3A

2001 NATIONAL MOOT COURT COMPETITION ON INTERNATIONAL HUMANITARIAN LAW

PROSECUTOR VS. DAVID DABAR

2730 September 2011

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1.

TABLE OF CONTENTS

Index of Authorities Statement of Facts Parties 5 Facts Summary of the Pleadings Pleadings Proper Claims Claim 1 Crime Against Humanity of Deportation or Forcible Transfer of Population Claim 2 War Crime of Hostage Taking Claim 3 War Crime of Willful Killing Relief Requested

3 5

6 13 15 15

15 18 22 25

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2.

INDEX OF AUTHORITIES

TREATIES 1. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 2. Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949 3. Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949 4. Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 5. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 6. The Universal Declaration of Human Rights

STATUTES 1. Statute of the International Criminal Court

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ARTICLES 1. Qualifications of Armed Conflicts (http://www.adh-

geneva.ch/RULAC/qualification_of_armed_conflict.php) 2. United Nations Doc. PCNICC/2000/1/Add.2 [2000]

CASES 1. Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, 2 October 1995 (Tadic}Appeal I). 2. Situation in the democratic republic of the Congo in the case of the prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui 3. Tadi case, No. IT-94-1-AR72, 70.

OTHERS 1. Concise Oxford Dictionary 2004 11e

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3.

STATEMENT OF FACTS A. PARTIES 3.1. The prosecutor of the International Criminal Court (ICC), by virtue of the reported violations of international humanitarian laws to wit, killings, torture, displacement of civilians, attacks on civilians, and destruction of civilian property, applied for and initiated proceedings against David Dabar. 3.2. The prosecutor, applicant herein, brought the following charges against David Dabar: 3.1.1 3.1.2 3.1.3 3.3. Crime Against Humanity of Deportation or Forcible Transfer of Population War Crime of Taking Hostages War Crime of Killing

David Dabar, respondent herein, was elected to the Losovo Provincial Assembly on behalf of the FDP and in-charge of the law and order affairs in the Losovo Executive Council. David Dabar was seen as the figurehead of the Nomag Democratic Resistance Alliance (NDRA).

3.4.

David Dabar was subsequently proclaimed as the chief of the NDRA as established by the FDP to bring about the independence of Losovo.

3.5.

David Dabar was primarily charged by the Prosecutor of the ICC for the alleged crimes: 3.5.1. Crime Against Humanity of Deportation or Forcible Transfer of Population 3.5.2. War Crime of Taking Hostages

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3.5.3. War Crime of Killing B. FACTS 3.6. This case has been instituted by the Prosecutor of the ICC against the alleged crimes committed by David Dabar against the State and the People of Vanilia. 3.7. Vanilia obtained its independence in 1959. It is bordered by the Maxicum Sea on the east with a coastline of more than 500 kilometres, by the Republic of Berryland to the south and west and the Republic of Mingolia to the north. Vanilia is federal state divided into three provinces and has a population of around 20 million people. It is populated by the Lemi people who are mostly Protestant and Swarohi speaking (56% of population) and by the Nomag people who are Catholic and Nomagi speaking (32% of population). The Nomag people, though spread across the country, are in the majority in the province of Losovo, which borders Berryland. Many believe that the Nomags came to Vanilia from Berryland during the colonial period as indentured labourers. Others think that Losovo is in fact the original land of the Nomags, and that they later spread from Losovo into Berryland. It was made part of Vanilia only because of the existing colonial administrative divisions at the time of independence. Owing to the circumstances of the independence of the three countries which left many issues unresolved, Vanilia continues to have border disputes with its neighbours Mingolia and Berryland. There have been sporadic border incidents with exchange of fire across the borders. 3.8. After the independence, Vanilia adopted a political system of representative democracy with a multiparty system. The President appoints the leader of the party which wins the majority in the legislative

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elections as Prime Minister, who then chooses the members of his cabinet among elected deputies. The People's United Democratic Party (PUDP) has formed the successive governments since independence. Though the PUDP claims to be secular and have countrywide support, it is mainly supported by the Lemis. Its main political agenda is said to be the protection and promotion of Lemi rights and well-being (which feel that they were discriminated against as a minority during the colonial era). The Federal Democratic Party (FDP) has been the main opposition party and openly claims to protect the interests of the Nomags. 3.9. A general resentment among Nomags is that they have been neglected by the successive governments and are not proportionately represented in the political decision making which has resulted to the neglect of the welfare and economic development of the Nomag people. Some organizations also claim that the Nomags are under-represented in the main sectors of the economy and discriminated against in the public service. 3.10. Ever since the independence, some Nomag groups have been

spearheading the idea of an independent Losovo state. 3.11. In the provincial elections, the Federal Democratic Party (FDP)

won an overwhelming majority in the Losovo Provincial Assembly and formed the executive council. 3.12. The FDP established the National Democratic Resistance Alliance

