
result in the commission of the crimes 13 In this case, Nazir neither executed an
“attack” nor created a criminal plan.14 There is no fact that provides that Colonel
Nazir was the one of engaged in such conduct to order security force to order attack
againts civilian. But Colonel Nazir ordered security force to make differentiate
between civilian and BLO leader which means he had no intent to kill anyone at
all.15 Colonel Nazir is not individually responsible for the war crime.

6
ICC, Mudacumura Decision on the Prosecutor's Application under Art.58, para.63.
7
ICTR, Akayesu Judgment, para.642.
8
ICTY, Kordic Judgment, para.427
9
Article 8(2)(e)(i) 66(Rome Statute).
10
Article 25(3)(b), Rome Statute.
11
Supra note 64, para.276.
12
Ibid., para.284.
13
69 ICC, Ruto, Kosgey and Sang Decision on Confirmation of Charges, para.354
14
Problem 22
15
Problem 22

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3. The perpetrator did not intend the civilian population as such nor individual
civilians not taking direct part in hostilities to be the object of the attack
The armed force was not manipulated or exploited by Colonel Nazir to commit
the crime. Therefore, there is no indirect perpetration on Colonel Nazir’s part and
The perpetrator did not intend the civilian population as such nor individual civilians
not taking direct part in hostilities to be the object of the attack. Because in the
same time, BLO leader held a meeting to their next operation in the Butterfly cafe,
next to Butterfly Temple and bonhamians held annual religion festival. 16 BLO
received nuclear weapons from page,17 and this violated Article II stated Each non
nuclear weapon State Party to the Treaty undertakes not to receive the transfer
from any transfer or what soever of nuclear weapons or other nuclear explosive
devices or of control over such weapons or explosive devices directly, or indirectly
not to manufacture or otherwise acquire nuclear weapons or other nuclear
explosive devices and not to seek or receive any assistance in the manufacture of
nuclear weapons or other nuclear explosive devices. 18
4. The perpetrator did not foresee that the attack would cause incidental death or
injury to civilians
Donkan military forces announced that everyone involved in meeting should
surrender without any delay. However, receiving no response from others, Colonel
Nazir ordered his forces to surround and secure the vicinity. When they were about
to reach the venue, there was gunfire from one of the gates and immediately, the
military forces fired back for the security purpose. According to reliable intelligence,
200 BLO cadres carrying the weapons. Its can proof from the military pesonel found
56 dead bodies.19 The deployment of military forces under the command of Colonel
Nazir was merely to re-establish public order and protect the security of all citizens
of Donkan by all means necessary. 20 and it can be certainly argued that the role of
Colonel Nazir at that time was to solve the internal disturbance occurred in Donka
and Bonham. He could not have known that attack would cause excessive casualties

16
Problem 21.
17
Problem 9.
18
Art 2. of NPT.
19
Problem 15.
20
Problem 11.

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 in either the ordinary course of the attack or unforeseeable circumstances. 21 The
targets for attacking were legitimate military objects, while Nazir had taken feasible
measures to minimise collateral damage. This had shown that perpetrator did not
foresee that the attack would cause incidental death or injury to civilians or damage
to civilian objects which had resulted dozen civilian deaths.
Command constructed by the perpetrator, 22 had been known or should have
been known of the likely consequence of the action’ (recklessness or dolus
eventualis) which might resulted casualties but is justifiable due to the reason of
maintain the security of the circumstances. 23
5. The alleged crime against humanity of extermination is not established
The elements of the crime are not satisfied. The elements of crimes (“EoC”) 24
under Article 7 (1) (b) require the establishment of four elements, two of which are
not satisfied. The conduct was not committed as part of a widespread or systematic
attack directed against a civilian population. In this case, 18 people were killed in
confrontation because they carrying BLO propaganda material. 25
INDICMENT 2 - COLONEL NAZIR SHALL NOT LIABLE FOR THE ALLEGED CRIME OF THE
ATTACK ON THE BUTTERFLY TEMPLES ON 28 DECEMBER 2016
1. Required Elements Of Crime Under Article 8(e)(iv) are not satisfied
The alleged crime of the attack against the Temples is not established because
the elements of the crime are not satisfied. The elements of crimes (“EoC”) under
Article 8(e)(iv) require the establishment of five elements, two of which are not
satisfied.26
2. The Temples were military objects at the time of the attack
The Rome Statute stipulates that a crime has only been committed “if the
material elements are committed with intent and knowledge. 27 The requirement of
“intent” is established by reference to three particular factors: conduct,
consequence and circumstance. First, a person has intent if he or she “means to

21
Prosecutor. v Colonel Arthur Reed para. 25, 26 and 27.
22
Problem 15.
23
Cassese, 2008, International Criminal Law, Hampshire, Oxford Press, p.93.
24
Article 7 (1) (b) EoC.
25
Problem 10.
26
Article 8(e)(iv).
27
ICCst, Article 30(1).

