TC: A23

CHANAKYA NATIONAL LAW UNIVERSITY

SPECIAL INTRA MOOT COURT COMPETITION
2017

BEFORE THE INTERNATIONAL CRIMINAL COURT

AT
THE HAGUE, NETHERLANDS

THE CASE CONCERNING CHARGES OF CRIMES AGAINST

HUMANITY AND WAR CRIMES

IN THE PRESENT MATTER INVOLVING:

THE PROSECUTOR v. MR. SENGOTA

(PROSECUTION) (DEFENCE)

WRITTEN MEMORIAL ON BEHALF OF THE PROSECUTION

AGENTS OF THE PROSECUTION

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ........................................................................................................................ iv

INDEX OF AUTHORITIES .......................................................................................................................... v
STATEMENT OF JURISDICTION .............................................................................................................. vii
QUESTIONS PRESENTED....................................................................................................................... viii
STATEMENT OF FACTS ........................................................................................................................... ix
SUMMARY OF PLEADINGS ..................................................................................................................... xi
PLEADINGS .............................................................................................................................................. 1
A. WHETHER MR SENGOTA CAN BE HELD LIABLE FOR CRIMES AGAINST HUMANITY ........................... 1
The elements of crime against humanity have been satisfied. .......................................................... 1
A.I. The attack was directed against a civilian population .................................................................. 1
A.2. The widespread or systematic element ...................................................................................... 2
A.2.1. The attacks were in furtherance of a common policy .............................................................. 3
A.3. Mr. Sengota had the mental element necessary. ....................................................................... 4
B. MR. SENGOTA’S INDIVIDUAL CRIMINAL RESPONSIBILITY AS A SUPERIOR ......................................... 5
B.1. The Court shall have jurisdiction over natural persons pursuant to this Statute. ....................... 5
B.2. Commits a crime within the court’s jurisdiction.......................................................................... 5
B.3. Orders, solicits or induces the commission of such a crime ........................................................ 5
B.3.I. Superior-subordinate responsibility .......................................................................................... 6
B.3.I.2 Subordinates under his or her effective authority and control ............................................... 6
B.3.I.2 His or her failure to exercise control properly over such subordinates .................................. 6
B.3.I.3 The superior knew or had reason to know that his subordinates would commit the crime .. 7
B.3.1.4 The superior did not take adequate measures to repress the crime ..................................... 8
C. WHETHER MR SENGOTA BE HELD LIABLE FOR WAR CRIMES. ............................................................ 9
The elements of war crimes have been satisfied. .............................................................................. 9
C.1. The Perpetrator directed an attack. ............................................................................................ 9
C.2. The perpetrator intended such building or buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals or places where the sick and
wounded are collected, which were not military objectives, to be the object of the attack. .......... 10
C.3. Mental element ......................................................................................................................... 11
C.4. There existed a non-international armed conflict. .................................................................... 12
C.4.1 The level of Intensity ............................................................................................................ 12

ii
 C.4.2 Organization in the Party ..................................................................................................... 13
C.5 The perpetrator was aware of factual circumstances that established the existence of an
armed conflict. .................................................................................................................................. 13
Violations of International Humanitarian Law committed during a non-international armed conflict14
PRAYER FOR RELIEF ....................................................................................................................... 16

iii
 LIST OF ABBREVIATIONS

ICTY International Criminal Tribunal For

The Former Yugoslavia
ICC International Criminal Court
ICTR International Criminal Tribunal For
Rwanda
MMR Mayavar For Mayavar Land

iv
 INDEX OF AUTHORITIES

Cases

Prosecutor v. Pavle Strugar, IT-01-42-T, International Criminal Tribunal for the former
Yugoslavia, 31 January 2005 ............................................................................................... 10
Prosecutor v Halilovic, (Appeals Chamber), Case No. IT-01-48-A, ICTY, 16 October 2007.. 8
Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal
Tribunal for Rwanda (ICTR), 2 September 1998, para 456............................................... 2, 6
Prosecutor v. Kunarac, Kovac and Vukovic (Appeal Judgement), IT-96-23 ICTY, 12 June
2002 ........................................................................................................................................ 1
Prosecutor v. Radislav Krstic, (Appeals chamber) ICTY, 19 April 2004 ................................. 6
Prosecutor v. Stanislav Galic,(Trial Chamber) Case no. IT-98-29-T, ICTY, 5 December 2003
............................................................................................................................................ 6, 8
Prosecutor v. Tihomir Blaskic (Appeal Judgement), IT-95-14-A, International Criminal
Tribunal for the former Yugoslavia (ICTY), 29 July 2004 ................................................ 1, 7
Prosecutor v.Delalic et al. (Trial Chamber) Case No.IT-96-21-T, ICTY, 16 November 1998
........................................................................................................................................ 6, 8, 9
The Prosecutor V. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, International Criminal Court,
27 September 2016 ............................................................................................................... 13
The Prosecutor v. Dusko Tadić, IT-94-1-AR72, (Appeals Chamber) ICTY, 2 October 1995,
para 316 .................................................................................................................................. 2
The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, International Criminal
Court, 21 June 2016 ....................................................................................................... 7, 8, 9
The Prosecutor v. Kupreskic (Trial chamber) ICTY IT-95-16-T, 14 January 2000.................. 4
The Prosecutor v. Ljube Boškoski and Johan Tarčulovski, (Trial Chamber) Case no. IT-04-
82-T, ICTY 10 July 2008 ...................................................................................................... 9