(NDRA) with the avowed objective to obtain the independence of Losovo. 3.13. David Dabar was elected to the Losovo Provincial Assembly on

behalf of the FDP and in-charge of law and order affairs in the Losovo Executive Council.

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3.14.

On October 15, 2008 Vanilias independence day was marred by a

demonstration of around 500 people from the NDRA hoisting a Losovo National Flag. 3.15. On November 30, 2008, the NDRA, while fast in recruitment,

declared its separation from the FDP. David Dabar was proclaimed chief of the NDRA and will spearhead the campaign for Losovos independence. Dabar remained a member of the Losovo Executive Council. 3.16. On December 5, 2008, students from Rizoba University formed the

Nomag Student Alliance (NSA) which aims to co-fight for Nomags rights in co-ordination with other groups. The NSA issued a call for boycott of classes 3.17. to be enforced in military forms if necessary.

On February 3, 2009, Pro-Losovo independence associations were

also formed. Said associations agreed to coordinate their works and to see necessary national and international support. The final declaration indicated that all associations would take guidance from the NDRA and its leader David Dabar. 3.18. On February 3, 2009, several attacks on the Lemis of Losovo in 5

towns lead to a death toll of 126 and 239 injuries. The government is of strong belief that the NSA was behind said attacks. 3.19. Several newspapers published a report based on a NDRA internal

document purporting to eliminate the influence of the Lemis in Losovo. The government of Vanilia confirmed the expulsion of the Lemis and their displacement in temporary camps. The NDRA and the NSA did not deny such forced expulsion but in turn posed in their press releases that Lemis

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that had left the province would be welcomed back in only after Losovo had achieved independence and on the condition that they would swear allegiance to the new state of Losovo. 3.20. On February 10, 2009, as reported that increasing attacks on Lemi

residences in Rizoba by NSA members were to be expected. The same evening, David Dabar went around the Pleasant Gardens area along with NDRA members and erected roadblocks to control the movement of the residents. 3.21. On February 10, 2009, the NSA members went to the residences

and forcibly brought out more than 400 Lemi residents into the areas main square. The NSA members divided the residents into two groups: men, and women and children. They were taken across the border, on the territory of Berryland, though such territory remained a contentious one as Vanilia also claimed it despite an arbitral award in favour of Berryland which was disputed by Vanilia. 3.22. An occasion was reported where several attacks had taken place on

the property of the Vanilian government as well as on private property where 39 people were killed. Lemis were again forced to flee to other provinces. 3.23. On 22 May 2009 at around midnight, a camp of the security forces

on the outskirts of Rizoba was attacked by armed men and in the pitched battle that ensued between the armed men and security forces, the camp site was in ashes by the next morning. 156 bodies of the security forces and 53 unidentified bodies were recovered from the site. It was reported by local officials that armed men were continuing their attacks on government property, mainly offices and vehicles, as well as on Lemi

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people and their property. Three highways connecting Losovo with other cities in Vanilia were blocked by armed youths at Losovo borders. 3.24. On 28 May 2009, David Dabar convened a press conference and

declared that the NDRA would organize a rally the next day and declare the independence of Losovo. On 29 May 2009, thousands of people gathered on the Rizoba University grounds. Dabar greeted the crowds and thanked them for being supportive of the cause of the liberation of Losovo. He announced that the FDP government had issued a declaration of independence. Losovo was now an independent sovereign country. The NDRA was soon to be in control of the entire province. He said that from now on, the Losovo administration was going to be in the hands of Nomag and for the interests of the Nomags. All Nomags in other parts of Vanilia were welcome to settle in Losovo to participate in the development of the new country. Adopting a warning tone, he said that non-Nomag people could remain in Losovo. However, he added, all, including Lemi people, should respect the law of the country. At the end of the meeting, he introduced Wilson Mula, leader of the FDP, and announced that he would be leading the interim government for the next one year, until a new constitution was drafted and a constitutionally-elected government took over. 3.25. On 2 June 2009, Berryland recognized Losovo, followed by

