02D

ORIGINAL ENGLISH
NO.
DATE.
TRIAL CHAMBER
SITUATION IN RODINGA
IN THE CASE OF
THE PROSECUTOR v. BRIGADIER ZACHESU

AND
THE PROSECUTOR v. BRIGADIER VASVODINA
MEMORIAL FROM THE SIDE OF THE DEFENCE
SOURCE: OFFICE OF THE DEFENCE COUNSEL

TEAM CODE:02
-PRELIMINARIESTABLE OF CONTENTS
TABLE OF CONTENTS..................................................................................................................I
INDEX OF AUTHORITIES..............................................................................................................II
STATEMENT OF JURISDICTION.....................................................................................................1
IDENTIFICATION OF ISSUES.........................................................................................................1
STATEMENT OF FACTS................................................................................................................1
SUMMARY OF PLEADINGS...........................................................................................................2
PLEADINGS................................................................................................................................4
1.
That Brigadier Zachesu is not Liable for Crimes against humanity, for killing of
civilians on the night of 16 April 2012 at Rukama, under article 7 (1) (a) of the Rome
Statute............................................................................................................................... 4
1.1.
That the perpetrator did not kill one or more persons: Element 1 not satisfied.....4
1.2.
That the conduct was not committed as part of a widespread or systematic attack
directed against a civilian population- Element 2 not satisfied........................................4

1.3.
That the perpetrator did not know that the conduct was part of or intended the
conduct to be part of a widespread or systematic attack against a civilian populationElement 3 not satisfied....................................................................................................6
1.4.
2.
That there are sufficient grounds to exclude criminal responsibility......................7
That Brigadier Zachesu is liable for the War Crime of Murder under Article 8(2)
(c) (i) of the Rome Statute................................................................................................8

2.1.
That the perpetrator is not responsible for the killings- Element 1 not satisfied... .8
2.2.
That the victims were not hors de combat and the perpetrator was not aware of
factual circumstances establishing civilian status- Elements 2 and 3 not satisfied..........8

2.3.
That there was no armed conflict of a non-international character- Elements 4 not
satisfied......................................................................................................................... 10
1|PAGE
-MEMORIAL ON BEHALF OF THE DEFENCE-
-PRELIMINARIES3.
That Brigadier Vasvodina is not liable for the Crime against Humanity of
Enforced Disappearance under Article 7(1) (i) of the Rome Statute...........................11

3.1.
That the perpetrator didnt refuse to provide information on the fate or
whereabouts of the captured persons- Elements 1, 2 and 3 not satisfied......................11

3.2.
That AFD is not a political organization- Element 4 not satisfied........................14
3.3.
That the perpetrator didnt intend to remove the captured persons from protection
of law for a prolonged period of time- Element 5 not satisfied.......................................15

3.4.
That the conduct was not committed as a part of wide spread and systematic
attack directed against a civilian population- Element 6 not satisfied............................16

4.
That Brigadier Vasvodina is liable War Crimes, of excessive incidental death,
injury or damage, under article 8(2) (b) (iv) of the Rome Statute................................17
4.1.
That the damage caused was clearly excessive of the overall military advantage
anticipated- Element 2 not satisfied..............................................................................18

4.2.
The perpetrator didnt know of the disproportionality- Element 3 not satisfied....20
4.3.
The conduct did not take place in the context of or was not associated with an
international armed conflict- Element 4 not satisfied.....................................................21

PRAYER...................................................................................................................................23
INDEX OF AUTHORITIES
Statutes
Customary International Humanitarian Law..................................................................7, 9, 16
Elements of Crime, U.N. Doc. PCNICC/2000/1/Add.2 (2000).................4, 6, 8, 12, 17, 19, 20
Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol-I)...................18
Rome Statute of the International Criminal Court, A/CONF. 183/9, 17 July 1998........5, 6, 7, 9
2|PAGE
-PRELIMINARIESCases of International Criminal Tribunals

Prosecutor v Thomas Lubanga Dylio, Case No. ICC-01/04-01/06 (Trial Chamber I), 14
March 2012....................................................................................................................... 22
Prosecutor v. Akayesu, Case No. ICTR-96-40-T (Trial Judgment), 2 September 1998..........5
Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09 (Pre-Trial Chamber I), 4 March 2009. . .12
Prosecutor v. Banda and Jerbo, Case No. ICC-02/05-03/09 (Pre-Trial Chamber I), 7 March
2011.................................................................................................................................... 9
Prosecutor v. Blaskic, Case No. IT-95-14-T (Trial Chamber), 3 March 2000.....................5, 22
Prosecutor v. Delalic, Case No. IT-96-21-T (Trial Chamber), 16 November 1998.................10
Prosecutor v. orevi, Case No. IT-05-87/1-T, (Trial Chamber) 23 February 2011 11, 12, 13,
14, 17, 18, 20, 21
Prosecutor v. Galic, Case No. IT-98-29-A (Appeals Chamber), 30 November 2006.............10
Prosecutor v. Hadihasanovi and Kubura, Case No. IT-01-47-T(Trial Chamber), 15 March
2006.................................................................................................................................. 11
Prosecutor v. Halilovi, Case No. IT-01-48-T (Trial Chamber I, Section A), 16 November
2005.................................................................................................................................... 8
Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08 (Pre-Trial Chamber II),
15 June 2009...........................................................................................6, 9, 11, 13, 16, 17
Prosecutor v. Katanga, Case No. ICC-01/04-01/07 (Trial Chamber II), 7 March 2014............6
Prosecutor v. Kunarac, Case No. IT-96-23& IT-96-23/1-A (Appeals Chamber), 12 June 2002
......................................................................................................................................... 16
Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-803 (Pre-Trial Chamber I), 29 January
2007.................................................................................................................................. 11
Prosecutor v. Mbarushimana, Case No. ICC-01/04-01/10 (Pre-Trial Chamber I), 16
December 2011..................................................................................................................9
Prosecutor v. Mrksic, Case No. IT-95-13/1-T (Trial Chamber II), 27 September 2007............9
Prosecutor v. Perii, Case No. IT-04-81-T (Trial Chamber I), 6 September 2011..............5, 9
3|PAGE
-PRELIMINARIESProsecutor v. Stakic, Case No. IT-97-24-T (Trial Chamber II), 31 July 2003...........................5
Prosecutor v. Tadic, Case No. IT-94-1-T (Trial Chamber), 7 May 1997...........................10, 17
Public Prosecutor v. Rusdin Maubere, Case No. 23/2003 (Special Panels for Serious
Crimes, East Timor), July 5, 2004.....................................................................................16
Situation in the Republic of Kenya, Case No. ICC-01/09 (Pre-Trial Chamber II), 31 March
2010.................................................................................................................................. 16
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07717 (Pre-Trial Chamber I), 30 September 2008..................................................................4
United States v. Wilhelm List et al., (1948) 8 LRTWC 34..........................................13, 19, 20
Reports
Report of Committee III, Second Session (CDDH/215/Rev.1; XV, 263), in H.S. Levie,
Protection of War Victims: Protocol I to the 1949 Geneva Conventions, 11, at 276 (1980).
......................................................................................................................................... 18
Report of the International Law Commission to the General Assembly on the work of its
forty-eighth session, 6 May-26 July 1996, U.N. GAOR, 51st Sess., Supp. No.10, at 47,
U.N. Doc. A/51/10............................................................................................................... 4
Books
2 ICRC, Customary International Practice 216-222 (Jean-Marie Henckaerts, Louise
Doswald-Beck eds., Cambridge Univ. Press 2005)...........................................................17
Bruce Broomhall, Nullum Crimen Sine Lege, inCOMMENTARY ON THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT OBSERVERS NOTES, ARTICLE BY ARTICLE 713-729 (Otto
Triffterer ed., C. H. Beck 2008).........................................................................................14
COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT OBSERVERS
NOTES, ARTICLE BY ARTICLE 565 (Otto Triffterer ed., C. H. Beck 2008)..............................13
GERHARD WERLE, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW 755 (TMC Asser Press
2005)................................................................................................................................ 13
4|PAGE
-PRELIMINARIESGERHARD WERLE, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW 372 (TMC Asser Press 2005).
......................................................................................................................................... 21
INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERALS LEGAL
CENTER & SCHOOL,OPERATIONAL LAW HANDBOOK 330 (2014)............................................18
INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE ADDITIONAL PROTOCOLS
TO THE
GENEVA CONVENTIONS 2208 (Yves Sandoz et al. eds., Martinus Nijhoff 1987)....20
INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE ADDITIONAL PROTOCOLS