Other Authorities

Darryl Robinson, DefiningCrimes Against Humanity at the Rome Conference, 93The American
Journal of International Law, Jan. 1999, 43-57 .............................................................................. 1, 2
Elements of Crimes, (United Nations DOC. PCNICC/2000/1/ADD.2)...................................................... 9
International Covenant of the Red Cross, “Definition of War Crimes”,https://ihl-
databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule156 ........................................................... 11

v
Nikos Theodorakis, David P. Farrington,Emerging Challenges for Criminology: Drawing the Margins
of Crimes against Humanity ........................................................................................................... 1, 3

Statutes

Convenion for Safeguarding of Intangible Cultural Heritage, 2003 ...................................................... 14

Convention concerning the protection of world cultural and natural heritage of 1972 ...................... 14
Convention for Protection of Cultural Property in the event of armed conflict, 1954......................... 14
Convention for Safeguarding of the Intangible Cultural Heritage of 2003........................................... 10
Geneva Convention, 1949; Geneva Convention Additional Protocol II .................................................. 1
UN General Assembly, Rome Statute Of The International Criminal Court, (Last amended 2010) ....... 4

vi
 STATEMENT OF JURISDICTION

The instant matter has been submitted before the jurisdiction of the International Criminal
Court at Hague, The Netherlands, pursuant to the Rome Statute of the International Criminal
Court, 1998 by the prosecutors. The case has been referred pursuant to Paragraph (1) of
Article 5 read with Article 7 (1)(a) and Article 8 (2)(e)(iv) of the Rome Statue, 1998, Article
25 and 28 have been used to fix the liability of the defendant, subsequent to which the
prosecutors have undertaken to accept this Hon’ble Courts decision as final and binding upon
then commit to comply within its entirety and goodwill.

vii
 QUESTIONS PRESENTED

-A-

WHETHER MR. SENGOTA CAN BE HELD LIABLE FOR

CRIMES AGAINST HUMANITY UNDER INTERNATIONAL
CRIMINAL LAW

-B-

WHETHER MR. SENGOTA CAN BE HELD LIABLE FOR

WAR CRIMES UNDER INTERNATIONAL CRIMINAL LAW

viii
 STATEMENT OF FACTS

1. SOFTLAND is a state in the continent of Greatland, comprising of several ethnic

groups. The two major groups comprising 80% of the population are the
Kamilaethnicity 58% and Simlahi 22%. Of the five minorities, Kumis comprise of
12% of total population of 20 million.
2. RELIGIOUS DIFFERENCES AND STRAINS- while the Simlahis and Kamila
follow a similar form of the Mayavar religion, the Kumis practice a very different
version of the religion. Ritos are the religious heads of Kamilas and Zomi is the
religious head of the Kumis. The Kamilas believe in a uniform Mayavar religion and
feel that every follower must follow certain rituals and practices which Kumis reject.

3. KIMOCHI TORAMIS NOMINATED- Kimochi-Toramis are culturally significant

places for the Kumis, literally, God’s resting place, listed on the Representative List
of the Intangible Cultural Heritage of Humanity, under the Convention for the
Safeguarding of the Intangible Cultural Heritage of 2003.

4. DEMAND FOR A SEPARATE MAYAVAR LAND, ATTACKS APRIL 2015-

Kamilas demanded a separate land for the believers of the Mayavar religion and this
demand was met with stiff resistance from Kumis. Ethnic minorities were
attacked.The Government of Softland declared that making Mayavar as State religion
would only be feasible after consulting with the ethnic minority groups.
5. HOUSE OF ZOMI DESTROYED- the house of religious leader, Zomi in the city of
Vantalya was destroyed on 5 May 2015 and its responsibility taken by a group called
Mayavar for Mayavar Religion in a video by a masked man who said they would take
every reasonable step to attain eternal peace according to Mayavar belief system.
6. CONFIRMATION THAT MMR HAS LETHAL WEAPONS, ARRESTS IN
JAN 2016- a police official from Jemia confirmed that MMR had access to lethal
weapons. MMR was involved in criminal acts and therefore people from MMR
arrested in Jan 2016.
7. MMR GETS CONTROL OF SOUTHERN SOFTLAND IN April 2016 after two
month confrontations with army.MMR started controlling the territory by taking part
in regulating the governance. MMR declared the new name of southern Softland as
the MayavarLand. Mr. Babiyola was instituted as the President of MMR and also the
President of Mayavar Land. Mr. Babiyola formed a team of twenty people for the

ix
 purpose of governance. Each one of them was entrusted with a specific department.
Mr. Sengota was appointed as the chief of the Culture department and was known for
his scholarship for his scholarship in the texts.
8. 5 MAY 2016, PAMPHLET RELEASED in which appeal was made to the Kumis to
not celebrate their annual festival. Mr. Sengota visited 4 kimochi-toramis as was
reported by the media. He publicly claimed that the festival would not take place by
convincing Kumis, despite the Zomi stating otherwise.
9. 20 MAY 2016 KIMOCHI TORAMIS DESTROYED- by the Cultural Security
Guards formed by Mr. Sengota to carry out the will of God. Sengota expressed regrets
the next day and promised dialogue with Kumis, which failed.
10. PEACEFUL PROTEST 8 JULY – 15 JULY- Zomi mobilized the Kumis to protest
by reaching nearest Kimochi-Toramis on foot after travelling more than 100 kms.
11. PROTEST SUCCESFUL, MORE THAN 500 MISSING, 56 DEAD,
CULTURAL SECURITY GUARDS TAKE RESPONSIBILITY-The protest was
successful as nearly half a million Kumis took part in the protest. However the press
release highlighted that more than 500 people went missing and they were receiving
the news that some of those who went missing were found dead at several places. The
press release also pointed out that the cultural security guards who were instrumental
in destroying two Kimochi-Toramis were in the forefront in attacking Kumi people.
They underlined that they were attacking under the orders of Mr. Sengota. The case
referred to ICC.
12. MR SENGOTA’S STATEMENT- denied culpability, said sunstroke cause of death.
Claimed he did not provide security as it was impossible to do so on a 100 Km
stretch.
13. AUGUST 2016, MOJAVI AND SOFTLAND FORCES ATTACKED and
reclaimed southern softland from MMR groups by September 2016. The office of the
Prosecutor of the ICC initiated preliminary investigations and issued arrest warrants
against four individuals. Mr. Sengota was one of them. In response to the arrest
warrant by the ICC, the Softland government promptly arrested Mr. Sengota and
surrendered him to the ICC.