7
 engage in the conduct”.28 Second, it is necessary that the individual “means to cause
that consequence or is aware that it will occur in the ordinary course of events”. 29
Third, by “knowledge” “means awareness that a circumstance exists or a
consequence will occur in the ordinary course of events”. 30 The subjective elements
are not satisfied because Nazir had neither the knowledge nor the intention of the
relevant consequences of the events.31 refer to a volitional element that suggests
Nazir and other perpetrators 1) know that his and their actions will bring about the
crimes; and 2) intend to bring about the crimes. 32 Colonel Nazir intended to attack
the BLO leader. He did not intend to cause such consequences, but to secure
Donka33
Based on Article 52 of Additional Protocol I of 1977, the position of cultural
objects as civilian objects can change into the scope of work that is truly reliable by
the military or has effective benefits for the performance of the party of the
enemy34. The attack on the Temples was legitimate because they were military
objectives.35 As defined by its nature, location, purpose or use, makes an effective
contribution to military action, and in the circumstances ruling at the time, offers a
definite military advantage.36
In this case, the Temples are being used by the BLO leader to escape from the
Butterfly cafe to the Butterfly Temple. 200 BLO cadres carrying the weapons and run
to the Temples. The Temples were functioning for religious activities, but at the time
of the attack, they became military objectives. 37

3. Colonel Nazir did not intend the Temples to be the object of the attack
To direct an attack one has to plan, instigate, order, commit, or otherwise aid
and abet in the carrying out of said attack. 38 Colonel Nazir did not give a
28
Article 30(2)(a) of ICCSt.
29
Article 30(2)(b) of ICCSt.
30
Article 30(3) of ICCSt.
31
ICCst, Art. 30.
32
Prosecutor v. Lubunga, paras.351.
33
Problem 25.
34
Article 52 of Additional Protocol I of 1977
35
Rule 38 Customary International Humanitarian Law (“CIHL”).
36
5 Rule 8 of CIHL.
37
Problem 21.
38
Prosecutor v Blaskic, Decision, April 1998, para.31

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 predetermined directive regarding the Butterfly temple, and the attack was did by
the BDS in the heat of the moment and in reaction to attack. It cannot be said that
Colonel Nazir. Colonel Nazir ordered an attack against the BLO leader. Only targeting
BLO’S forces were having preparatory meeting for their next operation with the
member of Pagian armed forces in the Butterfly cafe, a cafe next to Butterfly
Temple. That attack was carefully planned in order not to cause panic among people
in the area.39 However, a group of people fled from the cafe to the Butterfly Temple
where the Bonhamians held a annual religious festival. When the Donkan soldiers
encircled the temple while the BDS personnel rushed into the temple. They heard
gunfire from within, they spontanly opened fire inside of the temple without any
intentional elements.40 So, he did not intend to cause such consequences.
The damage caused to the Butterfly Temple were not the objectives of the
attack, but the BLO were the objects. Before the attack occurred, there was warning
to the people who involved in meeting.41
4. Colonel Nazir is not liable for the alleged crime of directing an attack
againt a civilian population
There was no directed attack against a civilian population and the object of the
attack was not a civilian population as such or individual civilians not taking a direct
part in hostilities. A group of people fled from the Butterfly cafe is the BLO member
because when attack during 20 minutes in the temple cause 12 people were killed
and 7 seriously injured had been identified as BLO member. 42
Indiscriminate attacks which strike civilians or civilian objects and military
objectives without distinction, may qualify as direct attacks against civilians. An
attack is legitimate when it is directed at military objectives. An attack is prohibited
unless directed at combatant forces. The parties to the conflict are obliged to
distinguish between military targets and civilian persons. The object of the attack is
the BLO who used Butterfly cafe next to Butterfly Temple. 43 Colonel Nazir did not
intend the civilian population as such or individual civilians not taking direct part in
hostilities to be the object of the attack.