TO THE
GENEVA CONVENTIONS 303,306 (Yves Sandoz et al. eds., Martinus Nijhoff 1987).9
KAI AMBOS, TREATISE ON INTERNATIONAL CRIMINAL LAW, 111 (Oxford Univ. Press 2013).. 12, 14
KNUT DORMANN, ICRC ELEMENTS OF WAR CRIMES UNDER THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT: SOURCES AND COMMENTARY 131 (Cambridge Univ. Press
2003)................................................................................................................................ 21
2003)................................................................................................................................ 20
2003)................................................................................................................................ 19
Program on Humanitarian Policy and Conflict Research at Harvard University (HPCR),
Commentary on the HPCR Manual on International Law Applicable to Air and Missile
Warfare (The President and Fellows of Harvard College 2010) 44-5................................19
PROGRAM ON HUMANITARIAN POLICY AND CONFLICT RESEARCH, COMMENTARY ON THE HPCR
MANUAL ON INTERNATIONAL LAW APPLICABLE TO AIR AND MISSILE WARFARE 117-124
(Harvard University Press 2009).......................................................................................21
SANDESH SIVAKUMARAN, THE LAW OF NON INTERNATIONAL ARMED CONFLICTS, 19 (Oxford Univ.
Press 2012)................................................................................................................10, 22
5|PAGE
-PRELIMINARIESSANDESH SIVAKUMARAN, THE LAW OF NON INTERNATIONAL ARMED CONFLICTS, 223 (Oxford
Univ. Press 2012).............................................................................................................. 22
THE WAR REPORT: ARMED CONFLICT IN 2013 20 (Stuart Casey-Maslen ed., Oxford Univ.
Press 2014)...................................................................................................................... 10
THE WAR REPORT: ARMED CONFLICT IN 2013 23 (Stuart Casey-Maslen ed., Oxford Univ.
Press 2014)....................................................................................................................... 11
WILLIAM SCHABAS, THE INTERNATIONAL CRIMINAL COURT: COMMENTARY ON THE ROME STATUTE
475 (Oxford Univ. Press 2010)............................................................................................6
Articles
Alan Nissel, Continuing Crimes under the Rome Statute, 25MICH. J. INT'L L. 653, 655 & 699
(2003-2004); Blake v. Guatemala, Judgment (Merits), Inter-Am. Ct. H.R., 54-55 (January
24, 1998).......................................................................................................................... 12
BOMBING CIVILIANS: A TWENTIETH-CENTURY HISTORY 209 (Yuki Tanaka, Marilyn Young eds.,
New Press 2009).............................................................................................................. 21
Dalia Vitkauskait-Meurice, Justinas ilinskas, The Concept of Enforced Disappearances in
International
Law,
JURISPRUDENCE
197,
206
(2010),
available
at
www.mruni.eu/upload/iblock/934/9Vitkauskaite_Meurice.pdf............................................17
David Tuck, Detention by Armed Groups: Overcoming Challenges to Humanitarian Action,
93 INTL REV. OF THE RED Cross 759, 762 (September 2011)............................................15
Dr. Yael Ronen, Human Rights Obligations of Territorial Non-State Actors, 46 CORNELL INTL
L.J. 21, 47 (2013).............................................................................................................. 15
Eyal Benvenisti, Human Dignity in Combat: The Duty to Spare Enemy Civilians, 39 Israel L.
Rev. 81, 81, 82, 90 (2006)................................................................................................19
Gabriella Blum, The Dispensable Lives of Soldiers, 2 JOURNAL OF LEGAL ANALYSIS 69, 78
(2010)............................................................................................................................... 19
Jessica C. Lawrence, The First Eco-centric Environmental War Crime: The Limits of 8(2) (b)
(iv), 20 Georgetown Intl Environmental L. Rev. 61 (2007-2008).......................................21
6|PAGE
-PRELIMINARIESKAI AMBOS ET AL., DESAPARICIN FORZADA DE PERSONAS. ANLISIS COMPARADO E

INTERNACIONAL
246-247 (Deutsche Gesellschaft fr Technische Zusammenarbeit (GTZ)
GmbH
2009),
available
at
https://www.unifr.ch/ddp1/derechopenal/obrasportales/op_20110207_02.pdf...................14
Khushal Vibhute, The 2007 International Convention against Enforced Disappearance:
Some Reflections, 2 MIZAN L. REV. 287, 288 (2008).........................................................15
Kirsten Anderson, How effective is the International Convention for the Protection of all
Persons from Enforced Disappearance likely to be in holding Individuals Criminally
Responsible for acts of Enforced Disappearance?, 7MELB. J. INT'L L. 245, 250 (2006).. . .15
Mark A Drumbl, International Human Rights, International Humanitarian Law, and
Environmental Security: Can the International Criminal Court Bridge the Gaps?, 6 ILSA J
INTL & COMP L. 305, 308 (2000).......................................................................................18
NILS MELZER, ICRC, INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION IN
HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW16, 27, 36, 70-73(May 2009).........19
Nobuo Hayashi, Requirements of Military Necessity in International Humanitarian Law and
International Criminal Law,28 B.U. INT'L L.J. 39, 54 (2010); H. Mccoubrey, The Nature of
the Modern Doctrine of Military Necessity, 30 MIL. L. & L. WAR REV. 215, 220 (1991)......14
Nunca Ms, An Analysis of International Instruments on "Disappearances", 19 HUMAN
RIGHTS QUARTERLY 365, 377 (1997)..................................................................................16
Dictionary
13 J.A. SIMPSON & ESC WEINER, OXFORD ENGLISH DICTIONARY 494 (2d ed., Calrendon Press,
Oxford 1991)..................................................................................................................... 12
BLACKS LAW DICTIONARY 1394 (9h ed. 2009).......................................................................12
CAMBRIDGE LEARNERS DICTIONARY 543 (2d ed. 2005)..........................................................12
WEBSTERS ENCYCLOPAEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE 1567
(Deluxe ed., 2001)............................................................................................................ 12
Cases of Other Jurisdictions
7|PAGE
-PRELIMINARIESEl-Megreisi v. Libyan Arab Jamahiriya, Communication No. 440/1990, Views, Human Rights
Committee, 5.4 (March 23, 1994), U.N. Doc. CCPR/C/50/D/440/1990..........................16
Fairn-Garbi and Solis-Corrales v. Honduras, Judgment (Merits), Inter-Am. Ct. H.R., 121,
153 (March 15, 1981)........................................................................................................13
Godinez-Cruz v. Honduras, Judgment (Merits), Inter-Am. Ct. H.R., 153, 157 (January 20,
1989)................................................................................................................................ 13
Kurt v. Turkey, App. No. 24276/94, Judgment (Merits and Just Satisfaction), Eur. Ct. H.R.,
106 (May 25, 1998)........................................................................................................... 16
Lowson v. Percy Main and District Social Club, [1979] LCR 568, 574 (England)..................14
Quintin Dick, Re, [1926] 1 Ch. 992, 1006 (England).............................................................14
Velasquez Rodriguez v. Honduras, Judgment (Merits), Inter-Am. Ct. H.R., 147 (e) (July 29,
1988)................................................................................................................................ 16
Velasquez Rodriguez v. Honduras, Judgment (Merits), Inter-Am. Ct. H.R., 147, 149 (July
29, 1988).......................................................................................................................... 13
Conventions/ Declarations
International Convention for the Protection of All Persons from Enforced Disappearance, art
18, December 20, 2006, UN Doc. A/RES/61/177; Declaration on the Protection of All
Persons from Enforced Disappearance, art 10 (3), G.A. Res.47/133, U.N. Doc.
A/RES/47/133 (December, 1992)......................................................................................14
Other Resources
NATO forces raid secret Taliban Prison, Sydney Morning Herald, August 18, 2010,
http://news.smh.com.au/breaking-news-world/nato-forces-raid-secret-taliban-prison20100818-12fay.html........................................................................................................15
8|PAGE
-SUBMISSIONSSTATEMENT OF JURISDICTION
The Prosecutor, subsequent to investigation under Article 15 of Rome Statute of the
International Criminal Court [ICC], in pursuance of referral made by State parties under
Article 13 (a), has invoked jurisdiction of the Honourable International Criminal Court. The
court may exercise ratione materia jurisdiction in the present matter by virtue of Article 5 (b)
and (c). Henceforth, the accused humbly submits to jurisdiction of the Honourable court.
IDENTIFICATION OF ISSUES
I. Whether Brigadier Zachesu is liable for Crimes against Humanity, for killing of civilians on
the night of 16 April 2012 at Rukama, under article 7 (1) (a) of the Rome Statute?
II. Whether Brigadier Zachesu is liable for the War Crime of Murder under Article 8(2) (c) (i)
of the Rome Statute?
III. Whether Brigadier Vasvodina is liable for the Crime against Humanity of Enforced
Disappearance under Article 7(1) (i) of the Rome Statute?
IV. Whether Brigadier Vasvodina is liable War Crimes, of excessive incidental death, injury or
damage, under article 8(2) (b) (iv) of the Rome Statute?
STATEMENT OF FACTS
Background
Rodinga, having been disintegrated into five states with varied religious composition, gained
independence from Suzophia in 1970. RNDP came to power under the leadership of
President Ragoba. The governments extraction activities in Sinsalu and Kambhatka started
causing environment and health problems. This was resisted by a group of local intellectuals
organised as EFOR and the workers of RSRP, the opposition party who came to be united
as Army for Democracy [AFD], an organisation banned by government in1995. AFD
continued low-scale violence against the government until three sensational jailbreaks of
2011, after which it re-established its operational branch under leadership of Brigadier
Vasvodina.
1|PAGE
-SUBMISSIONSFirst series of attack