x
 SUMMARY OF PLEADINGS

WHETHER MR. SENGOTA CAN BE HELD LIABLE FOR CRIMES

AGAINST HUMANITY UNDER INTERNATIONAL CRIMINAL LAW
It is most humbly submitted in the Hon’ble court thatMr.Sengota is to be held liable for
crimes against humanity under International Criminal Law. In order to establish the charge of
crimes against humanity, it is essential that the elements provided in Article 7 (1)(a) have
been satisfied. In the instant case we see that these elements have been satisfied. The attack
was a systematic attack directed against a civilian population and in furtherance of a common
policy. Mr.Sengota’s actions prove that he had the intent to commit the underlying offences
and had knowledge of the broader context, which indicate that he had the requisite mensrea.
Mr.Sengota is to be held liable under Article 25 read with Article 28, i.e. Individual criminal
responsibility as a superior.

WHETHER MR. SENGOTA CAN BE HELD LIABLE FOR WAR

CRIMES UNDER INTERNATIONAL CRIMINAL LAW
All the elements of war crimes are satisfied as Mr.Sengota intentionally directed an attack
against buildings of cultural and religious significance even when he knew that a non-
international armed conflict existed and the buildings were protected. MMR was a party to
the non-international armed conflict. Actions of Mr Sengota led to a lot of violations of
Customary International Law.

xi
 PLEADINGS

A.WHETHER MR SENGOTA CAN BE HELD LIABLE FOR CRIMES

AGAINST HUMANITY

THE ELEMENTS OF CRIME AGAINST HUMANITY HAVE BEEN SATISFIED.

Crimes against humanity are rooted in transcendental humanitarian principles enshrined in
the Hague Convention 1907, Geneva Conventions and their additional protocols. When
regulating against crimes, Yovel (2006) suggests that the protected value is the essential
humanness, which is carried by each and every person. A crime against humanness negates
the very being in the world as a human.1 The three elements that must be satisfied for there to
exist a crime against humanity are- the widespread or systematic element, the attack on
civilian population and the policy pursuance.2 However there is an absence of any
requirement to show a nexus to an armed conflict or of a discriminatory motive3.

A.I. THE ATTACK WAS DIRECTED AGAINST A CIVILIAN POPULATION

Civilians within the meaning of Article 3 are persons, who are not, or no longer,members of
the armed forces.4 The legal requirement under Article 5 of the Rome Statute is that the
attack in question be directed against a civilian population. Article 51(2) of Additional
Protocol I and Article 13(2) of Additional Protocol II5, both provide, that: “The civilian
population as such, as well as individual civilians, shall not be made the object of attack.”
This was further elaborated in the case of The Prosecutor vs. Kunarac, Kovac and Vukovic 6
Appeal Judgement, wherein the Appeals Chamber stated that:

“The use of the word “population” does not mean that the entire population of
thegeographical entity in which the attack is taking place must have been subjectedto that
attack. It is sufficient to show that enough individuals were targeted inthe course of the
attack, or that they were targeted in such a way as to satisfy theChamber that the attack was

1
Nikos Theodorakis, David P. Farrington,Emerging Challenges for Criminology: Drawing the Margins of
Crimes against Humanity, 6 International Journal of Criminology and Sociological Theory, 1151, 1150-1160
(2013)
2
Ibid.
3
Darryl Robinson, DefiningCrimes Against Humanity at the Rome Conference, 93The American Journal of
International Law, 44, 43-57 (1999)
4
Prosecutor v. TihomirBlaskic (Appeal Judgement), IT-95-14-A, International Criminal Tribunal for the former
Yugoslavia (ICTY), 29 July 2004, para 751
5
Geneva Convention, 1949, Geneva Convention Additional Protocol II
6
Prosecutor v. Kunarac, Kovac and Vukovic (Appeal Judgement),IT-96-23 ICTY, 12 June 2002

1
in fact directed against a civilian “population”, rather than against a limited and randomly
selected number of individuals.”
The Appeals Chamber in Kunarac further stated:
The expression “directed against” is an expression which “specifies that in the context of a
crime against humanity the civilian population is the primary object of the attack”.
In the present case, the Kumis were merely participating in a peaceful protest in order to
preserve their cultural heritage and ethnic identity. They were not members of any armed
force. Hence, an attack against them would constitute, ‘an attack directed against civilians’.

