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Respondent

[Word count: 1915]

IHLMOOT 12-06

. NATURE OF ARMED CONFLICTS

A. International Armed Conflict (IAC) and Non-international Armed Conflict (NIAC) NIAC is defined as armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties.1 The ICTY further defined it as protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.2 IAC is whenever there is a resort to armed force between two or more states.3

For a conflict to be identified as NIAC, there are two requirements: First, the hostilities must reach at least a minimum level of intensity, which means there is either hostilities of a collective character or a government if in circumstances where it is necessary for them to use military force against the insurgents. Second, nongovernmental groups involved in the conflict must be regarded as a party to the conflict by being under certain command structure and have the capacity to sustain military operations.

B. Applicability of Articles 8(2)(c) and (e) of Rome Statute of the International Criminal Court (The Statute) in IAC In this case, circumstances should be regarded as IACs. ICTY held that it may become international if another state intervenes in their conflicts through its troops or alternatively some of participants act on behalf of another state.4 This means that an internal armed conflict may be considered internationalized when a foreign state exercises overall control over one of the parties to the conflict through its troops or

1 2 3 4

Common Article 3, Geneva Conventions of 12 August 1949 (GC). The Prosecutor v. Tadic (Tadic case), IT-94-1-A, 70. Ibid., 70. Ibid., 84.

alternatively some of participants act on behalf of another state.5

In February 2003, FRB and Katoland dispatched troops to West Drakonia after conflict between Katoland and West Drakonia broke out. There are many circumstances supporting the fact that armed conflict between Katoland and West Drakonia has been internationalized with the intervention of FRB. Therefore, war crimes under Articles 8(2)(c) and (e) of the Statute cannot be pursued against Colonel Calley Jones (Jones), i. e. count 1(a) and (b), count 2(a) and (b) and count 3(b) are unreasonably charged against Jones.

. COUNT 1

Jones does not bear superior responsibility for the treatment of detained persons in the towns of Argus and Corti in September 2010 and in the following months pursuant to Articles 8(2)(c)(ii) and 28(a) of the Statute.

A. Superior Responsibility

In order to bear superior responsibility under Article 28 of the Statute, there are cumulative conditions to be fulfilled as follows: a superior-subordinate relationship;6 the superiors actual or constructive knowledge of crimes committed or about to be committed by subordinates;7 and failure of the superior to take adequate measures to prevent or repress the crimes.8 In superior-subordinate relationships, the superior must have control over his subordinates.9 Necessary and reasonable measures are such that can be taken within the competence of a commander as evidenced by the degree of effective control he weighed over his subordinates.10

5 6

Ibid, 84. Prosecutor v. Aleksovsky, ICTY-IT-95-14/1-T, 78. 7 Prosecutor v. Delalic (Delalic case), ICTY-IT-96-21-T, 346. 8 Prosecutor v. Krnojelac, ICTY-IT-97-25-T, 95. 9 Prosecutor v. Kayeshima, ICTY-IT-97-25-T, 95. 10 Prosecutor v. Blaskic, IT-95-14-A, 66.

Article 28 of the Statute requires two different levels of mens rea: negligence for military superior and; recklessness for civilian superior. In the present case, Jones is not a military commander of NCC, KAF and KESA. The KAF is executive organization which is ultimately in the hands of the President of Katoland, Stark. President Stark is the chairman of NCC and the Head of the KESA was appointed as one of the NCC members. Moreover, he falls short of holding the effective control which is defined as the material ability to prevent and punish commission of the offences. 11 Therefore, Jones does not bear superior responsibility for the accused crimes of outrages upon personal dignity.

B. War Crime of Outrages upon Personal Dignity Civilians are defined as all persons who are neither members of the armed forces of a party to the conflict nor participants in a levee en masse.12 Direct participation in hostilities refers to specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict.13
14

Protection of civilians may

cease entirely or be reduced or suspended when civilians abuse their rights to be protected against direct attack. Thus, possession of weapons by civilians would lead to cease such rights.

In September 2010 and in the following months, the detention was enacted for substantial military necessity. The arrest for interrogation was prompted because the KAF found weapon caches in Corti which were likely enough to harm KAF. Also the detainees were believed to be associated with or supporting DNA militias. Furthermore, Katoland authorities took every necessary step to give a fair treatment and sufficient detention conditions to the detainees as far as circumstances allowed.
11 12 13 14

Judgment, Delalic case, 378. Nils Merzer, Direct Participation in Hostilities, ICRC (2009), p. 16. Ibid, p. 16. Ibid, p. 43.

Thus, Jones is not responsible for the war crime under Article 8(2)(c)(ii) of the Statute.

. COUNT 2

Jones is not criminally liable for denying access to medical treatment and the confiscation of medical vehicles in the town of Corti in September 2010 pursuant to Articles 8(2)(c)(ii) and 25(3)(b) of the Statute.

