MEMORIAL FOR THE APPLICANT

Pleadings and Authorities

PLEADINGS AND AUTHORITIES

I. THE ACTS ALLEGED ESTABLISH CRIMES UNDER THE STATUTE

A. THE DELIBRATE ATTACK ON CIVILIANS IS A WAR CRIME

PUNISHABLE BY THE STATUTE

Intentional and direct attacks on the civilian population not taking direct part in
hostilities1 is a grave breach of the Protocol I.2

1. SAF directed an indiscriminate attack on Mundo

An attack is any act of violence against the adversary. 3 Potter led the
offensive on Luga (C.30,39) which resulted in the death of civilians (C.30, 31, 40,
43), who are protected persons.4

2. Civilian population was the object of the attack

Civilian population comprises all persons who are not combatants. 5 As an

absolute rule on wartime conduct, civilian population must be spared from any
tactical objectives.6

Many of casualties were non-combatants (C.43). If doubt exists as to one’s

status, they are presumed to be civilians 7. The resulting civilian deaths give rise to
the inference that civilians were indeed the object of the attacks.

1
Statute Art. 8(2)(b)(i) ; Elements
2
Protocol I, Art,51(2); Furundzija Trial 132-122
3
Protocol I, Art 49; Wuerzner
4
Protocol I, Art 50(1)(2); Aleksovski Appeal 98
5
Ibid.
6
Galic Trial 49
7
Protocol I, Art 50(1); Jelisic Trial 54
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Moreover, AAF’s presence (C.24) among the targeted population does not
change its civilian character.8 Luga is predominantly civilian, thus in launching an
attack, the forces should employ all means to distinguish combatants from
civilians. 9

i. Military Necessity inapplicable

Thus, Reckless targeting of civilian population in Luga was

unlawful and unjustifiable. The prohibition on targeting civilians is
customary international law,10 an absolute rule of wartime conduct.

3. Mens rea was present

Mens rea requires that attack must have been conducted with
intent of making civilians the object of the attack. 11 Intent encompasses
concepts of ‘wrongful intent’ or ‘recklessness.’12

The distinction principle obliges parties to distinguish at all times

between civilians and combatants.13 This was violated when Potter
ordered the air raid in civilian concentrations with prohibited weapons
that caused maximum damage (C.40) and his adoption of reckless attitude
of accepting the possibility of civilian deaths happening (C.28) thus
making it reckless.

8
Strugar, Trial 282; Vasiljevic Trial 33
9
Galic, Trial 45
10
Blaskic Appeals 109; Cryer, 242
11
Ibid. 8 at 283
12
Ibid. 9 at 54
13
Ibid. 9 ; Henckaerts, 26
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4. The attack took place in the context of an international armed

conflict(IAC)

IAC refers to all cases of declared war or of any other armed

conflict which arise between two or more of States.14

Here, the use of armed forces of both nations is indeed

international.15

B. THE DELIBERATE DESTRUCTION OF INDUSTRIAL FACILITIES

IS A WAR CRIME OF EXCESSIVE INCIDENTAL DEATH, INJURY
OR DAMAGE

This Crime is a serious violation of Protocol I 16 and is committed when a

party willfully attacks, and such attack will cause incidental loss of life, property
or injury or damage to civilian objects or widespread, long-term and severe
damage to the natural environment which are clearly excessive in relation to the
concrete and direct overall military advantage anticipated.17

1. SAF launched an attack

SAF shelled the industrial area(C.31), destroyed oil refinery and

chemical plant and caused the deaths of large number people
working/living nearby. These acts caused high risk and excessive damage

14
Geneva Convention, Art 2; Limaj Trial 84; Provost, 246
15
Blagoje Simic, Tadic and Zaric, Trial
16
Protocol I, Art. 52(1)
17
Statute, Art. 8(2)(b)(ii); Elements; Brdjanin Trial 586
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to population and environment as concluded by the United Nations

Environmental Programme (UNEP) preliminary report (C.31,32).

i. Civilian objects not legitimate military targets

Military objectives are limited to objects which by

their nature, location, purpose or use make an effective
contribution to military action and their total or partial
destruction gives definite military advantage.18

The industrial facilities included small munitions

factory, which could have been destroyed without causing
collateral damage (C.27) and a chemical plant which
produces only 15% of explosives production. (C.27) The
destruction of these facilities cannot make an effective
contribution to SAF’s military advantage.