A.2. THE WIDESPREAD OR SYSTEMATIC ELEMENT

The widespread or systematic test has been defined as a disjunctive test. 7 The ICTR Statute
requires that the inhumane acts be committed, “as part of a systematic or widespread attack
against any civilian population.”8The term "widespread" requires large-scale action involving
a substantial number of victims, whereas the term "systematic" requires a high degree of
orchestration and methodical planning.9If the prosecutor chooses to prove the "wide-spread"
element, the concern about completely unrelated acts is addressed, because of the policy
element. If the prosecutor chooses to prove the "systematic" element, some element of scale
must still be shown before ICC jurisdiction is warranted, because a course of conduct
involving multiple crimes is required.10

Several instances indicate that the attacks were systematic. In January 2016, a report released
by Human rights Monitor, a non-governmental organization stated that more than 400 people
were arrested in 2015, who allegedly belonged to MMR, and that they were involved in
planning and execution of several criminal acts.11 The planning and organization was so
efficient that MMR succeeded in capturing territory of Southern Softland after two months of
intensive confrontation with the government forces.12 Cultural Security Guards were
appointed by Mr.Sengota and they were repeatedly used to further the common policy of a
homogenous Mayavar religion. They destroyed two Kimochi-Toramis on 20 May 2016 under

7Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for Rwanda
(ICTR), 2 September 1998, para 456
8
The Prosecutor v. DuskoTadić, IT-94-1-AR72, (Appeals Chamber)ICTY, 2 October 1995, para 316
9
Darryl Robinson, DefiningCrimes Against Humanity at the Rome Conference, 93The American Journal of
International Law, 47, 43-57 (1999)
10
Ibid.
11
Para 10, Moot Proposition
12
Para 10, Moot Proposition

2
his name, in furtherance of the duty he entrusted them with.13 These guards later attacked the
Kumi people between 8-15 July, who were taking part in the peaceful protests for protection
of their religious sites and ethnic identity.14Moreover no police force was deployed for
protection of the civilians. This indicates that there must have been prior planning to
deliberately leave the civilians unprotected, so that the Cultural Security Guards could attack
them.15 The sheer number of people who went missing that day (more than 500) necessitates
the presence of at least a minimum level of planning. The dates of the attack which coincided
with the protest days also point to some prior planning to foil the protest.

A.2.1. THE ATTACKS WERE IN FURTHERANCE OF A COMMON POLICY

The requirement that crimes against humanity be widespread or systematic also implies a
separate requirement that there must be a policy to commit these acts. In other words, this
means that in addition to the nexus between the act of the perpetrator and the attack itself, the
perpetrator must have some knowledge that the attack is widespread, systematic and has a
cause attached to it. Article 7 of the Rome Statute reflects the developments of international
customary law, which do not require the policy to be necessarily the policy of a state.
Accordingly article 7 (2a) takes into account "organizational" policies. The entity behind the
policy does not need to be a state but could also be an organization exercising de facto power
in a given territory.16 In the instant case, the actions were taken by Mr.Sengota for
furtherance of the systematic attacks which were a part of the policy of creating a
homogenous Mayawar Land. The policy was manifested multiple times- when the culturally
significant kimochi-toramis were destroyed, on 5th May 2015 when the house of the religious
leaders of the Kumis was destroyed, when MMR started recruiting in February 2016 and
increased dramatically in terms of number and strength. On 5 May 2016, Mr.Sengota urged
the Kumis to refrain from celebrating their annual festival in furtherance of the policy of
subverting the kumi traditions. It is clear that the actions on 8-15 July were merely another
step forward in the same policy of implementing their ideas of the Mayavar belief
system.There is an apparent modus operandi evident for a very long time.

13
Para 13, Moot Proposition.
14
Para 15, Moot Proposition
15
Para 17, Moot Proposition.
16
Nikos Theodorakis, David P. Farrington,Emerging Challenges for Criminology: Drawing the Margins of
Crimes against Humanity, 6 International Journal of Criminology and Sociological Theory, 1150, 1150-1160
(2013)

3
A.3. MR.SENGOTA HAD THE MENTAL ELEMENT NECESSARY.

As the Statute and the Elements of Crimes do not provide a particular mental element for
murder constituting a crime against humanity, the Article 30 requirements of intent and
knowledge apply17. The requisite mensrea for crime against humanity appears to be
comprised by (i) the intent to commit the underlying offense, combined with (ii) knowledge
of the broader context in which that offense occurs.18
In the present facts, Cultural Security Guards explicitly underlined that they were attacking
the civilians under Mr.Sengota’s orders. This action clearly indicates his intent to commit the
underlying offense. Moreover he knew how the attacks had been a part of the consistent
policy of uniform Mayavar and every action was done in furtherance of that. Therefore
mensrea was present.

17
UN General Assembly, Rome Statute Of The International Criminal Court, (Last amended 2010), Art.30
18
The Prosecutor v. Kupreskic (Trial chamber) ICTY IT-95-16-T, 14 January 2000, Para 556

4
B. MR. SENGOTA’S INDIVIDUAL CRIMINAL RESPONSIBILITY AS
A SUPERIOR

THE ELEMENTS FOR INDIVIDUAL CRIMINAL RESPONSIBILITY UNDER ROME

STATUTE ARE SATISFIED:

B.1. THE COURT SHALL HAVE JURISDICTION OVER NATURAL PERSONS PURSUANT TO THIS

STATUTE.
MrSengota is a natural person and Softland is a party to the Rome Statute. Therefore this
element is satisfied.

B.2. COMMITS A CRIME WITHIN THE COURT’S JURISDICTION.

As already established, MrSengota has committed Crime against Humanity and war crimes
both of which are within the court’s jurisdiction under Article 5 of the Rome Statute.