Mingolia on 4 June. In an extension of solidarity to a fellow people, the Berryland government waived the visa requirement for Losovo citizens for one year, which it said would help stabilizing Losovo. The Berryland Prime Minister also promised to extend the necessary support to the newly formed Losovo government. With regard to international relations, in his first press conference, Mula announced that Losovo wished to maintain friendly relations with all countries and that it would succeed to all multilateral international treaties to which Vanilia was a party that dealt

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with human rights and international humanitarian law. With regard to other treaties, including bilateral treaties, they would be reviewed within the next two years. The first official act of the new government was to grant by decree Losovo citizenship to all Lemis residing in the province. Other residents were to be granted citizenship at their request if they undertook to live in Losovo and swore allegiance to the new State. A new law on citizenship was soon to be adopted. 3.26. In the night of 9 June 2009, more than 500 Vanilian forces were

attacked when they moved into Losovo, but nonetheless managed to come within 100 kilometers of Rizoba. Fierce fighting continued through the night resulting in heavy casualties on both sides. 3.27. During the night of 10 June, NDRA fighters patrolling Rizoba and

reinforcing their control over the city took control of the VPF secretariat office. They found around 150 people, including women and children, having taken their quarters in the building. Interrogated by the NDRA, they replied that because of the continuing fear of attacks against them, they had taken refuge in the secretariat's premises to spend the night. After searching the premises, 16 Vanilia-manufactured weapons were found in one of the rooms located at the back of the building. When questioned about the weapons, the occupants said they knew nothing about them. The NDRA fighters then separated the women and children, and took the men along with them. The next morning, David Dabar declared that they had successfully thwarted an attempt of Vanilian forces, wearing civilian clothing, taking shelter in the VPF secretariat to imminently attack, in coordination with other forces entering Losovo, the new government of Losovo. 3.28. In the last week of June 2009, it was reported by the media that the

camps, in which Lemis were kept since the 10 February 2009, were

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evacuated and the people were allowed to go. It was further reported that most had not returned to Rizoba. It was unclear whether they had been prevented to return or did not wish to return because of the security situation. 3.29. As the situation worsened, on 6 July 2009, the Minota Economic

Forum (MEF), a regional organization working for economic co-operation in the region, appealed to all parties to restrain themselves and to declare a ceasefire, and requested the United Nations Security Council to intervene in the matter. It further invited the Vanilian government and the FDP to Geneva to negotiate a solution to the conflict. The Vanilian government expressed its willingness and nominated a ten-member delegation. The FDP also expressed its willingness to send a delegation provided that the issue of secession remained non-negotiable. The FDP nominated its delegation headed by Mr. William Tanatia, the Minister for Foreign Affairs of the interim government of Losovo. 3.30. Based on the warrant issued by the ICC Prosecutor, and confirmed

by a pre-trial chamber of the ICC, plain-clothed Vanilian security forces took David Dabar into custody from his residence in Rizoba on 5 August 2009 and surrendered him to the ICC for trial.

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4.

SUMMARY OF PLEADINGS 4.1. CLAIM 1 Crime against humanity of deportation or forcible transfer of population. Applicant submits that the respondent has committed the crime against humanity of deportation or forcible transfer of population in relation to the acts committed during the incidents that took place in Rizoba city on or about the 3rd and 12th of February 2009 amounting to a violation of Article 7(1)(d) of the Statute of International Criminal Court. Applicant also submits that, Vanilia being signatories of the Four Geneva Conventions and the Additional Protocols, respondent has violated the provisions of such treaties so signed. 4.2. CLAIM 2 War Crime of Taking Hostages Applicant submits that the respondent has committed the war crime of taking hostages in relation to the acts committed during the incidents that took place in Rizoba city on or about the 12th of February 2009 and thereafter amounting to a violation of Article 8(3)(c)(iii) of the Statute of International Criminal Court. Applicant also submits that, Vanilia being signatories of the Four Geneva Conventions and the Additional Protocols, respondent has violated the provisions of such treaties so signed. 4.1 CLAIM 3 War Crime of Willful Killing

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Applicant submits that the respondent has committed the war crime of wilful killing in relation to the acts committed during the incidents that took place in Rizoba city on or about the 10th of June 2009 and thereafter amounting to a violation of Article 8(2)(a)(i) of the Statute of International Criminal Court. Applicant also submits that, Vanilia being signatories of the Four Geneva Conventions and the Additional Protocols, respondent has violated the provisions of such treaties so signed.