Brigadier Vasvodina led an attack on the mines of Sinsalu and Kambhatka, capturing 50
employees
and
50
Rodingan
paramilitary
personnel.
An
attempt
byInternational
Humanitarian Enforcement Agency [IHEA] to discover fate of the captured employees failed
since no communication links could be establish.Brigadier Zachesu entered Sinsalu to
liberate the mines and reached Rukama. He dropped pamphlets containing prior warning to
civilians instructing them to leave Rukuma. After reasonable time, the forces dropped shells
and drones on the positions of AFD. On entering the city, they found it deserted and pleaded
operational constraint to search for the missing civilians.
Second series of attack
AFD sought assistance of Zawalu, a neighbouring country, whose forces were functioning
under their own command. The government warned of a probable catastrophe which was
not acknowledged by Vasvodina, who launched an attack on Rekht city. Both sides engaged
in heavy arsenal fight which resulted in leakage of Agent X into Sanrole River, an important
source of drinking water for the city.
Ceasefire
A tripartite agreement was signed resulting in ceasefire, withdrawal of Zawalu, amendment
of Rodingan constitution and withdrawal of emergency. UN Peacekeeping forces were
deployed in Rodinga to keep peace. They discovered mass graves of almost 450 persons in
Rukama. The forensic report stated that the persons had died in heavy explosions and
asphyxiation was also the reason for some deaths. The Prosecutor initiated the present
proceedings in relation to allegations of violations of IHL by parties to the conflict.
SUMMARY OF PLEADINGS
I.
That Brigadier Zachesu is not liable for Crimes against Humanity, for killing of
Statute.
It is submitted that the accused is not liable for the crime, since the elements have not been
fully satisfied. Firstly, there is no evidence to prove that the perpetrator is liable for the
2|PAGE
-SUBMISSIONSdeaths. Secondly, the conduct was not a part of widespread and systematic attacks directed
against a civilian population and the perpetrator had no knowledge or intentwhatsoever.
Lastly, there are sufficient grounds to exclude criminal responsibility.
II.
That Brigadier Zachesu is not liable for the War Crime of Murder under Article 8(2) (c)
(i) of the Rome Statute.
It is submitted that the accused is not responsible for the above crime since the perpetrator
did not kill the remaining AFD fighters and civilians. Further, the AFD fighters did not qualify
to be combatants hors de combat and the perpetrator was not aware of the factual
circumstances establishing civilian status of victims. Lastly, the conduct was not associated
with a non-international armed conflict.
III.
That Brigadier Vasvodina is not liable for the Crime against Humanity of Enforced
Disappearance under Article 7(1) (i) of the Rome Statute.
It is submitted that the accused has not caused the enforced disappearance of fifty civilians
and paramilitaries since there was no refusal to give information in the present case
because refusal presupposes existence of a prior request. Also, AFD is not a political
organization and the perpetrator didnt intend to remove the captured persons from
protection of law for a prolonged period of time. Lastly, the accuseds conduct wasnot a part
of systematic and widespread attacks directed against a civilian population.
IV.
That Brigadier Vasvodina is not liable War Crimes, of excessive incidental death,
injury or damage, under article 8(2) (b) (iv) of the Rome Statute.
It is submitted that the defendant is not guilty of the war crime under 8(2)(b)(iv) because
Brigadier Vasvodina did not engage in a value judgment as to the proportionality in attack
nor was the damage so caused widespread, long term and severe as required by the
Statute. The nature of the conflict disapproves the element required for the guilt to be
proved.
3|PAGE
-SUBMISSIONSPLEADINGS
1. THAT BRIGADIER ZACHESU IS NOT LIABLE FOR CRIMES AGAINST HUMANITY, FOR KILLING OF
CIVILIANS ON THE NIGHT OF 16 APRIL 2012 AT RUKAMA, UNDER ARTICLE 7 (1) (A) OF THE
ROME STATUTE.
It is submitted that the defendant is not liable for Crimes against Humanity [CAH] of murder
since the elements of the offence are not being satisfied in the present case.
1.1. That the perpetrator did not kill one or more persons: Element 1 not satisfied.
The first element requires that the perpetrator killed or caused death 1 of one or more
persons. For act of murder to be committed the victim has to be dead and the death must
result from the act of murder 2. There is no material evidence present which proves beyond
reasonable doubt that Brigadier Zachesus forces are responsible for death of any civilian.
1.2. That the conduct was not committed as part of a widespread or systematic
attack directed against a civilian population- Element 2 not satisfied.
1.2.1. That the attack was neither widespread nor systematic in nature.
[A] Widespread attack: Inhumane acts [must] be committed on a large scale meaning that
the acts are directed against a multiplicity of victims. This requirement excludes an isolated
inhumane act committed by perpetrator acting on his initiative 3. Accordingly, in the context of
a widespread attack, the requirement of an organizational policy pursuant to article 7(2) (a)
of the Statute ensures that the attack, even if carried out over a large geographical area or
directed against a large number of victims, must still be thoroughly organized and follow a
regular pattern. In the present case no other acts of similar nature have been conducted by
the government forces which shows lack of a pattern and further that the defendant might
have acted on his own initiative.
1 Element 1, Article 7 (1) (a), Elements of Crime, U.N. Doc. PCNICC/2000/1/Add.2 (2000) [hereinafter
Elements of Crime].
2 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07-717 (Pre-Trial
Chamber I, ICC), 30 September 2008, 421 [hereinafter Katanga Pre-Trial].
3 Report of the International Law Commission to the General Assembly on the work of its forty-eighth session, 6
May-26 July 1996, U.N. GAOR, 51st Sess., Supp. No.10, at 47, U.N. Doc. A/51/10.
4|PAGE
-SUBMISSIONS[B] Systematic attack: The term "systematic" has been understood as either an organized
plan in furtherance of a common policy, which follows a regular pattern and results in
continuous commission of acts4. In order for an attack to be systematic in nature, a policy to
destroy, prosecute or weaken a community is required 5. Further there needs to be a
continuous commission of inhumane acts which are linked together 6. This continuity of
inhumane acts is lacking in the present case and hence it is not systematic in nature.
1.2.2. That the attack was not directed against civilian population.
The attack must have been directed against the civilian population means that [t]he civilian
population must be the primary object of attack 7. In order to determine whether the attack
may be said to have been so directed, the discriminatory nature of the attack, the nature of
the crimes committed in its course, the resistance to the assailants at the time and the extent
to which the attacking force may be said to have complied or attempted to comply with the
precautionary requirements of the laws of war should be considered 8. The compliance with
precautionary measures of war, sustaining of heavy losses before planning of attack 9 and
attacking positions of AFD fighters10 throws light on the fact that the population of the city
was not the primary object of the attack. An attack cannot be characterized as having been
4 Prosecutor v. Akayesu, Case No. ICTR-96-40-T (Trial Chamber, ICTR), 2 September 1998 580.
5 Prosecutor v. Blaskic, Case No. IT-95-14-T (Trial Chamber, ICTY), 3 March 2000, 203 [hereinafter Blaskic].
6 Id.at 203.
7 Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08 (Pre-Trial Chamber II, ICC), 15 June
2009, 76 [hereinafter Bemba].
8 Prosecutor v. Dragoljub Kunarac, Case No. IT-96-23-T (Trial Chamber, ICTY), 21 February 2001, 91.
9 Proposition, p. 9.
5|PAGE
-SUBMISSIONSdirected against only a limited and randomly selected group of individuals11. Further, the
dropping of pamphlets on 15th April
12
by defendant and then waiting for another two days
before launching the attack shows that the attack was never intended to be directed against
a civilian population.
1.2.3. That there was non-existence of an organizational or state policy.
The Statute imposes the additional requirement that the attack against any civilian
population be committed pursuant to or in furtherance of a State or organizational policy to
commit such attack13. The organization or State must actively promote or encourage the
attack against the civilian population14. There is no evidence in the facts of the case to
suggest the same in the present case.
1.3. That the perpetrator did not know that the conduct was part of or intended the
conduct to be part of a widespread or systematic attack against a civilian
population- Element 3 not satisfied.
The mens rea requirement of the crime is satisfied by reading third element of the crime
along with Article 30 of the Statute. Article 30 encompasses two forms of dolus, namely
dolus directus of first degree and dolus directus of second degree15. Existence of both of
these i.e. knowledge and intent can be inferred from relevant facts and circumstances.16
1.3.1.
That element of dolus directus of the first degree is not fulfilled.
11 Prosecutor v. Stakic, Case No. IT-97-24-T (Trial Chamber II, ICTY), 31 July 2003, 627.
13 Article 7(2) (a), Rome Statute of the International Criminal Court, A/CONF. 183/9, 17 July 1998 [hereinafter
ICC Statute].
14 Prosecutor v. Katanga, Case No. ICC-01/04-01/07 (Trial Chamber II, ICC), 7 March 2014, 1117 [hereinafter
Katanga Trial].
15
Bemba, 135.
16 General Introduction 3, Elements of Crimes.