Likewise, works containing dangerous forces shall

19
not be the object of attack even when these objects are
military objectives, if such attack may cause the release of
dangerous forces and consequent severe losses among the
20
civilian population. The plant and refinery destruction
clearly resulted in the release of contaminants with long-
term adverse effects that affect civilian population as
confirmed by UNEP. (C.32)

18
Protocol I, Art. 52(2); O’Keefe, 156; Hague Convention
19
Protocol I, Art. 56
20
Ibid
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ii. Doctrine of Proportionality violated

An attack or otherwise lawful military objective

which inflicts excessive collateral damage or incidental
injury in relation to the concrete military advantage
anticipated21 is treated as indiscriminate and therefore
prohibited.22 The death and the effects on the environment
are disproportionate to the goal of neutralizing AAF forces.

iii. Presumption of civilian object status stands

When in case of doubt as to whether an object gives

effective contribution to military action, it shall be
presumed not to be so used and shall not be attacked when
it is not reasonable to believe that such is used to make any
contribution to military action.”23

The facilities were primarily used for commercial

and agricultural purposes (C.27) the destruction of which
do not show definite military advantage for the SAF.

21
Protocol I Art. 51(5)
22
Corn
23
Galic Trial 51

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2. Such attack caused incidental and excessive death, injury or damage

to civilians, objects and the environment

In order to be liable, the perpetrators must be shown to have

caused extensive damage or deaths to civilians and/or the environment.” 24
Due to the hostilities, there were civilian deaths as reported by Non-
Government Organizations, media, the Amnesty International and the
UNEP. (C. 30, 31, 43, 44)

3. Mens Rea present

The manner by which the attacks were conducted showed an intent

of making the civilian objects, the object of the attack.25

Luga’s topography, afforded the SAF vantage point for a precise

attack to prevent damage or injury to civilians and objects. Despite such,
the SAF recklessly caused civilian deaths (C.30, 31). The resulting
disproportionate attacks, death and damage thus give rise to the inference
that civilian objects were actually the object of the attack.

Furthermore, the forces failed to apply the absolute duty to

distinguish. Instead they carelessly and deliberately targeted the whole. (C.
31)

These facts establish mens rea.

24
Kordic and Cerkez Appeal 55-57
25
Strugar Trial 283
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4. IAC exists
Please refer to discussion I(a)(4).

C. THE USE OF WHITE PHOSPHOROUS (WP) AND CLUSTER

MUNITIONS (CM) CONSTITUTE THE WAR CRIME OF
EMPLOYING PROHIBITED WEAPONS

This crime is committed by employing weapons, projectiles which by their

nature cause superfluous injury or unnecessary suffering or which are inherently
indiscriminate in violation of IHL.26

1. WP and CM use was illegal

In any armed conflict, the right to choose methods or means of

warfare is limited27 thus employing weapons that cause superfluous injury
or unnecessary suffering is prohibited.28

i. Incendiary and Cluster Munitions were used

CM is a conventional munition designed to disperse and

includes those explosive submunitions29 while incendiary weapons
such as WP are designed to cause burn through the action of flame
produced by a chemical reaction of a substance delivered on the
target.30

26
Statute Art 8(2)(a)(iii); Elements; Lawrence, 121
27
Protocol I, Art 35(1)
28
Protocol I, Art. 35(2)
29
Art.(2) CCM
30
Protocol III, Art 1
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Compelling evidence exists consisting of testimonies of witnesses,

victims and media reports on the use of such weapons (C.40, 42, 44) while
Stovia admitted the WP use. (C.40)

ii. SAF’s use of such weapons violated IHL and

customary laws

Marten’s clause provides that civilians and

combatants remain under the protection and authority of the
fundamental principles of humanity.31 As such, the use of
weapons not covered by existing rules is a violation of
Martens clause if it is determined per se to contravene such
principles.32

iii. SAF indiscriminately and illegally used the weapons

Use of weapons against any military objective
within civilian concentrations is prohibited unless the
military objective is clearly separated from the civilians.
The air-dropping against military objectives within a
concentration of civilians is simply prohibited.33

Most CMs are unguided, and even the few with

guidance mechanisms are not precision guided. Unguided
CM can miss their mark and hit nearby civilian objects. 34

31
Protocol I, Art. 1(2)
32
Legal Review to implement Art 36
33
ICRC’s view
34
Hiznay, p.21
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Large quantities of unexploded bomblets (C.40) proves its

imprecision thus making such use indiscriminate.