B.3. ORDERS, SOLICITS OR INDUCES THE COMMISSION OF SUCH A CRIME

According to Article 25, 3(b) if a person orders, solicits or induces the commission of a
crime, he shall be held criminally responsible for that crime.The ICTR, in the Akayesu
judgment19, held that "ordering implies a superior-subordinate relationship" whereby "the
person in a position of authority usesit to convince (or coerce) another to commit an offence".
Such a – at least de facto– "superior-subordinate relationship" is also the first and basic
requirement of command or superior responsibility as first confirmed in the "Celebici" case.20

In the case of Prosecutor vs. Galic, it was held that, “a superior may be found responsible
under Article 7(1) [of the ICTY Statute], (Individual Criminal Responsibility) 21 where the
superior’s conduct had a positive effect in bringing about the commission of crimes by his or
her subordinates. A positive action which clearly indicates the participation in the unlawful
action is required for individual criminal responsibility.”22
In the present facts and circumstances, Mr.Sengota’s clearly ordered the Cultural Security
Guards to attack he civilians between 8-15 July.

Therefore it is humbly submitted that Mr.Sengota is liable under Article 25.

19
Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for
Rwanda (ICTR), 2 September 1998,para. 483. In the same vein, Prosecutor v.RadislavKrstic, (Appeals
chamber) ICTY, 19 April 2004, Para. 601.
20
Prosecutor v.Delalic et al. (Trial Chamber) Case No.IT-96-21-T, ICTY, 16 November 1998, para348
21
Prosecutor v. StanislavGalic,(Trial Chamber) Case no. IT-98-29-T, ICTY, 5 December 2003, para 173
22
Prosecutor v. StanislavGalic,(Trial Chamber) Case no. IT-98-29-T, ICTY, 5 December 2003, para 173

5
B.3.I. SUPERIOR-SUBORDINATE RESPONSIBILITY
“Orders” complements the command responsibility provision (article 28): in the case of an
order to commit a crime the superior is liable for commission for having "ordered"
(individual), in the superior responsibility case the superior is liable for an omission. In the
case of Blaškic23, it was emphasized that direct and superior responsibility are distinct
grounds of criminal responsibility. In such a case, the accused should be convicted for direct
responsibility and his superior position should be considered as an aggravating factor in
sentencing.
The responsibility stems from the fact that Mr.Sengota was a superior to the Cultural Security
Guards (superior responsibility) and directed them to attack civilians (individual criminal
responsibility.). The ICC in the case of Prosecutor v. Jean Pierre Bemba Gombo24 held a
commander or superior is liable because of the wrongful acts of the soldiers under his
command.

The elements of superior subordinate responsibility according to the Rome Statute are:

B.3.I.2 SUBORDINATES UNDER HIS OR HER EFFECTIVE AUTHORITY AND CONTROL

The Cultural Security Guards were appointed by Mr.Sengota and worked under his guidance
and tacit support. Mr.Sengota was the head of the culture department, who was known for his
religious scholarship in Mayavar Religious Texts. Mayavar Land was essentially formed
because of beliefs in this religion. Therefore naturally he enjoyed great influence along with
the de facto control he exerted because he was the one who appointed them. These guards
ceded to his authority over them and did everything they did, under his indirect support which
stemmed from the fact that he did not punish them if they overstepped their orders.
Moreover, “a commander may incur criminal responsibility for crimes committed by persons
who are not formally his (direct) subordinates, insofar as he exercises effectivecontrol over
them.”25

B.3.I.2 HIS OR HER FAILURE TO EXERCISE CONTROL PROPERLY OVER SUCH SUBORDINATES

23
Prosecutor v. TihomirBlaskic (Appeal Judgement), IT-95-14-A, International Criminal Tribunal for the former
Yugoslavia (ICTY), 29 July 2004
24
The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, International Criminal Court, 21 June 2016
25
Prosecutor v. TihomirBlaskic (Appeal Judgement), IT-95-14-A, International Criminal Tribunal for the former
Yugoslavia (ICTY), 29 July 2004, para 67

6
According to ICTY, control refersto a “material ability to prevent or punish criminal conduct,
however that control is exercised.26It is not necessary to show direct or formal subordination,
but the accused has to be, by virtue of his position, senior in some sort of formal or informal
hierarchy to the perpetrator.27
It is submitted that the position that Mr.Sengota enjoyed as a religious leader and as one of
the twenty ministers involved in the governance, gave him authority to control the security
guards. By virtue of the same position, Mr.Sengota could also prevent the guards from
committing any unlawful acts. His failure to do so, combined with his de facto position as
leader lent an indirect support to the guards activities of destroying the Kimochi-Toramis in
the name of religion and other atrocities in the name of Mayavar religion which he preached.
His public statements were one thing, but his failure to prevent or punish, when he could have
done both, in one instance gave the guards the message of doing everything in order to
establish Mayavar Land. He failed to properly exercise control right from the beginning.

B.3.I.3 THE SUPERIOR KNEW OR HAD REASON TO KNOW THAT HIS SUBORDINATES WOULD

COMMIT THE CRIME

Relevant factors that may indicate knowledge include any orders to commit Crimes, or the
fact that the accused was informed personally that his forces were involved in criminal
activity.Other indicia include the number, nature, scope,location, and timing of the illegal
acts, and otherprevailing circumstances; the type and number of forces involved; the means
of available communication; the modus operandi of similar acts; the scope and nature of
thecommander’s position and responsibility in the hierarchical structure; the location of the
command at the time; and the notoriety of illegal acts, such as whether they were reported in
media coverage of which the accused was aware.28 An alternate form of mensrea is the
“should have known” element as indicated in Bemba case. It indicated that it may change the
legal characterisation of the facts to the alternate form of “knowledge” under Article 28(a)(i),
namely, whether “owing to the circumstances at the time”, the Accused “‘should have
known’ that the forces under his effective command and control or under his effective