A. Superior Orders and Prescription of Law

Jones should be exempted from criminal responsibility under Article 33 of the Statute. Criminal responsibility of a perpetrator pursuant to an order of a government or of a superior shall be relieved under following cumulative conditions: the person was legally obliged to obey the orders in question; the person did not know that the order was unlawful; and the order not manifestly unlawful.15

Jones and his subordinates who implemented the instructions were evidently under a legal obligation to obey the orders from the central command. Furthermore, it is unreasonable to expect them to consider the instruction as unlawful since it was issued as security measures with military necessity. Lastly, as accused crime does not either correspond to either genocide or crimes against humanity,16 the order cannot be regarded as manifestly unlawful.

B. Individual Criminal Responsibility

15 16

Article 33(1), the Statute. Article 33(2), the Statute.

In order to hold the accused liable under Article 25(3)(b) of the Statute, it is necessary to prove: a superior-subordinate relationship; an ordering persons use of his authority to cause another person to commit a crime; the intent for the crime to be committed or awareness of the substantial likelihood that the commission would result from his conduct; and the knowledge or intent along with above mentioned elements.17
18

In the present case, searches and identifications of medical vehicles were instructed due to the reported uses of ambulances as transport of militias and ammunition, and firing from an ambulance. Jones ordered not to commit accused criminal acts but to search the transportations as security measures. The instruction was pertinent in such circumstance where substantial probability of other losses of lives is highly expected.

Thus, Jones does not bear individual criminal responsibility for the war crime of outrages upon personal dignity.

C. War Crime of Outrages upon Personal Dignity

To the fullest extent of the means available to it, Katoland as the Occupying Power is obliged to ensure medical supplies of the population.19 The protection to which medical transports are entitled shall not be ceased unless they are used to commit hostile acts outside their humanitarian function.20

In this case, the protection of the Occupied population was justifiably withheld because they misused the recognized emblem of Red Cross. 21 Around September 2010 in Corti, they used ambulances displaying Red Cross emblems to transport armed persons and ammunition, and also fired two soldiers to death using the
17 18 19 20 21

Prosecutor v. Nyiramasuhuko et al, ICTR-98-42-T, 5593. Article 30, the Statute. Article 55, GC. Article 13(1), Additional Protocol (AP). Article 28, AP.

ambulance.

A belligerent is entitled to do whatever that is necessary by the military in order to win the war, provided that the act is a lawful security measure.22 The searches of medical transports were indispensable to ensure the security of KAF. It was found that two victims of the instruction were DNA sympathizers passing through the control posts, which showed possibility of de facto relationship with DNA. Further, the searches were enacted only on transports going through control posts where ordinary civilians would rarely expected to pass through. Thus, the new instruction righteously balanced the public right of health and military necessity.

Therefore, it is unacceptable that Jones had intent to commit such outrages upon personal dignity, so Jones is not liable for the war crime under the Article 8(2)(c)(ii) of the Statute.

. COUNT 3

Jones cannot be held criminally liable for the cyber-attack on the power station in Bargo in December 2010 pursuant to Articles 8(2)(b)(iv) and 25(3)(d) of the Statute.

A. Individual Criminal Responsibility

The Article 25(3)(d) of the Statute requires a contribution to a crime committed or attempted by a group. Mens rea required has two components: the person giving the assistance must aim at furthering the criminal activity of the group or its purpose; or must be aware of the groups intent to commit a crime.

22

Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge (2005), p. 18.

In this case, it is not sufficient to prove both that Katoland Council intended and actually committed a group crime, and that Jones had relevant intent or knowledge about such crime. Jones could not be responsible for the cyber-attack simply based on presumptions by the commentators. No public investigation took place clarifying where the responsibility lies. President Stark and Jones merely felt necessity to control over West Drakonia, including Mesto, and Katoland forces stationed tanks and artillery in the hills overlooking the Mesto River. Thus, it cannot be sufficiently found that Jones had knowledge or intent to contribute to the accused group crime.

B. War Crime of Attacking Civilians Cyber-attack cannot be treated as attack in the context of armed conflict. Further, armed conflict had not been existed when the cyber-attack was occurred. The term attacks is defined as acts of violence against the adversary, whether in offence or in defense.23 The concept of attack in this provision refers to the use of armed force to carry out a military operation during the course of an armed conflict.24 However, computer network attacks, which include cyber-attacks, are operations to disrupt, deny, degrade, or destroy information residing in computers and computer networks, or the computers and networks themselves. 25 Computer operations, which merely have contact with the operators computer, do not exert any physical force to the targeted objects. The expended interpretation would be against criminal defendants rights if cyber-attack is placed under the category of attacks.

Further, ICTY stated that "an armed conflict exists whenever there is a resort to armed force between States".26 Yet, according to the given facts, no armed conflict existed between FRB and Katoland when the cyber-attack was launched. Moreover, the Head of KESA, Katoland and President Stark, whom commentators supposed to
23 24 25 26

Article 49(1), AP. C. Pilloud et al, Commentary on the Additional Protocols, Y. Sandoz et al, ICRC (1987), p. 603. M. N Scmitt, Wired Warfare: Computer Network Attack and Jus in Bello , 84 ICRC (2002), p. 367. Tadic case, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2, 70.

be involved in the accused crime, do not belong to armed forces. Thus, war crime under Article 8(2)(b)(iv) of the ICC Statute cannot be satisfied and pursued against Jones.