6|PAGE
-SUBMISSIONSKnowledge is defined as awareness that a circumstance exists or a consequence will

occur in the ordinary course of events.17 It refers to the knowledge of the offender that his
acts or omissions will bring about material elements of the crime 18. Brigadier Zachesu had no
knowledge about the presence of any civilian objects in the Rukama city as pamphlets had
been dropped from helicopters earlier instructing all civilians to leave the city19.
1.3.2. That element of dolus directus of second degree is not fulfilled.
It means that the perpetrator intended or meant to engage in the conduct and was aware
about the consequences.20 There is plenty of evidence in the facts including the targeting of
specific positions of AFD fighters21 rather than using the technique of area bombardment
which shows that Brigadier Zachesu had no awareness that the attack would result in the
death of civilians.
1.4. That there are sufficient grounds to exclude criminal responsibility.
Article 31(3) states that other than those grounds stated in Article 31(1) the court may
consider other grounds which are derived from sources of laws stated under Article 21.
Article 21 (1) (b) states that principles derived from customary international law are to be
considered. It is humbly stated that all possible obligations on a military commander while
conducting a military operation were fulfilled by the defendant. In the conduct of military
operations, constant care must be taken to spare the civilian population, civilians and civilian
objects22and an effective advance warning of attacks which may affect the civilian population
17 Article 30 (3), ICC Statute.

18 W ILLIAM SCHABAS, THE INTERNATIONAL CRIMINAL COURT: COMMENTARY ON THE ROME STATUTE 475 (Oxford
Univ. Press 2010).
20 Article 30(3), ICC Statute.
7|PAGE
-SUBMISSIONSmust be given by the parties to the conflict unless circumstances do not permit 23. In the
present case the dropping of pamphlets before the commencement of military operation
shows that necessary precautions so as to protect the civilian population from the attack
were taken.
Further, no individual criminal responsibility can be attributed to Brigadier Zachesu as it
cannot be said that she herself either ordered, committed, contributed or assisted in
commission of these crimes so as to specifically target civilian population as their primary
objective as required by Article 25 of the Statute24.
The only responsibility, if any can be attributed to the defendant would that be of superior
responsibility25since the crimes were committed by the forces of the defendant and there is
no evidence so as to prove that he ordered them to commit the said crimes. Superior
responsibility solely is limited to his/her failure to perform the duties prescribed by
international law26. Since all the precautions that should be taken while launching a military
offence were fulfilled no liability can be affixed on the defendant for the said charges.
2. THAT BRIGADIER ZACHESU IS NOT LIABLE FOR THE WAR CRIME OF MURDER UNDER ARTICLE
8(2) (C) (I) OF THE ROME STATUTE.
Brigadier Zachesu may not be held liable for the murder of civilians and wounded AFD
fighters on the morning of April 17, 2012, since the elements of the offence are not being
satisfied.
22 Rule 15, Customary International Humanitarian Law.

23 Rule 20, Customary International Humanitarian Law.
24 Article 25, ICC Statute.
26 Prosecutor v. Halilovi, Case No. IT-01-48-T (Trial Chamber I, Section A, ICTY), 16 November 2005, 54.
8|PAGE
-SUBMISSIONS2.1. That the perpetrator is not responsible for the killings- Element 1 not satisfied.
In the present case, there is absence of any motive in pursuance of which Brigadier Zachesu
would have committed the alleged crimes. Further, the fact that Brigadier Zachesu had
entered forests of Sinsalu with the object of liberating coal mines along with the captured
persons27 implies that it was highly improbable on his part to carry out the alleged killings.
Furthermore, there is no clear indication that the alleged killings were carried out by
Brigadier Zachesus forces since the fact-sheet is silent regarding the identity of actual
perpetrators28. Hence, in absence of any motive to commit the crime and due to ambiguity
regarding the perpetrators identity, it may not be concluded that the perpetrators forces are
responsible for the crimes.
2.2. That the victims were not hors de combat and the perpetrator was not aware
of factual circumstances establishing civilian status- Elements 2 and 3 not
satisfied.
2.2.1. That the wounded AFD fighters were not hors de combat.
The offences under Article 8(2) (c) must be conducted against persons taking no active part
in hostilities, i.e. civilians or hors de combat.29The non-combatant status of individualsis
assessed on a case-by-case basis30 and can be drawn from the circumstances.31Further
members of an armed organization are not accorded civilian status, even when they are not
armed or in combat at the time of commission of the crime 32. Furthermore, not all wounded
29 Element 2, Article 8 (2) (c) (i)-1, Elements of Crime; Katanga Trial, 786.
30 Bemba, 237.
31 Prosecutor v. Mbarushimana, Case No.ICC-01/04-01/10 (Pre-Trial Chamber I, ICC), 16 December 2011,
191, 219 [hereinafter Mbarushimana].
32 Prosecutor v. Perii, Case No. IT-04-81-T (Trial Chamber I, ICTY), 6 September 2011, 92.
9|PAGE
-SUBMISSIONScombatants qualify to be hors de combat, and only those who refrain from hostile conduct 33
or those who are defenceless due to wounds 34 are treated as non-combatants. In the
present case, the circumstances under which the killings occurred are unknown, and no
evidence to prove that the wounded AFD fighters were indeed hors de combat has been
adduced. The onus to prove guilt of the accused is on the Prosecutor 35 and any reversal of
burden of proof upon the accused is impermissible36. Hence, it cannot be proved beyond
reasonable doubt by the Prosecutor that the AFD fighters are hors de combat.
2.2.2. That the perpetrator was not aware of the victims civilian status.
The war crimes under Article 8(2) (c) cannot be completed unless the perpetrator is aware of
the factual circumstances that established the victims status as persons taking no active
part in the hostilities.37The civilian status of individuals can be drawn only from the
circumstances of the given case.38 In the present case, the perpetrator had taken reasonable
measures to distinguish between combatants and civilians39 by dropping pamphlets
containing instructions to all civilians to leave Rukuma immediately.40 Hence, the perpetrator
could not have known the factual circumstances which established civilian status of the
victims since she couldnt have reasonably expected civilians in the city, and also, it was
33 INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE ADDITIONAL PROTOCOLS TO THE GENEVA
CONVENTIONS 303,306 (Yves Sandoz et al. eds., Martinus Nijhoff 1987).
34 Rule 47 (b), Customary International Humanitarian Law.