The resulting civilian deaths (C.40) show that

Potter failed to ensure the effects of attacks were in
proportion to the nature of the target and military necessity
and the rules on distinction.

2. The crime is punishable

A State is obliged to refrain from acts which would defeat the

purpose of a treaty when it has signed it subject to ratification, acceptance
or approval, until it shall have made its intention clear not to become a
party therein.35 In this case, Stovia never expressed its intention not to
become a party to the treaty prior its entry into force, hence it is bound by
its provisions.

Assuming arguendo that the Law on Treaties is inapplicable, the

allegation that the use of a weapon is not included in a separate crime does
not mean that it cannot be included in other crimes. 36 At the very best, the
indiscriminate use of the weapons is regarded as evidence of the intent of
the accused to deliberately attack the civilian population.37

Here, because of non-compliance with the principle of distinction,

the attacks were indiscriminate and illegal.

35
Vienna, Art.18
36
Statute Article 8(2)(b)(iv)
37
Martic, Hearing 31

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3. The perpetrator was aware that their use would cause unnecessary
suffering

The decision to apply an area effect to a target is a deliberate

act on the part of the commander to gain military advantage.38

Potter ordered the attack (C.39) despite his knowledge of thw

effects of such weapons. (C.21) Hence, his conduct cannot be justified that
it was not intended.

II. POTTER IS CRIMINALLY LIABLE FOR THE CONDUCT OF SAF

Potter, as commander is liable for his subordinate’s acts under the doctrine of
Command Responsibility.39

A. POTTER EXERCISED EFFECTIVE CONTROL

To be liable, it is necessary to have effective control or the material

ability to prevent and punish the commission of offenses, over the persons
committing the acts complained of.40

Potter demonstrated both kinds of power by his command in

military matters consistent with the exercise of superior authority and by
being in control over the manner and conduct of the attack. 41 (C.28, C.30,
C.35, C.36, C.38, C.40, C.41)

38
Ibid. 33
39
Statute, Art. 28(a); Delalic, Mucic Appeal 162,171; Dungel
40
Kordic and Cerkez, Appeal. 840; Halilovic Trial 58; Moloto
41
Kunarac Trial 386

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B. POTTER KNEW OF THE CRIMES COMMITTED

Potter had actual knowledge of the number, type and scope of illegal acts
committed by SAF against AAF evidenced by direct and circumstantial
evidence42

1. Potter knew of the attack

Potter directly issued orders, instructions and directives to SAF and

ensured the implementation thereof. He must bear full responsibility for the
results.

2. Potter ordered the use of indiscriminate weapons

Potter ordered the air raid of Mundo as requested by his subordinate. He

actively participated in the planning of such attacks; he cannot later on reject that
he had knowledge constituting such facts.

C. POTTER FAILED TO TAKE MEASURES TO PREVENT THE

COMMISSION OF THE CRIMES

Because of his recklessness in not applying the principle of distinction, he

failed to take necessary steps to prevent criminal acts of his subordinates and its
consequences.43 The attitude of Potter who, without being certain of a particular
result, accepts the possibility of it happening (C.28) proves his recklessness.44

CONCLUSION AND PRAYER

42
Galic, Trial 174
43
Sliedregt, 180; Moloto
44
Galic, Trial 54
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WHEREFORE, the applicant prays to this Honorable Court to declare and adjudge that
Col. Potter is criminally liable under the SICT Statute for the following:

1. The war crime of ATTACKING CIVILIANS.

2. The war crime of EXCESSIVE INCIDENTAL DEATH, INJURY OR

DAMAGE.

3. The war crime of EMPLOYING PROHIBITED WEAPONS, PROJECTILES OR

MATERIALS OR METHODS OF WARFARE.

Respectfully Submitted,

Counsel for the Applicant

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