26
Prosecutor v.Delalic et al. (Trial Chamber) Case No.IT-96-21-T, ICTY, 20 February 2001, Para 256
27
Prosecutor v Halilovic, (Appeals Chamber), Case No. IT-01-48-A, ICTY, 16 October 2007,Para 59

28
Prosecutor v. StanislavGalic,(Trial Chamber) Case no. IT-98-29-T, ICTY, 5 December 2003; IT-98-29-T, para
167.The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, International Criminal Court, 21 June 2016
para 314

7
authority and control, as the case may be” were committing or about to commit the crimes
charged.29

It is humbly submitted that Mr.Sengota was a vital part of the team of twenty that was
responsible for governing Mayavar Land. Consequentially, he is bound to have access to
information about the activities that were perpetrated. He was a part of a hierarchy and
international law presumes that he should have known or must know the plan to attack the
Kumis during their religious function and protest. Moreover his action of not providing for
security on the day of the protest points to a guilty intent. The modus operandi has been same
for Mr.Sengota throughout, where he makes lofty statements about respecting minority rights,
but actually the systematic policy of Kumi repression is followed.

B.3.1.4 THE SUPERIOR DID NOT TAKE ADEQUATE MEASURES TO REPRESS THE CRIME
“Necessary” measures are those appropriate for the commander to discharge his obligation,
and “reasonable” measures are those reasonably falling within the commander’s material
power.The duty of the commander to take all necessary and reasonable measures to prevent
or repress the crimes committed by his forces, orto submit the matter to the competent
authorities for investigation and prosecution,rests upon his possession of effective authority
and control.It is not determinative that the commander had the “explicit legal capacity” to
take such measures; what matters is his material ability to act.30
As mentioned above, Mr.Sengota did not take any measures to stop the crimes even when he
had the de facto authority. This authority is proved by the fact that he was one amongst the
team of twenty who were responsible for governance of Mayavar Land and he regularly
appeared before the media as a spokesperson for the MMR’s policies. Moreover, his
statement to the media when he was asked why there was no security on the protest routes
was that it was impossible to provide security to the entire route. Had he not actually have the
authority or had he not controlled the guards, he would have stated something along that line
only. His statement itself is a proof of his guilt.

29
The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, International Criminal Court, 21 June 2016
para 90
30
Prosecutor v.Delalic et al. (Trial Chamber) Case No.IT-96-21-T, ICTY, 20 February 2001, Para 267 See
also,The Prosecutor v. LjubeBoškoski and Johan Tarčulovski, (Trial Chamber) Case no. IT-04-82-T, ICTY 10
July 2008, para415

8
C. WHETHER MR SENGOTA BE HELD LIABLE FOR WAR CRIMES.
THE ELEMENTS OF WAR CRIMES HAVE BEEN SATISFIED31.
War Crimes under the Statute of the International Criminal Court are defined as, “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.” Thus if there is a violation of law or custom of war, it is deemed to be a war
crime. In the Moot proposition, Mr.Sengota was the chief of the culture department in the
‘government’ of Mr.Babiyola, the president of the Mayavars for Mayavar Religion (MMR)
and also of Mayavar Land (southern Softland). As per Article 8 (2) (e) (iv) of the Rome
Statute, elements of a War Crime are as follows:

C.1. THE PERPETRATOR DIRECTED AN ATTACK.

War crimes can consist of acts or omissions. Unlike crimes against humanity, which consist
of a “widespread or systematic” commission of prohibited acts, any serious violation of
international humanitarian law constitutes a war crime

As mentioned in Paragraph 13 of the Moot Proposition, two Kimochi-Toramis (place of

worship of the Kumis) were destroyed on 20th May, 2016 in front of a few media persons. On
being questioned by the media, those involved in the destruction of the Kimochi-Toramis
stated that they were part of the cultural security guards formed by Mr.Sengota and further
asserted that they were performing the duty entrusted to them by their religious heads,
‘particularly Mr.Sengota who has thorough knowledge of the religious texts.’32 Furthermore,
Mr.Sengota evaded the question when he was asked as to whether or not he had played a role
in the destruction of the two Kimochi-Toramis. In the case of Prosecutor vs PavleStrugar33:
Conviction due to Attacks on civilians; destruction or wilful damage done to institutions
dedicated to religion, Srugar had both legal and effective control of the JNA forces who
conducted the military action on Dubrovnik, including the shelling of the Old Town. In the
course of that attack, civilians were killed and injured, and protected buildings were damaged
and destroyed.. The Chamber found that of these 116 buildings and structures, it has been
established that 52 were damaged and six of them being destroyed, during the 6 December
shelling of the Old Town by the JNA. The nature and extent of the damage to these buildings
varied. Moreover, while several of the 52 buildings and structures had sustained some degree

31
Elements of Crimes, (United Nations DOC. PCNICC/2000/1/ADD.2)
32
Moot Proposition, Page 5, Para 11
33
Prosecutor v. PavleStrugar, IT-01-42-T, International Criminal Tribunal for the former Yugoslavia, 31 January
2005

9
of damage from earlier shelling in October and November, the Chamber was satisfied that the
previously damaged buildings sustained further and significant damage during the 6
December attack. In relation to the charge of devastation, the Chamber found that the Old
Town sustained damage on a large scale on 6 December 1991. In relation to the charge of
destruction of cultural property, the Old Town of Dubrovnik in its entirety was entered onto
the World Heritage List in 1979, so that every building of the Old Town, including its walls,
can be properly characterised as cultural property. It was also established that there were no
military objectives in the immediate vicinity of the 52 buildings and structures destroyed or
damaged on 6 December 1991, or in the Old Town, or in its immediate vicinity, so that the
destruction or damage of property in the Old Town on 6 December 1991 was not justified by
military necessity.

C.2. THE PERPETRATOR INTENDED SUCH BUILDING OR BUILDINGS DEDICATED TO RELIGION,

EDUCATION, ART, SCIENCE OR CHARITABLE PURPOSES, HISTORIC MONUMENTS, HOSPITALS OR

PLACES WHERE THE SICK AND WOUNDED ARE COLLECTED, WHICH WERE NOT MILITARY

OBJECTIVES, TO BE THE OBJECT OF THE ATTACK.

The facts clearly indicate that the KimochiToramis were buildings dedicated to religion. They
comprised of a vast area, consisting several gates and 26 small houses. It was believed that
Gods would descend annually in those buildings and reside in those huts. During these three
days of the festival people in groups sing prayers to the Gods. These prayers are sung in the
form of folk songs. This singing goes on uninterruptedly for three days, with performers
changing after every four hours. The singing has a particular style of its own and goes on in
the form of argumentation. Kumis specifically link this form of singing to Kimochi-Toramis.
They consider that there is a spiritual link between the songs and the Kimochi-Toramis34 this
clearly indicates the importance that the Kumis attached to the KimochiToramis. Their
cultural and religious significance is also underlined by the fact that they are listed on the
Representative List of the Intangible Cultural Heritage of Humanity, under the Convention
for the Safeguarding of the Intangible Cultural Heritage of 200335. The kimochiToramis are
“cultural spaces” within the meaning of Article 2(1) of the convention. Consequently, these
spaces were protected as places of religious and cultural value.

34
Moot proposition, Page 3, para7
35
Convention for Safeguarding of the Intangible Cultural Heritage of 2003.

10
C.3. MENTAL ELEMENT
International case-law has indicated that war crimes are violations that are committed
wilfully, i.e., either intentionally (dolusdirectus) or recklessly (doluseventualis). The exact
mental element varies depending on the crime concerned.36

Mr.Sengota intended to impose the supremacy of the Kamila ethnicity on the Kumis and was
opposed to their style of practising the Mayavar religion. In the current Proposition, there is
presence of dolusdirectus as Mr.Sengota intentionally directed security guards of MMR
appointed by him to destroy two Kimochi-Toramis. Furthermore, there were a total of 56
recorded deaths of the Kumi people who had gone for the annual day celebrations. More than
500 out of the half a million Kumis taking part in the celebrations were missing and the
corpses of many were found at several places on the routes of the protest to spread fear. The
cultural security guards who had destroyed the two Kimochi-Toramis were in the forefront in
attacking Kumi people. They were attacking under the orders of MrSengota. Thus, the
presence of the mental element is proved as Mr.Sengota had committed these crimes
intentionally. In the case of Prosecutor vs Germain Katanga: Trial Chamber II found
German Katanga guilty, as an accessory, within the meaning of article 25(3)(d) of the Rome
Statute, of one count of crime against humanity (murder) and four counts of war crimes
(murder, attacking a civilian population, destruction of property and pillaging) committed on
24 February 2003 during the attack on the village of Bogoro, in the Ituri district of the DRC.
The Chamber found that it had been established beyond reasonable doubt that Germain
Katanga had made a significant contribution to the commission of the crimes by the Ngiti
militia, which was acting with a common purpose, by assisting its members to plan the
operation against Bogoro. The Chamber found that Germain Katanga acted in the knowledge
of the criminal common plan devised by the militia to target the predominantly Hema
population of Bogoro. The crimes of murder, attacking civilians, destroying property and
pillaging were part of the common plan. On 23 May 2014, Trial Chamber II, ruling in the
majority with Judge Christine Van den Wyngaert dissenting, sentenced Germain Katanga to a
total of 12 years’ imprisonment. On 24 March 2017, Trial Chamber II issued an Order
awarding individual and collective reparations to the victims of crimes committed by
Germain Katanga. The judges awarded 297 victims with a symbolic compensation of USD
250 per victim as well as collective reparations in the form of support for housing, support for
income-generating activities, education aid and psychological support

36
International Covenant of the Red Cross, “Definition of War Crimes”,https://ihl-databases.icrc.org/customary-
ihl/eng/docs/v1_rul_rule156

11
C.4. THERE EXISTED A NON-INTERNATIONAL ARMED CONFLICT.

A non-international (or "internal") armed conflict refers to a situation of violence involving

protracted armed confrontations between government forces and one or more organized
armed groups, or between such groups themselves, arising on the territory of a State.37 HL
requires that two criteria be met for there to be a non-international armed conflict: the armed
groups involved must show a minimum degree of organization and the armed confrontations
must reach a minimum level of intensity. The fulfilment of these criteria is determined on a
case-by-case basis, by weighing up a number of factual indicators.

C.4.1 The level of Intensity

In the Mahdi case,38 the following criteria was used-
“ With respect to the requirement that the armed violence must meet a certain minimum level
of intensity to be distinguished from mere internal disturbances and tensions, the Chamber
notes that the fact that these groups exercised control over such a large part of Mali for such a
protracted period – with the resulting effect on the
civilian population concerned – clearly demonstrates a sufficient degree of intensity of the
conflict” this criteria alone is also sufficient for the present case as in our case too, MMR had
successfully occupied the Southern Softland after armed confrontation against the
government.
The level of intensity of the violence is also determined in light of indicators such as the
duration and gravity of the armed clashes, the type of government forces involved, the
number of fighters and troops involved, the types of weapons used, the number of casualties
and the extent of the damage caused by the fighting. It is submitted that within a period of
two months, the MMR succeeded in wresting almost half of the country from its army. This
is indicative of the kinds of weapons the MMR must have used, the intensity of the
confrontation during that time and the gravity of the clashes to successfully defeat the armed
forces of a sovereign nation. Moreover it is also reported in the factsheet that MMR had
possession of lethal weapons and had been rapidly recruiting new members. 39

37
Ibid.
38
The Prosecutor V. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, International Criminal Court, 27 September
2016
39
Moot Proposition, Para 9,10

12
C.4.2 Organization in the Party

The level of organization of the armed group is assessed by looking at factors such as the
existence of a chain of command, the capacity to transmit and enforce orders, the ability to
plan and launch coordinated military operations, and the capacity to recruit, train and equip
new fighters.