36 Article 67(1) (h), ICC Statute.
37Prosecutor v. Mrksic, Case No.IT-95-13/1-T (Trial Chamber II), 27 September 2007, 464; Prosecutor v.
Banda and Jerbo, Case No. ICC-02/05-03/09 (Pre-Trial Chamber I), 7 March 2011, 105.
38Mbarushimana, 191, 219.

39Rule 1, Customary International Humanitarian Law.
10 | P A G E
-SUBMISSIONSimpossible to discover the factual circumstances due to existing violence. The mensrea
requirement is met only if the crime was directed against civilians wilfully and the latter does
not incorporate mere negligence.41 Hence, the requisite dolus specialis is not present.
2.3. That there was no armed conflict of a non-international character- Elements 4
not satisfied.
An NIAC is a situation of regular and intense armed violence between the security forces of
the state, and one or more organized armed groups 42. However, NIACs shall be
distinguished from short-lived insurrections and terrorist activities which are not subject to
IHL.43 AFD is a terrorist organization, and was declared so by the government 44, and resorts
to similar means as terrorist organizations to achieve its objectives i.e. killing 45 and
abducting46 civilians. Further, in order to distinguish NIACs from cases of civil unrest or
terrorist activities, emphasis is given on the protracted extent of armed violence. 47 The
duration of armed conflict is of principal determining factor and a short period of fighting
wont amount to an NIAC.48 Furthermore, an individual attack does not amount to an armed
conflict49 and isolated or sporadic acts of violence are excluded 50. In the present case, the
instances of violence between government forces and AFD were irregular and were of low
41Prosecutor v. Galic, Case No.IT-98-29-A (Appeals Chamber), 30 November 2006, 140.
42Prosecutor v. Tadic, Case No.IT-94-1-T (Trial Chamber), 7 May 1997, 561 [hereinafter Tadic].
43Tadic, 562.
44Proposition, p.8.
47Prosecutor v. Delalic, Case No.IT-96-21-T (Trial Chamber), 16 November 1998, 184.
48SANDESH SIVAKUMARAN, THE LAW OF NON INTERNATIONAL ARMED CONFLICTS, 19 (Oxford Univ. Press 2012).
49THE WAR REPORT: ARMED CONFLICT IN 2013 20 (Stuart Casey-Maslen ed., Oxford Univ. Press 2014).
11 | P A G E
-SUBMISSIONSintensity. Further, the attack on Rukama was initiated in response to the abductions of
civilians by AFD, hence the same should be treated as a law enforcement operation, albeit
one involving military forces51. Furthermore, use of armed forces cannot be a determinative
factor for identifying an NIAC.52 Furthermore, an organised armed group must have the
ability to plan and carry out military operations for a prolonged period of time 53, which was
lacking in the present case, since AFD forces were defeated by government within a week 54,
after which support was sought from Zawalu 55. Also, though international involvement in the
conflict is an evidence to indicate an NIAC56, there was no such involvement when the
alleged crimes were committed. Hence, the violence had not reached the threshold of an
NIAC, at the time when the alleged crimes occurred.
3. THAT BRIGADIER VASVODINA IS NOT LIABLE FOR THE CRIME AGAINST HUMANITY OF
ENFORCED DISAPPEARANCE UNDER ARTICLE 7(1) (I) OF THE ROME STATUTE.
Brigadier Vasvodina may not be deemed liable for causing enforced disappearance of fifty
civilians and fifty paramilitary forces captured by Army for Democracy [AFD] during the
December 2011 strikes since the elements and requisite mens rea are not fulfilled.
50 Article 8(2) (d), ICC Statute; Prosecutor v. orevi, Case No. IT-05-87/1-T, (Trial Chamber) 23 February
2011, 1522.
51THE W AR REPORT: ARMED CONFLICT IN 2013 23 (Stuart Casey-Maslen ed., Oxford Univ. Press 2014).
52Id.at 22.
53Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-803 (Pre-Trial Chamber I), 29 January 2007, 234;
Bemba, 233.
56Prosecutor v. Hadihasanovi and Kubura, Case No.IT-01-47-T(Trial Chamber), 15 March 2006, 23.
12 | P A G E
-SUBMISSIONS3.1. That the perpetrator didnt refuse to provide information on the fate or
whereabouts of the captured persons- Elements 1, 2 and 3 not satisfied.
Enforced disappearance is a continuing crime which means that it may be carried out over a
long period of time until the perpetrator reveals the fate or whereabouts of the persons
deprived of liberty.57 However, this crime commences only when there is a refusal to
acknowledge deprivation of liberty or to give information about fate or whereabouts of the
persons.58To refuse means to express or show determination that one is not willing to do
something.59 In this case, there is no fact which indicates that Brigadier Vasvodina was
unwilling to reveal information on fate or whereabouts of detainees; instead evidence to the
contrary exists60. Further, the element of refusal is not being satisfied in light of the following
submissions.
3.1.1. That refusal must be preceded by a request to know fate or whereabouts.
The term refusal is often used in context of an existing offer or request. 61 According to
Websters Dictionary, to refuse means to declinetoaccept something offered or to decline to
give a request or demand.62Blacks Law Dictionary defines refusal as the denial or rejection
of something offered or demanded.63 A refusal to give information presupposes that an
interested person has inquired about the victims whereabouts in the first place. 64 The
57Alan Nissel, Continuing Crimes under the Rome Statute, 25MICH. J. INT'L L. 653, 655 & 699 (2003-2004);
Blake v. Guatemala, Judgment (Merits), Inter-Am. Ct. H.R., 54-55 (January 24, 1998).
58Elements 1 and 2, Article 7 (1) (i), Elements of Crime.