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5.

PLEADINGS PROPER 5.1 CLAIMS 5.1.1 CLAIM 1 Applicant submits that the respondent has violated Article 7 (1) (d) of the Statute of ICC. Applicant submits that the acts committed by respondent characterized the existence of the elements of the crime. 1. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts. Under the Statute of the ICC, "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law. The term forcibly is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or Page 15 of 25

persons or another person, or by taking advantage of a coercive environment.1 In this context, the positive confirmation of Vanilias authorities of the expulsion of the Lemis out of Losovo and the fact that their return is predicated on Losovos achievement of independence and on the condition that they would swear allegiance to its new state bear out the existence of the first element. 2. Such person or persons were lawfully present in the area from which they were so deported or transferred. The fact that the Lemis had inhabited Vanilia even prior to its independence establishes the lawful presence of the Lemis in Losovo. 3. The perpetrator was aware of the factual

circumstances that established the lawfulness of such presence. The fact that the perpetrator is part of the FDP, who openly claims to protect the interests of the Nomags, as against the Lemis, shows his awareness of the factual circumstances that established the lawfulness of the Lemis presence. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

United Nations Doc. PCNICC/2000/1/Add.2 n.5, 12 [2000] Page 16 of 25

Attack directed against a civilian population in these context is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. The acts need not constitute a military attack. It is understood that policy to commit such attack requires that the State or organization actively promote or encourage such an attack against a civilian population.2 Also, Article 13 (2) of the Protocol II of 1977 provides that the civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.3 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. The acquiescence of the perpetrator and his subsequent statement evince his knowledge of the end-goal of the conduct. The last two elements for each crime against humanity describe the context in which the conduct must take place. These elements clarify the requisite participation in and knowledge of a widespread or systematic attack against a United Nations Doc. PCNICC/2000/1/Add.2, Introduction to Article 7 [3], [2000] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
2 3

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civilian population. However, the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack.4 Further, Article 49 of the Fourth Geneva Convention and Article 17 of Protocol II allow total or partial evacuation of the population if the security of the population or imperative military reasons so demand. Article 49, however, specifies that persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. Dabar, as the head of the NDRA and a figurehead of the NSA, however, failed to meet the requirement provided for under the aforementioned. Thus violating Article 13 of the Universal Declaration of Human Rights5 and Article 7 (1) (d) of the Rome Statute. 5.1.2 CLAIM 2 Applicant submits that the respondent has violated Article 8 (2)(c)(iii) of the Statute of ICC.

United Nations Doc. PCNICC/2000/1/Add.2, Introduction to Article 7 [2], [2000] Article 13 Everyone has the right to freedom of movement and residence within the borders of each stateUN General Assembly Resolution 217(III) A (A/RES/217(III) A) of December 10, 1948: Universal Declaration of Human Rights
4

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Applicant submits that the acts committed by respondent characterized the existence of the elements of the crime. Elements: 1. The perpetrator seized, detained or otherwise held hostage one or more persons. The purpose of the occupation of Pleasant Gardens was unfounded. Whatever the reasons of the NDRA, be it patriotic or not, it is unlawful as an aggregate of the Vanilian government and, moreover, forcible abduction of persons qualifies as taking of hostages. The NDRAs assertions are all but baseless conjectures cloaked in the form of a peaceful revolution A hostage is defined as A person seized or held as security for the fulfilment of a condition6 and as the same source defines, a perpetrator is a person who carries out or commits a harmful, illegal or an immoral action7 As evinced in several instances, the NSA, a faction of NDRA, divided the groups of the Lemis to men and women, the purpose of which is not for a utopia for Nomads and Lemis alike, but a devious and ruthless way to attain sovereignty. 2. The perpetrator threatened to kill, injure or continue to detain such person or persons.
6 7

Concise Oxford Dictionary 2004 11e Concise Oxford Dictionary 2004 11e Page 19 of 25

As aforementioned, NDRAs constituent, NSA executed the taking of hostages. In the February 12 incident, the only evidence available was derived from the Media, ergo not direct evidence per se. However, it can be reasonably inferred from the acts subsequent to February 12 that the real purpose was to secure the secessionist stand of the NDRA, and that is through force, i.e. infliction of physical harm to ferret out submission. 3. The perpetrator intended to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons. There already exist armed hostilities between the opposing parties. The NDRA purposely disobeyed the mandate of its government by waging a civil war for its vie of independence. By securing Pleasant Gardens, the NDRA is making it absolutely certain that no foreign power may obstruct their propaganda. 4. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. The people involved are men, women and children, all of which are inhabitants and residents of Rizoba. There was no evidence supporting that they are in fact part of the antisecessionist stand of the government of Vanilia.