It is humbly submitted that there existed a very apparent chain of command in the MMR,
with Mr. Babiyola as the president and a team of twenty people to look after the governance.
This is indicative that this organization is an inherent trait of the party. Moreovermore than
400 people were arrested in 2015, who allegedly belonged to MMR and that they were
involved in planning and execution of several criminal acts. MMR started recruiting more
people into its fold. In the first week of February 2016 the media reported that MMR’s armed
groups had increased dramatically in numbers and strength. All of these facts point to
concerted efforts taking place for furtherance of a common goal which again denotes the
degree of organization in the party.
Moreover in the Mahdi case40 the chamber had taken the following facts in consideration to
establish organization-
“The evidence demonstrates that Ansar Dine and AQIM qualified as organised armed groups
at the relevant time, with the Chamber noting in particular their military capacity to displace
the Malian army, capture Timbuktu and exercise some form of government over it for
approximately nine months.” In the instant case, MMR had the military capacityto displace
the Softland army and exercise control over SouhernSoftland from April 2016-August 2016 a
period of five months. It is pertinent to note that the conflict remained strictly non-
international when the crimes were committed (July) as the combined Softland and Mojavi
forces only came into picture one month after the commission of the offense.

C.5 THE PERPETRATOR WAS AWARE OF FACTUAL CIRCUMSTANCES THAT ESTABLISHED THE
EXISTENCE OF AN ARMED CONFLICT.

MMR had engaged in an armed conflict, as established above, to gain control of Southern
Softland. MMR started controlling the territory by taking part in regulating the governance.
MMR declared the new name of southern Softland as the Mayavar Land. Mr. Babiyola, the
President of Mayavar Land formed a team of twenty people for the purpose of governance.
Each one of them was entrusted with a specific department. Mr. Sengota was appointed as the
40
Supra note 6

13
chief of the Culture department.41 Owing to this position, which was a direct consequence of
the armed conflict, it is certain that Mr. Sengota knew about the conflict. All of his
subsequent actions also point to this knowledge, as proved by the systematic policy of Kumi
repression Mr. Sengota followed. Moreover Mr. Sengota was a member of the MMR and
resided in Mayavar land which indicates his knowledge. The same criteria was used in the
case of Prosecutor V. Ahmad Al Faqi Al Mahdi“Given that Mr. Al Mahdi and the attackers
were based in Timbuktu and worked pursuant to AnsarDine’s administration of the city, the
Chamber is also satisfied that the perpetrators were aware of the factual circumstances which
established the existence of the armed conflict “

VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW

COMMITTED DURING A NON-INTERNATIONAL ARMED
CONFLICT
. ARTICLE 19 (i) of the Hague Convention states that: ‘In the event of an armed conflict not
of an international character occurring within the territory of one of the High Contracting
Parties, each party to the conflict shall be bound to apply, as, a minimum, the provisions of
the present Convention which relate to respect for cultural property.’

There has been a clear breach of the provisions of the Geneva Convention of 1949 and of the
Hague Convention42, hence Mr.Sengota needs to be sentenced. Safeguarding of property
refers to Preparatory measures taken in time of peace for the safeguarding of cultural
propertyagainst the foreseeable effects of an armed conflict pursuant to Article 3 of the
Convention includes, as appropriate, the preparation of inventories, the planning of
emergency measures for protection against fire or structural collapse, the preparation for the
removal of movable cultural property or the provision for adequate in situ protection of such
property, and the designation of competent authorities responsible for the safeguarding of
cultural property. MMR was a party to the dispute and failed to honor these obligations.
Article 6 Respect for cultural property
With the goal of ensuring respect for cultural property in accordance with Article 4 of the
Convention: a waiver on the basis of imperative military necessity pursuant to Article 4

41
Moot Proposition, Page 5
42
Convention for Protection of Cultural Property in the event of armed conflict, 1954. Convention concerning
the protection of world cultural and natural heritage of 1972, Convenion for Safeguarding of Intangible Cultural
Heritage, 2003

14
paragraph 2 of the Convention may only be invoked to direct an act of hostility against
cultural property when and for as long as:
i. That cultural property has, by its function, been made into a military objective;
and
ii. There is no feasible alternative available to obtain a similar military advantage to
that offered by directing an act of hostility against that objective.
Since the people had gathered there for protection of their culture and religion and had
neither been converted into a military base nor was there any military advantage, MR
Sengota is liable for violating these obligations.

15
 PRAYER FOR RELIEF

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon’ble Court may be pleased to adjudge and declare that:
1.Mr. Sengotabe held liable on one count of Crime against Humanity under International
Criminal Law.

2.Mr. Sengotabe held liable on one count of War Crime under International Criminal Law.

3. Mr. Sengota’sresponsibility as a superior should be taken into account while sentencing

and he should be sentenced to not less than 12 years of imprisonment.

Respectfully submitted,
The Agent for the Prosecutors

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