5913 J.A. SIMPSON & ESC WEINER, OXFORD ENGLISH DICTIONARY 494 (2d ed., Calrendon Press, Oxford 1991).
61CAMBRIDGE LEARNERS DICTIONARY 543 (2d ed. 2005).
62WEBSTERS ENCYCLOPAEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE 1567 (Deluxe ed., 2001).
63BLACKS LAW DICTIONARY 1394 (9h ed. 2009).
64KAI AMBOS, TREATISE ON INTERNATIONAL CRIMINAL LAW, 111 (Oxford Univ. Press 2013).
13 | P A G E
-SUBMISSIONSdefinition of a crime shall be strictly construed 65 and in cases of uncertainty, the interpretation
that is more favourable to the perpetrator shall be used 66. Thus, simple failure to provide
information without a prior request isnt enough to constitute crime of enforced
disappearance.67
3.1.2. That the perpetrator was not aware of any request in the present case.
[A] Requirement of mens rea not satisfied: Since no communication links could be
established between IHEA and AFD officials68, it is materially impossible that any request
regarding the captured persons reached AFD and that the perpetrator was aware of any
requests made by IHEA or about its consequences. Hence, there is absence of mens rea as
the perpetrator didnt intend nor possessed knowledge that he was making a refusal.
Mistake of fact can exclude criminal responsibility if it negates the mental elements 69 and
ignorance or lack of awareness of facts is considered at par with mistake of fact 70. The
perpetrator cannot intend, unless the evidence shows that he was at least aware that, in the
ordinary course of events71, the occurrence of such crimes was a virtually certain
consequence.72 Where room exists for an honest error in judgment, such army commander
is entitled to the benefit thereof by presumption of innocence.73
65Article 22 (2), ICC Statutes.
66Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09 (Pre-Trial Chamber I), 4 March 2009, 156.
67GERHARD W ERLE, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW 755 (TMC Asser Press 2005).
69Article 30(1), ICC Statutes.
70COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT OBSERVERS NOTES, ARTICLE BY
ARTICLE 565 (Otto Triffterer ed., C. H. Beck 2008).
71Article 30 (2) (b), ICC Statutes.

72Bemba, 368.
73United States v. Wilhelm List et al., (1948) 8 LRTWC 34.
14 | P A G E
-SUBMISSIONS[B] Facts of the case do not constitute refusal:In cases of enforced disappearance,
information relating to the victims must have been systematically denied by the authorities. 74
However, in the present case, there was no such denial of information to IHEA or other
persons with legitimate interest. To fail or omit is not the same as refuse or neglect and
hence where a person was ignorant about certain conditions, his failure to comply couldnt
be equated to refusal.75 Similarly, before penal liability can be imposed for refusal of
information, some unreasonable conduct must be shown and thus, where there was failure
to provide a written statement due to simple failure of communication, such failure didnt
amount to refusal.76 The court may rely on these judgements as these constitute general
principles of law derived national laws of legal systems77 and because analogies may be
used as a resort to interpret and fill gaps in the Rome Statute.78Hence, as there was a
material impossibility, which is a valid defence79, in providing information due to unavailability
of communication links, criminal liability cannot be extended to perpetrator.
3.2. That AFD is not a political organization- Element 4 not satisfied.
The term political organization used in Article 7(2) (i), ICC Statute must be interpreted more
narrowly.80 Since, the legal interest protected by enforced disappearance is the effective
access to administration of justice; the offence can only refer to organizations that grant such
74Godinez-Cruz v. Honduras, Judgment (Merits), Inter-Am. Ct. H.R., 153, 157 (January 20, 1989); Velasquez
Rodriguez v. Honduras, Judgment (Merits), Inter-Am. Ct. H.R., 147, 149 (July 29, 1988); Fairn-Garbi and
Solis-Corrales v. Honduras, Judgment (Merits), Inter-Am. Ct. H.R., 121, 153 (March 15, 1981).
75Quintin Dick, Re, [1926] 1 Ch. 992, 1006 (England).

76Lowson v. Percy Main and District Social Club, [1979] LCR 568, 574 (England).
77Article 21 (1) (c), ICC Statutes.
78 Bruce Broomhall, NullumCrimen Sine Lege,inCOMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL
CRIMINAL COURT OBSERVERS NOTES, ARTICLE BY ARTICLE 713-729 (Otto Triffterer ed.,C. H. Beck 2008).
79 Nobuo Hayashi, Requirements of Military Necessity in International Humanitarian Law and International
Criminal Law,28 B.U. INT'L L.J. 39, 54 (2010); H. Mccoubrey, The Nature of the Modern Doctrine of Military
Necessity, 30 MIL. L. & L. WAR REV. 215, 220 (1991).
15 | P A G E
-SUBMISSIONSan access.81 Also, since the punishability of the omission is premised on a duty to act, the
offence can only include organizations which have such a duty.82 AFD had no legal duty to
inform since the International and the UN Declaration cast obligations only upon states83
andat present, customary international human rights law does not seem to extend beyond
states, nor does treaty law.84 Further, other relevant provisions of the Geneva Conventions
also dont apply. Hence, AFD does not qualify to be a political organization.
3.3. That the perpetrator didnt intend to remove the captured persons from
protection of law for a prolonged period of time- Element 5 not satisfied.
The broad objective of enforced disappearances is to sow intimidation into the fabric of
society85 by removing political opponents from protection of law for a prolonged period of
time; thereby creating a situation of insecurity, fear and terror 86. However, in the present
case, no evidence suggests that AFD captured the said persons with the intent to disappear
them, since information about the captured persons was made available voluntarily, when
communication links could be established87. Moreover, in most cases, armed groups simply
hold internees until their release is convenient, as determined by security, and sometimes
81KAI AMBOS ET AL., DESAPARICINFORZADA DE PERSONAS.ANLISISCOMPARADO E INTERNACIONAL 246-247
(Deutsche GesellschaftfrTechnischeZusammenarbeit (GTZ) GmbH 2009), available at
https://www.unifr.ch/ddp1/derechopenal/obrasportales/op_20110207_02.pdf.
83 International Convention for the Protection of All Persons from Enforced Disappearance, art 18, December
20, 2006, UN Doc. A/RES/61/177; Declaration on the Protection of All Persons from Enforced Disappearance, art
10 (3), G.A. Res.47/133, U.N. Doc. A/RES/47/133 (December, 1992).
84Dr. Yael Ronen, Human Rights Obligations of Territorial Non-State Actors, 46 CORNELL INTL L.J. 21, 47
(2013).
85 Kirsten Anderson, How effective is the International Convention for the Protection of all Persons from
Enforced Disappearance likely to be in holding Individuals Criminally Responsible for acts of Enforced
Disappearance?, 7MELB. J. INT'L L. 245, 250 (2006).
86KhushalVibhute, The 2007 International Convention against Enforced Disappearance: Some Reflections, 2
MIZAN L. REV. 287, 288 (2008).
16 | P A G E
-SUBMISSIONSpolitical, considerations.88Revealing location of detention poses threat to lives and wellbeing

of detainees.89 For example, a military raid upon a Taliban detention facility to liberate
prisoners resulted in death of ve detainees.90 The facts suggest that persons were released
shortly after capture by AFD; hence there was no intention to hold them for a prolonged
period of time. Where an arrest was made, not for the purpose of keeping the victim
detained and in a hidden place, making not possible for him, to look for the authorities, but
with some other intention, the same didnt constitute disappearance. 91 Further, the phrase
prolonged period of time was added to exclude situations in which authorities momentarily
delay notification of arrest.92 In cases of enforced disappearance, the victim is secretly
detained for long periods of time, i.e. seven years 93, four years94, or three years95, and their
fate remained undisclosed till date. In the present case, the requirement of prolonged
period is not satisfied as the detainees were released within three months of capture.96
88 David Tuck, Detention by Armed Groups: Overcoming Challenges to Humanitarian Action, 93 INTL REV. OF
THE
RED Cross 759, 762 (September 2011).
89Id. at 764.
90NATO forces raid secret Taliban Prison, Sydney Morning Herald, August 18, 2010,
http://news.smh.com.au/breaking-news-world/nato-forces-raid-secret-taliban-prison-20100818-12fay.html.
91Public Prosecutor v. RusdinMaubere, Case No. 23/2003 (Special Panels for Serious Crimes, East Timor), July
5, 2004, 15.
92NuncaMs, An Analysis of International Instruments on "Disappearances", 19 HUMAN RIGHTS QUARTERLY 365,