39
Problem 22.
40
Problem 21.
41
Problem 22.
42
Problem 22
43
Problem 22.

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5 The alleged war crime of the attack against civilian is not established because the
elements of the crime are not satisfied.
The elements of crimes (“EoC”) 44 under Article 8(2)(e)(i) require the
establishment of five elements, two of which are not satisfied. In the incident that
killed 69 BLO supporter because the protest started by the crowd BLO’s supporter.
President of donka never order the attack but to secure Donka. As well as Colonel
Nazir to commit his duties and he didn’t know the consecuention when secure it. so
that, presence of military fired back whereas military’s aim to secure the riot, and
prevent civilian’s support to BLO and further damage in Donka. As a result 50
people were killed, 100 were superfluous injury. 45
Colonel Nazir did not have knowledge that they were attacking Civilians Areas.
Colonel Nazir attacked butterfly cafe based on the intelligence reports. 46 pagian
armed force attending the meeting to their next operation because BDS found flash
disk relating a draft strategy document to their next operation and it was justified
by Hani Piccoito as the deputy national security advisor of page. And BDS also found
entry pass to a pagian military base.47
The target was chosen because BLO leader was located there and not because
innocent civilians at there. Defendant therefore did not "mean to engage in the
conduct," as alleged.48 Nor was he "aware that [civilians would be killed] in the
ordinary course of events." 49 Therefore, there is nothing to support a contention
that they were aiming at harming civilians. His intent was to cripple the enemy by
firing a military target.
INDICMENT 3 - THE ALLEGED WAR CRIME OF VIOLENCE AND TORTURE TO PERSON IS
NOT ESTABLISHED
1. The alleged crime of the torture against the persons who arrested and detained in
the old building is not established

44
elements of crimes Art. 8 (2)(e)(i).
45
Problem 13.
46
Problem 22.
47
Problem 23
48
Rome Statute art. 30(2)(a) at 1018.
49
Id. art. 30(2)(b) at 1018.

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 The elements of the crime are not satisfied. The elements of crimes (“EoC”) 50 under
Article 8 (2) (c) require the establishment of two elements, one of which are not
satisfied. The perpetrator not inflicted the pain or suffering for such purposes as:
obtaining information or a confession, punishment, intimidation, coercion or for any
reason based on discrimination of any kind. Because all people who arrested and
detained only for security, and there was no complain about the torture. There was
no war crime of torture because the fact that injured people is witness of control
and training against security force of Donka. 51 The Donka preventive detention law
of 2006 permitted the detention of citizens for a period of thirty days. 52
2. Detainees were arrested in 28 December 2016 and detained in the old building get
medical assistance
Altough the building did not have electricity, and running water. They were taken for
a one-hour walk in the yard of building once a week in order to get refresh. They
were provided with only 2 glasses of water and 4 slices of bread, this was what the
guards received. Despite there were no medical facility, the sick inmates are not left
within the building and they were taken away by the black uniformed guards to get
medical assistance.53

III. RESPONSIBILITY
A. SUPERIOR RESPONSIBILITY
A superior is liable for his subordinates’ acts when: 54 (1) the superior
exercises effective control over his subordinates, (2) the superior either knew, or
consciously disregarded information that the subordinates were committing or
about to commit such crimes, and (3) superior fails to prevent or punish the
commission of the crime. It is worth noting that the application of the doctrine
of superior responsibility on civilian leaders is much more limited than military
commanders.55

50
Article 8 (2) (c) EoC.
51
Problem 29.
52
Problem 29.
53
Problem 27.
54
RS,Art.28(b).
55
Nahimana,Barayagwiza,Ngeze(AppealsChamber),ICTR-99-52-A,28November2007,¶605,785.

11
 On the first and second charge, Jones though stated to supervise the
military action personally,56 he did not perform technical supervision. Thus, he
did not do any certain act to abate the misleading impacts of the plan. On the
third charge, absent such knowledge, Jones can not be expected to be superiorly
liable.
B. INDIVIDUAL RESPONSIBILITY
Colonel Nazir is not individually liable as (i) he did not plan, order, aid, abet, or commit a
crime.57 Solely or through another; 58 or (ii) possess intent or knowledge thereof. On the
first and second charges, Colonel Nazir was not personally involved attack of protected
cultural property, and Colonel Nazir was never acknowledged the crime action. Even
though it's a citizen has been responsible as an individual under international
humanitarian law, but does not eliminate the role and responsibility of the state. 59Rules
of 149 customary of international humanitarian law states that: "a country is responsible
for violations of international humanitarian law associated with it, including violations
carried out by its organs, including its armed forces. 60In conclusion, Colonel Nazir is not
individually responsible for all charges.

IV. PRAYER FOR RELIEF

The Defendant respectfully requests this Court to adjudge and declare that
Colonel Nazir is not criminally responsible for charges of: The war crime of
intentionally launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian objects which would
be clearly excessive in relation to the concrete and direct overall military advantage
anticipated.61 The war crime of intentionally directing attacks against buildings and
material.

56
Problem 25
57
RS,Art.25(3).
58
Kordic,Cerkez(TrialChamber),ICTY-IT-95-14/2-
T,26February2001,¶36;Rutaganda(TrialChamber),ICTR-96-3,6December1999,¶35.
59
Malcolm II, Op.Cit., h. 434.
60
Jean-MarieHenckaerts dan Louise Doswald-Beck, Op.Cit., h. 530
61
(article 8(2)(b)(iv) of the ICC Statute).

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