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5.

The

perpetrator

was

aware

of

the

factual

circumstances that established this status. While it is true that mere existence in an occasion does not necessarily follow knowledge of the status, as ascertained in the incident on February 12, what is more reasonably possible and in fact ascertainable is the June 10 incident wherein Dabar, himself, affirmed the taking of hostages himself through declaration. It then intertwines the two incidents, February 12 and June 10 in tune with each other as Dabar being the facilitator, and hence follows knowledge. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. The conflict was within Vanilia itself and not International entities. The aggression between the Vanilian government and the NDRA was precedent, and the ratification of foreign entities is an offspring of the violent usurpation of the NDRA of Losovo. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. The goal was liberation and what was given by Dabar in his speech in Rizoba was an admission of past acts, and as such, contemplates awareness of armed conflict. The cause of liberation spoken of can be informed by considering the

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events that transpired. Finally, announcing the declaration of independence signifies knowledge of this fact. 5.1.3 CLAIM 3 Applicant submits that the respondent has violated Article 8 (2)(a)(i) of the Statute of ICC. Applicant submits that the acts committed by respondent characterized the existence of the elements of the crime.
Elements of Crimes 1. The perpetrator killed one or more persons.

In view of the fact that neither a sign of life nor remains of the rest of the people held captive by Dabar, we respectfully conclude that the captives were killed by Dabar and submit for the conviction of him for the crime of Willful Killing under the Rome Statute. The term killed is interchangeable with the term caused death.8 Thus, we need not establish the existence of an active killing within the purview of the term killed; rather, the death of the remaining people fall under the term caused death which is more encompassing of the circumstances present.
2. Such person or persons were protected under one or more of the Geneva Conventions of 1949.

United Nations Doc. PCNICC/2000/1/Add.2 n. 31 (2000) Page 22 of 25

3. The perpetrator was aware of the factual circumstances that established that protected status.

Further, these people are protected under the Fourth Geneva Convention9 for being mere civilians who were just seeking refuge in the secretariats premises, much worse are the facts that women and children are among these people; the assertion of Dabar that they are Vanilian forces in civilian clothing is, at best, a wooden-iron, and the Vanilia-manufactured weapons allegedly found with them were never shown by Dabar, these facts only militate against the veracity of Dabars assertion and must thus fail.
4. The conduct took place in the context of and was associated with an international armed conflict and; 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

With respect to nationality, it is understood that the perpetrator needs only to know that the victim belonged to an adverse party to the conflict.10 The underlying fact is that Dabar well knew of the fact that the people are civilians of Vanilia yet still persisted with his iniquitous desire to eliminate them in the armed conflict. An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence

Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. 10 United Nations Doc. PCNICC/2000/1/Add.2 n. 33 (2000)
9

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between governmental authorities and organized armed groups or between such groups within a State.11 It is not disputed that an armed conflict exists between Dabars group and the VPF. There is no doubt that the killing occurred not only within the frame of, but in close relation to, that conflict. Lastly, there is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international12; In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international13, there is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms took place in the context of and was associated with.14

11

Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, IT-94-1AR72, 2 October 1995 (Tadi}Appeal I). 12 United Nations Doc. PCNICC/2000/1/Add.2 Introduction to Article 8 (a) (2000) 13 United Nations Doc. PCNICC/2000/1/Add.2 Intorduction to Article 8 (b) (2000) 14 United Nations Doc. PCNICC/2000/1/Add.2 Intorduction to Article 8 (c) (2000) Page 24 of 25

6.

RELIEF REQUESTED Wherefore, applicant submits that David Dabar has violated the provisions of the Statute of the ICC Wherefore the applicant prays that this court adjudge and declare; 7.1 that David Dabar is guilty of committing the crime against humanity of deportation or forcible transfer of population under Article 7 (1) (d) of the Statute of the ICC. 7.2 that David Dabar is guilty of committing the war crime of taking hostages under Article 8 (3) (c) (iii) of the Statute of the ICC. 7.3 that David Dabar is guilty of committing the war crime of willful killing under Article 8 (2) (a) (i) of the Statute of the ICC.

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