377 (1997).
93Velasquez Rodriguez v. Honduras, Judgment (Merits), Inter-Am. Ct. H.R., 147 (e) (July 29, 1988).
94 Kurt v. Turkey, App. No. 24276/94, Judgment (Merits and Just Satisfaction), Eur. Ct. H.R., 106 (May 25,
1998).
95El-Megreisi v. Libyan Arab Jamahiriya, Communication No. 440/1990, Views, Human Rights Committee, 5.4
(March 23, 1994), U.N. Doc. CCPR/C/50/D/440/1990.
17 | P A G E
-SUBMISSIONS3.4. That the conduct was not committed as a part of wide spread and systematic
attack directed against a civilian population- Element 6 not satisfied
[A] Attack directed against civilian population: The civilian population shall be the primary
object of the attack97, and not just an incidental victim98. An attack is a campaign or operation
carried out against a civilian population.99 However, the attack by AFD on the mines does not
qualify as an attack against civilian population, as the mines were a military object since their
capture gives a definite military advantage to AFD 100. Economic targets that effectively
support military operations are also cited as an example of military objectives. 101 Further, the
mines also had a substantial presence of paramilitary forces. Hence, the attack was not
directed against civilian population, but civilians were only an incidental victim.
[B] Organizational Policy: There must be an organizational policy to direct attacks against a
civilian population.102 Spontaneous acts of violence wont fulfil the requirement of an
organizational policy.103 The attack must be thoroughly organized and follow a regular
pattern.104 An attack directed against civilian population is defined as multiple commission of
97Prosecutor v. Kunarac, Case No.IT-96-23& IT-96-23/1-A (Appeals Chamber), 12 June 2002, 91.
98Bemba, 76
99Situation in the Republic of Kenya, Case No. ICC-01/09 (Pre-Trial Chamber II), 31 March 2010, 80.
100Rule 8, Customary International Humanitarian Law.
101 2 ICRC, Customary International Practice 216-222 (Jean-Marie Henckaerts, Louise Doswald-Beck eds.,
Cambridge Univ. Press 2005).
102 Article 7(2) (a), ICC Statute.

103Bemba, 81.
104Katanga, 397.
18 | P A G E
-SUBMISSIONSacts referred to in Article 7(1) against civilian population. 105 However, in the present case, the
attack against civilian population i.e. enforced disappearance was spontaneous since the
persons were captured not with a premeditated plan, as it has been establishedearlier in the
submissions. Further, organizations behind policy to commit CAH shall be entities which
exercise de facto control over a particular territory, but without international recognition or
formal status of a de jure state.106 It has been emphasized that organisations must be very
close to de facto statehood, in order to be a subject of crimes against humanity.107AFD
cannot be a subject matter of this crime because it didnt exercise de facto control over
territory at the time of commission of offence, which didnt come until much later.108
4. THAT BRIGADIER VASVODINA IS NOT LIABLE FOR WAR CRIMES, OF EXCESSIVE INCIDENTAL
DEATH, INJURY OR DAMAGE, UNDER ARTICLE
8(2) (B) (IV) OF THE ROME STATUTE.
The defendant has allegedly caused disproportionate damage in comparison to the overall
military advantage anticipated by his attack on Rekht city. However, the accusations do not
hold true since the offence is disapproved owing to absence of the following elements.
4.1. That the damage caused was clearly excessive of the overall military
advantage anticipated- Element 2 not satisfied.
4.1.1. That the damage caused was not widespread, long-term and severe.
The crime prohibits commission of widespread, long-term and severe damage to the natural
environment,109 but neither the Rome Statute nor its Elements of Crimes defines those terms.
Thus, reliance can be placed on Additional Protocol I of the Geneva Convention.
105Article 30 (2) (b), ICC Statute.

106Tadic, 654.
107 Dalia Vitkauskait-Meurice, Justinasilinskas, The Concept of Enforced Disappearances in International
Law, 2 JURISPRUDENCE 197, 206 (2010), available at www.mruni.eu/upload/iblock/934/9Vitkauskaite_Meurice.pdf.
108Proposition, 11.
109 Article 8(2) (b) (iv), ICC Statute.
19 | P A G E
-SUBMISSIONSProtocol I prohibits methods or means of warfare which are intended, or may be expected, to
cause widespread, long-term and severe damage to the natural environment. 110 The
Protocol's travauxpreparatoires indicate that long-term refers to damage that lasts
decades.111 For further interpretation one may refer to the United States Army Judge
Advocate General School's Operational Law Handbook which interprets widespread as
meaning several hundred square kilometres and severe as any act that prejudices the
health or survival of the population. 112 All of these three elements must conjunctively be
proven.113 It is evident from the fact-sheet that the definition is not satisfied in this case.114
4.1.2. That there was anticipation of substantial military advantage.
In the dispute at hand, the defendants sought to gain control over the industrial town of
Rekht unlike the offer115 made by the Government forces. Further the overall military
advantage anticipated was the control over the States of Sinsalu, after having declared
independence of Kambhatka116 and to finally get their demands fulfilled. Some incidental
loss of civilian life might be foreseeable but still permissible if the requirements of reasonable
necessity and proportionality are met. As explained in United States v. List117during the
110 Article 35 (3), Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol-I).
111 Report of Committee III, Second Session (CDDH/215/Rev.1; XV, 263), in H.S. Levie, Protection of War
Victims: Protocol I to the 1949 Geneva Conventions, 11, at 276 (1980).
112INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERALS LEGAL CENTER &
SCHOOL,OPERATIONAL LAW HANDBOOK 330 (2014).
113 Mark A Drumbl, International Human Rights, International Humanitarian Law, and Environmental Security:
Can the International Criminal Court Bridge the Gaps?, 6 ILSA J INTL & COMP L. 305, 308 (2000).
114Proposition, 11.
115Id.
116Id.
20 | P A G E
-SUBMISSIONSsubsequent Nuremberg proceedings, "military necessity permits the destruction of life of

armed enemies and other persons whose destruction is incidentally unavoidable.118
Further, the provision differentiates concrete and direct military advantage with concrete
and direct overall military advantage. The drafting history indicates that overall was
included to ensure that the concept of military advantage would include advantages that
were planned to materialize at a later time and in a different place, 119 that may or may not
be temporally or geographically related to the object of the attack.120 State practice,
however, supports a relatively broad interpretation of the notion of the military advantage
that includes also the protection of one's own forces. 121 Military necessity thus is understood
to justify not only what is required to win the war, but also what reduces the risks of losses
or costs of the war.122
Another contention in this regard is that unequivocal indications of what constitutes a
military advantage' in the legal sense and the factors that determine its relative value are
largely absent123. Hence, the use of this term, more so in its novice form further renders the
provision124 ambiguous. The Rome Statute provides for construction of definition in favour of
118NILS MELZER, ICRC, INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER
INTERNATIONAL HUMANITARIAN LAW16, 27, 36, 70-73(May 2009).
119KNUT DORMANN, ICRC ELEMENTS OF WAR CRIMES UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL
COURT: SOURCES AND COMMENTARY 166 (Cambridge Univ. Press 2003).
120 Element 2, Article 8 (2) (b) (iv), Elements of Crime.

121 Program on Humanitarian Policy and Conflict Research at Harvard University (HPCR), Commentary on the
HPCR Manual on International Law Applicable to Air and Missile Warfare (The President and Fellows of Harvard
College 2010) 44-5.
122 Gabriella Blum, The Dispensable Lives of Soldiers, 2 JOURNAL OF LEGAL ANALYSIS 69, 78 (2010).
123EyalBenvenisti, Human Dignity in Combat: The Duty to Spare Enemy Civilians, 39 Israel L. Rev. 81, 81, 82,
90 (2006).

21 | P A G E
-SUBMISSIONSdefendant in case of ambiguity.125 In the dispute at hand, the ambiguity of the terms ought to
be interpreted in favour of the defendant in light of provisions of the Rome Statute.
4.2. The perpetrator didnt know of the disproportionality- Element 3 not satisfied.
Footnote 36126 requires foreseeability. Even if this system is based to some extent on a
subjective evaluation, the interpretation must above all be a question of common sense and
good faith for military commanders. In every attack they must carefully weigh up the
humanitarian and military interests at stake127. It is however a pure question of fact that a
perpetrator knew in advance that her intended attack would cause widespread, long-term
and severe damage to the non-human environment, and thus disputed.
Only the more specific knowledge, however, satisfies the requisite mens rea.128 The
elements limit the anticipated military advantage not to one that was reasonably
foreseeable; but to one that was foreseeable by the perpetrator at the relevant time. The
proposition may be relied upon, to conclude that a valued judgment was not made at all. The
Nuremberg Military Tribunal acquitted General LotharRendulic 129, on the ground that the
General honestly, though unreasonably, believed that policy was necessary in light of the
military situation as he perceived it at the time.130
125Article 22 (2), ICC Statute.

127INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE ADDITIONAL PROTOCOLS TO THE GENEVA
CONVENTIONS 2208 (Yves Sandoz et al. eds., Martinus Nijhoff 1987).

130Id.
22 | P A G E
-SUBMISSIONSEven an ignorant commander, one who did not know that proportionality analysis was
required, would have to be acquitted. 131 Indeed, a defendant who does not even pause to
consider whether an attack will likely cause incidental harm to civilians, or whether the
incidental harm it would cause is clearly excessive, lacks the required mental state and must
therefore be acquitted.132 This also disapproves the mental element as provided for in the
Statute.133 In the absence of a decision made, the defendant ought to be acquitted for a
judgment not made implies lack of knowledge required by the element.
Alternatively, the allegations of death of the civilians 134 cannot be treated as a war crime
against the defendant as the damage so caused was indirect and unforeseen. Killing of the
innocent in war can be licit only when it is done unintentionally. 135 Also, there is agreement
that remote or unforeseen indirect effects should not be factored in as damage. 136 In the
present dispute it is stated that the factories were closed down 137 and thus, the probability of
loss of civilian life was substantially low. The leakage of Agent X too is not foreseeable so
as to cause the damage so stated.
131 Jessica C. Lawrence, The First Eco-centric Environmental War Crime: The Limits of 8(2) (b)(iv), 20
Georgetown Intl Environmental L. Rev. 61 (2007-2008).
133Article 30, ICC Statute.

135BOMBING CIVILIANS: A TWENTIETH-CENTURY HISTORY 209 (Yuki Tanaka, Marilyn Young eds., New Press 2009).
136PROGRAM ON HUMANITARIAN POLICY AND CONFLICT RESEARCH, COMMENTARY ON THE HPCR MANUAL ON
INTERNATIONAL LAW APPLICABLE TO AIR AND MISSILE WARFARE 117-124 (Harvard University Press 2009).

23 | P A G E
-SUBMISSIONS4.3. The conduct did not take place in the context of or was not associated with an
international armed conflict- Element 4 not satisfied.
In situations where conflicts of a different nature take place on a single territory, it is
necessary to consider whether the criminal acts under consideration were committed as part
of an international or a non-international conflict.138
In the present case there was intervention by the neighbouring State of Zawalu. 139 When an
outside state intervenes on the side of the armed group, the fighting that takes place
between the government forces and the outside state is subject to the law of international
armed conflict, while the fighting that ensues between the government forces and the nonstate armed group remains subject to the law of non-international armed conflict.140
In a case of foreign intervention it was held that armed conflict between the State and the
armed group shall continue to be a NIAC as the cause was not difference arising between
two States.141 In the present case, Zawalus troops functioned under their own command 142
and thus, they did not have control over the acts of AFD, thus ensuring its independence.
It has been observed that, it is difficult to see why an on-going internal armed conflict should
suddenly and necessarily lose that character altogether because of foreign intervention. 143
What has to be determined is whether the armed group is acting as a proxy for the state, or
138GERHARD WERLE, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW 372 (TMC Asser Press 2005).
141Prosecutor v Thomas Lubanga Dylio, Case No. ICC-01/04-01/06 (Trial Chamber I), 14 March 2012, 563,
567.

143Blaskic, 275.
24 | P A G E
-SUBMISSIONSrather whether the two are but extremely close allies. 144 Here, this being not the case, the
conduct in question is not associated with an IAC. The attack was launched by the
defendant and his forces, there seems to be no relation to Zawalus concern with regards to
the war.
PRAYER
In the light of arguments advanced and authorities cited, the Defence humbly submits that
the Honourable Court may be pleased to adjudge and declare
In The Prosecutor v. Brigadier Zachesu
1. That Brigadier Zachesu is not liable for Crimes against Humanity, for killing of
Statute.
2. That Brigadier Zachesu is not liable for the War Crime of Murder under Article 8(2)
(c) (i) of the Rome Statute.
In The Prosecutor v. Brigadier Vasvodina
1. That Brigadier Vasvodina is not liable for the Crime against Humanity of Enforced
Disappearance under Article 7(1) (i) of the Rome Statute.
2. That Brigadier Vasvodina is not liable War Crimes, of excessive incidental death,
injury or damage, under article 8(2) (b) (iv) of the Rome Statute.
Orpass any other order as it deems fit.
25 | P A G E
-SUBMISSIONSSd/(Counsels for the Defence)
26 | P A G E

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ORIGINAL ENGLISH

THE PROSECUTOR v. BRIGADIER ZACHESU

MEMORIAL FROM THE SIDE OF THE DEFENCE

SOURCE: OFFICE OF THE DEFENCE COUNSEL

directed against a civilian population- Element 2 not satisfied........................................4

That there are sufficient grounds to exclude criminal responsibility......................7

(c) (i) of the Rome Statute................................................................................................8

factual circumstances establishing civilian status- Elements 2 and 3 not satisfied..........8

That there was no armed conflict of a non-international character- Elements 4 not

Enforced Disappearance under Article 7(1) (i) of the Rome Statute...........................11

That the perpetrator didnt refuse to provide information on the fate or

whereabouts of the captured persons- Elements 1, 2 and 3 not satisfied......................11

That AFD is not a political organization- Element 4 not satisfied........................14

of law for a prolonged period of time- Element 5 not satisfied.......................................15

attack directed against a civilian population- Element 6 not satisfied............................16

That Brigadier Vasvodina is liable War Crimes, of excessive incidental death,

anticipated- Element 2 not satisfied..............................................................................18

The perpetrator didnt know of the disproportionality- Element 3 not satisfied....20

international armed conflict- Element 4 not satisfied.....................................................21

-PRELIMINARIESCases of International Criminal Tribunals

INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE ADDITIONAL PROTOCOLS

-PRELIMINARIESKAI AMBOS ET AL., DESAPARICIN FORZADA DE PERSONAS. ANLISIS COMPARADO E

246-247 (Deutsche Gesellschaft fr Technische Zusammenarbeit (GTZ)

-SUBMISSIONSFirst series of attack

by defendant and then waiting for another two days

That element of dolus directus of the first degree is not fulfilled.

16 General Introduction 3, Elements of Crimes.

-SUBMISSIONSKnowledge is defined as awareness that a circumstance exists or a consequence will

17 Article 30 (3), ICC Statute.

22 Rule 15, Customary International Humanitarian Law.

34 Rule 47 (b), Customary International Humanitarian Law.

38Mbarushimana, 191, 219.

58Elements 1 and 2, Article 7 (1) (i), Elements of Crime.

71Article 30 (2) (b), ICC Statutes.

75Quintin Dick, Re, [1926] 1 Ch. 992, 1006 (England).

-SUBMISSIONSpolitical, considerations.88Revealing location of detention poses threat to lives and wellbeing

RED Cross 759, 762 (September 2011).

92NuncaMs, An Analysis of International Instruments on "Disappearances", 19 HUMAN RIGHTS QUARTERLY 365,

102 Article 7(2) (a), ICC Statute.

8(2) (B) (IV) OF THE ROME STATUTE.

105Article 30 (2) (b), ICC Statute.

-SUBMISSIONSsubsequent Nuremberg proceedings, "military necessity permits the destruction of life of

120 Element 2, Article 8 (2) (b) (iv), Elements of Crime.

124 Element 2, Article 8 (2) (b) (iv), Elements of Crime.

125Article 22 (2), ICC Statute.

128 Element 3, Article 8 (2) (b) (iv), Elements of Crime.

133Article 30, ICC Statute.

137 Proposition, p. 12.

142 Proposition, p. 12.

-SUBMISSIONSSd/(Counsels for the Defence)

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