MEMORIAL FOR THE DEFENSE

The Statute of the International Criminal Court defines war

crimes as, inter alia, serious violations of the laws and

customs applicable in international armed conflict and

serious violations of the laws and customs applicable in an

armed conflict not of an international character.[1]

The Statutes of the International Criminal Tribunals

for the former Yugoslavia and for Rwanda and of the

Special Court for Sierra Leone and UNTAET Regulation No.

2000/15 for East Timor also provide jurisdiction over

serious violations of international humanitarian law.[2]

In the Delali case in 2001, in interpreting Article 3 of

the Statute of the International Criminal Tribunal for the

former Yugoslavia listing the violations of the laws or

customs of war over which the Tribunal has jurisdiction,

the Appeals Chamber stated that the expression laws

and customs of war included all laws and customs of

war in addition to those listed in the Article.[3] The

adjective serious in conjunction with violations is to

 be found in the military manuals and legislation of

several States.

I. Charge of Forcible Transfer of the Hostages

Under Article 7(1)(d), the crime against humanity of

deportation and forcible transfer requires five elements to wit:

1. The perpetrator deported or forcibly12 transferred, 13

without grounds permitted under international law, one or more

persons to another State or location, by expulsion or other

coercive acts

2. Such person or persons were lawfully present in the area

from which they were so deported or transferred.

3. The perpetrator was aware of the factual circumstances that

established the lawfulness of such presence.

4. The conduct was committed as part of a widespread or

systematic attack directed against a civilian population.

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.

In the present case, Dabar allegedly conducts on February 3

and 12 of 2009, the defense appears before the law

establishing the fact that Dabar failed to meet the 3 material

elements in this provision. Hence, it is a burden to prove on the

allege Charge of forcible transfer of the hostages.

As to the charge of personally taking of the Hostages

under Art. 8 of the Statute of International Criminal

Court for the Attacks committed in Riboza.

Under Section 8 of the Statute of International Criminal, there

are 7 elements that needs to be considered before Dabar can

be prosecuted to wit;

1. The perpetrator seized, detained or otherwise held hostage

one or more persons

2. The perpetrator threatened to kill, injure or continue to

detain such person or persons.

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.

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. 1

5. The perpetrator was aware of the factual circumstances that

established this status.

6. The conduct took place in the context of and was associated

with an armed conflict not of an international character .

7. The perpetrator was aware of factual circumstances that

established the existence of an armed conflict.

Due to inability of the prosecution to examine the complexity of

the case pertaining to the elements being established under

Article 8 Section 2 paragraph d, the allegations toward

Dabar can be withdrawn without prejudice under the provisions

of the Statute International Court of Justice on Hostage taking

and attacks in Riboza.

1 file:///D:/ext101-files/Downloads/statute-of-the-international-criminal-court-article-
8.pdfhttps://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-
45BF9DE73D56/0/ElementsOfCrimesEng.pdf
 II. As Dabar was being charge of killing in Riboza

Pursuant to Art. 8 (a) (2) (i), there are five elements that must

be considered:

1. The perpetrator killed one or more persons

2. Such person or persons were protected under one or more of

the Geneva Conventions of 1949.

3. The perpetrator was aware of the factual circumstances that

established that protected status

4. The conduct took place in the context of and was associated

with an international armed conflict.

5. The perpetrator was aware of factual circumstances that

established the existence of an armed conflict

These are the five elements that will help the respondents

argument to fly base on the facts and circumstance in relation

to the present case and allegations being against Dabar.

III. As to the warrant being issued by the prosecutor

and confirmed by the ICC pre trial chamber.

Under Rule 158, Prosecution of War Crimes states that:

States must investigate war crimes allegedly

committed by their nationals or armed forces, or on

their territory, and, if appropriate, prosecute the

suspects. They must also investigate other war crimes

over which they have jurisdiction and, if appropriate,

prosecute the suspects.

There was no clear and substantial evidence that could help

support the claims that Dabar spearheaded the killing of

hostages sometime in June since the NDRC already set the

premise that those hostages are no longer under the custody.

There was no solid evidence provided for the tangible causal

link between the 15 human remains found.2

2 https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule157