3Defense

PROSECUTOR v. HASSAN AMIR

February 2016

TABLE OF CONTENTS
INDEX OF AUTHORITIES
STATEMENT OF FACTS
SUMMARY OF PLEADINGS
PLEADINGS
Nature of the conflict
Burden of proof
COUNT ONE
Elements of Command Responsibility & the events of rape
First event
Second event
Third event
Fourth event
COUNT TWO
Elements of Co-perpetration and the crimes charged
At least one element of co-perpetration is missing
COUNT THREE
Elements of Ordering, Soliciting or Inducing
Amirs order was clear
The attacking ADF force was a breakaway unit
PRAYER FOR RELIEF

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INDEX OF AUTHORITIES
A. Conventions
1) Additional Protocol I to the 1949 Geneva Convention (page 6)
2) Geneva Convention, 1949 (p. 4)
3) Rome Statute of the International Criminal Court (p. 4)

B. International Court Decisions

1) International Criminal Court (ICC)
The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 (p. 13)
The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 (p. 5, 6, 7, 10)
The Prosecutor v. Laurent Gbagbo, ICC-02/11-01/11 (p. 5, 13)
Pre-Trial Chamber I, Lubanga decision, ICC-01/04-01/06-803-tEN (p. 11)
2) International Criminal Tribunal for the former Yugoslavia (ICTY)
Prosecutor v Dlic, IT-04-83-T (p. 7, 8)
Prosecutor v Kordic and Cerkez, IT-95-14/2-T (p. 6, 7, 8, 10)
Prosecutor v Oric, Case No. IT-03-68-A (p. 7)
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 Prosecutor v Strugar, IT-01-42-T (p. 7)

Prosecutor v. Blaskic, IT-95-14-A (p. 9)
Prosecutor v. Delalic et al., IT-96-21-A (p. 10)
Prosecutor v. Krnojelac, IT-97-25-A (p. 10)
3) International Criminal Tribunal for Rwanda (ICTR)
The Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-T (p. 7)
STATEMENT OF FACTS
The Republic of Alin was previously governed by President Yousef Aflan from 2000 until the
fateful events of 2014. Aflan is a close ally of herein defendant General Hassan Amir leader of the
Alini Defense Force (ADF).
The events started out in January 2013 when protesters turned up in Orkan calling for the
resignation of Aflan causing tension between protesters and security forces. This event caused the
emergence of a militant group, the Alini Liberation Army (ALA), headed by Colonel Nur Aziz. Its
emergence was highlighted by the taking of a local administrative council which did not sit well with
the government thus an offensive was conducted by General Amir thru his Orkan commander, Colonel
Adada a leader who commanded loyalty from his troops claiming to only answer to him. A
declaration of martial law ensued.
With the growing tension, ALA supporters marched towards North Orkan where the main
government administration is located. This move was highly opposed by the government causing an
order from General Amir to prohibit the manifestation and take any necessary measures to prevent it.
However, Amir and Adada had a disagreement on the operational details of the action. Nevertheless,
the action pushed through which brought about the first count of this charge. Several women were
allegedly taken and raped after the ADF action. Meanwhile, Human Rights Protector, Al-Jazeera and
BBC reported sexual violence perpetrated against women by pro-government militants
The increasing conflicts within Alin forced the UN Security Council to issue a Resolution
which, among others, established an International Security Support Force to protect civilians. Not long
after, ISSF had a conflict with the Alin government when its compound and an outpost were allegedly
attacked by ADF. In all these attacks, Colonel Adada was present who already had a frictional and
acrimonious relationship with General Amir. In fact, the ISSF outpost attack may have been carried out
by a breakaway ADF unit.

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SUMMARY OF PLEADINGS
The Defense submits that the:

nature of the conflict is a non-international armed conflict subject to the appropriate laws and

treaties governing conflicts of similar nature;

the Prosecution has the burden of proof to show concrete and tangible proof that General
Amir did not commit any of the crimes charged.

The Defense submits that General Hassan Amir had no participation, in any mode of criminal
liability, in any of the war crimes brought for confirmation of charges before this Court

Amirs command responsibility in all the events of rape cannot be established with certainty;
Amir never had a common plan with an unknown co-perpetrator to qualify as his individual

criminal responsibility;
Amir did not make any order to treacherously attack the ISSF nor does he have any control over
the attacking breakaway force.

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PLEADINGS
A. Nature of the conflict
The situation in Alin from March to December of 2013 should be considered as a noninternational armed conflict (NIAC).
NIAC is defined in the negative by the Geneva Convention 1 thus we need to look into
the definition of an international armed conflict (IAC) to establish what constitutes NIAC. IAC
is defined as an armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them 2. As such, any conflicts not
participated in by at least two High Contracting Parties is a non-international armed conflict.
Clearly, the incidents within Alin were only between a High Contracting Party (i.e.
Republic of Alin) and a militant group (i.e. Alin Liberation Army). Even the subsequent
participation of the International Security Support Force (ISSF) 3 and of Blin and Clin4 cannot
strip off the localized nature of the conflict. The former is a mere creature of a United Nations
Security Council Resolution5 while the latter are High Contracting Parties operating under the
mandate of the ISSF.
B. Burden of proof

1 1949 Geneva Convention, Article 3, not of an international character

2 Ibid., Article 2
3 Compromis, para. 12
4 Ibid., para. 20
5 Ibid. 3

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In accordance with the Statute, the Prosecution has the burden of proof to support each
charge with sufficient evidence to establish ground to believe that the person committed the
crime charged.6
Such proof must offer concrete and tangible proof demonstrating a clear line of
reasoning underpinning the specific allegations7.
C. Crimes charged
Count One: War Crime of Rape on the basis of command responsibility
1. Amirs command responsibility cannot be established during the incident in June 2013
a. The elements of command responsibility and the events of rape
In order to establish command responsibility, the following elements must concur: (1)
the suspect must be either a military commander or a person effectively acting as such; (2) the
suspect must have effective command and control, or effective authority and control over the
forces who committed one or more of the crimes; (3) the crimes committed by the forces
resulted from the suspect's failure to exercise control properly over them; (4) the suspect either
knew or, owing to the circumstances at the time, should have known that the forces were
committing or about to commit one or more of the crimes.8
Vis--vis, the war crimes of rape complained of during the June 2013 incident may be
summarized into four events. First, the testimony of a demonstrator that she and several other
women were taken to the basement of NTC, repeatedly raped then transferred to a detention
facility operated by the Ministry of Security9. Second, the description given by two women that
they were arrested outside the NTC, taken to the detention facility then raped 10. Third, the HRP
6 Rome Statute of the ICC, Art 61 (7)
7 ICC, The Prosecutor v. Laurent Gbagbo, ICC-02/11-01/11, para. 19
8 ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, para. 407
9 Idem., Compromis, para. 10
10 Ibid.

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estimate which mentioned sexual violence committed against several women 11. Lastly, the AlJazeera and BBC reports which mentioned acts of sexual violence perpetrated against several
women by pro-government militants12.
b. First event of rape: Amir had properly exercised control over his troops but was deprived
of any knowledge of the crimes
To begin with, it must be pointed out that in this particular event of rape the testimony is
not clear on who committed the crime complained of. The testimony merely pointed out the
taking, the rape and the transfer to the detention facility but vague as to the identity of the
perpetrators. Such ambiguity casts a doubt on whether the crimes were really committed by
ADF forces under Amirs command or not. Nevertheless, we proceed to the argument on why
Amir had no command responsibility in this event.
Admittedly, the first and second elements of command responsibility were present in
this event (i.e. commander status, and effective control), however the last two are obviously
missing. General Amir properly exercised control over his troops and that he has no knowledge
of the crimes committed.
Proper exercise of control pertains to at least three duties namely, the duty to prevent,
the duty to repress and the duty to submit 13. Failure in any of these three should have a causal
link to the commission of the crime in order to show command responsibility14. General Amir
fulfilled his duty to prevent the crimes when he instructed the ADF to take any necessary
measures to prevent the march15. The duty of prevention only arises prior to the commission of
the crimes and before it has actually been committed by the superiors forces 16 which Amir just
11 Ibid., para. 11
12 Ibid.
13 Idem., The Prosecutor v. Jean-Pierre Bemba Gombo, para. 424
14 Ibid., para. 423
15 Idem., Compromis, para. 8
16 ICTY, Prosecutor v Dlic, IT-04-83-T, para. 72

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did during the meeting at the Town Hall prior to the march. Any subsequent action beyond
Amirs instruction cannot be ascribed to this duty to prevent. At most, such deviation may be
attributed to the second and third duties of proper exercise of control (i.e. duty to repress and
duty to submit)
The last two duties are only triggered during 17 or after18 the commission of the crime
which must be read in connection with the fourth element of command responsibility (i.e. knew
or should have known). In short, Amir must at least have knowledge of the crimes in order for
his duty to repress or submit to materialize. It would be preposterous to repress an act or submit
it to higher authorities if at the first instance the person has no knowledge of it. Knowledge of
the crime is a precursor to the duty to repress.
As such, we define the fourth element of command responsibility as the knowledge that
the commanders forces were about to engage, engaging or had engaged in a conduct
constituting a crime19. Such knowledge should not be presumed20. Further, the existence of
knowledge or want of it may be shown by the tests of either actual knowledge21 of the
commander or negligence22 by him in exercising due diligence to acquire knowledge of the
commission.
For the first test, it must be shown that actual knowledge was obtained by direct and
circumstantial evidence23. Several factors such as the number of the illegal acts, the scope and
time of the commission of the crime, the type and number of the force, the means of available
17 Additional Protocol I to the Geneva Conventions, Article 87
18 ICTY, Prosecutor v Kordic and Cerkez, IT-95-14/2-T, "Judgment", 2001, para. 446
19 ICTY, Prosecutor v Oric, Case No. IT-03-68-A, "Appeals Chamber Judgment", 2008, paras. 57- 60
20 Idem., Prosecutor v. Delic, para. 64
21 Idem., The Prosecutor v. Jean-Pierre Bemba Gombo, para. 429
22 Ibid.
23 ICTY, Prosecutor v. Kordic and Cerkez, IT-95-14/2-T, "Judgment", 26 February 2001, para. 427

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communication, and location of the commander or of the acts 24 may be used. As for the second
test, it requires more of an active duty on the part of the superior to take the necessary
measures to secure knowledge of the conduct of his troops 25 and to inquire, regardless of the
availability of information at the time on the commission of the crime.
Taking into consideration the aforementioned tests, we fail to see that General Amir
indeed had knowledge of the commission of the crime. First, General Amirs instruction was
clear as to limit any actions to necessary ones. We can presume that the NTC raid which
supposedly started this first event of rape had the blessings of Amir but as to subsequent illegal
acts, there is yet to surface any evidence to prove that those act also had the orders of Amir.
Second, the facts of the case, when taken in conjunction with the determining factors to indicate
a superiors actual knowledge, will crumble on its own weight. Take the example of the factors
of number of the illegal acts, its time of commission and the scope of the acts; all these factors
are obviously unknown to General Amir. The closest argument to attack this is by invoking the
second test (i.e. negligence test).
Under the second test, the superior should have known that a crime was committed.
To confirm this, the superior must have had some general information to put him on notice 26 and
such information is sufficient to justify an investigation or inquiry 27. In reviewing the facts,
General Amir was not shown to have any access to any general information pertaining to the
acts. This event of rape was not known to him when it was committed or any time immediately
thereafter. This failure to know may seem to qualify as a fault on his part but when taken
together with the fact of Amir and Adadas disagreement over operational strategy 28 and the
alarming loyalty of some forces to Adada 29, we can see that the failure to know is not entirely
ascribable to General Amir.
24 ICTY, Prosecutor v Strugar, IT-01-42-T, "Judgment", 31 January 2005, para. 368
25 ICTR, The Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-T, 21 May 1999, para. 227
26 Idem., Prosecutor v. Delic, para. 65-66
27 Idem., Prosecutor v. Kordic and Cerkez, 437
28 Idem., Compromis, para. 8

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As we can gather from succeeding facts, General Adada himself had a frictional and
acrimonious relation30 with General Amir which definitely casts a doubt as to Amirs effective
control over him. Consequently, Amir cannot be faulted in not knowing of the entire operations
and side-operations when his immediate subordinate exhibited insubordination.
In sum, for this first event of rape, General Amir had properly exercised control over his
forces in that he had fulfilled his duties to prevent any untoward illegal acts. The crime of rape
may be attributable to his troops but nevertheless the lack of knowledge on his part due to
insubordination by his underling will avoid him from liability under command responsibility.
c. Second event of rape: The circumstances of the first event were similar to the second event
In this second event of rape, the elements of failure to exercise control properly and
knowledge of the crimes are once again missing.
Again, it should be noted that from the time these acts of rape started to happen, General
Amir only had one direction take any necessary measures. Necessary measures are presumed
to be those within the commanders material possibility31 depending on the degree of effective
control. When these soldiers who committed the rape acted what they did, they were already
beyond the effective control of Amir thus exercising proper control is immaterial in this event.
Those soldiers acted beyond Amirs orders of taking only necessary action to prevent the march.
Moreover, Amirs failure to know of these crimes should be examined once more in the
light of the doubt casted by his disagreement with Adada. Amir, as the general of the ADF,
ought to know but his knowledge of the crimes was hindered by insubordination which took
place later.
d. Third event of rape: The events cannot be proven with certainty to be the doing of ADF
forces

29 Ibid., para. 6
30 Ibid., para. 14
31 ICTY, Prosecutor v. Blaskic, IT-95-14-A, "Appeals Chambers Judgment", 29 July 2004, para. 395

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In this particular event, the crime of rape itself, not Amirs command responsibility, is
the proper point of argument to avoid liability.
First, although the initial claim of HRP is that the ADF forces conducted the raids and
arrests32, it is illogical to immediately assume that the succeeding war crimes of rape were
perpetrated by the same forces.
Second, when the above argument is taken in conjunctionn with the fourth event of rape,
we have an altogether different set of facts which may or may not ascribe liability to ADF
forces and ultimately to General Amir. As such, there exists a possibility that it was the progovernment militants who actually committed the war crime of rape, not the ADF forces. This
possibility would most definitely prevent ascribing liability to Amir and to ADF as a whole as
we will establish later on.
Last, given the possible scenario raised, it is up to the Prosecution to prove that the war
crimes of rape reported by HRP were indeed committed by ADF forces before liability to Amir
may be established.
e. Fourth event of rape: The perpetrators are pro-government militants beyond Amirs
command responsibility
From the facts of the case, it is clear that the last event of rape (i.e. reports) were
perpetrated by pro-government militants which General Amir could not have exercised any
degree of effective control whatsoever. Effective control necessitates "the material ability to
prevent and punish"33 the commission of offences and, as such, failure to exercise such abilities
of control gives rise to criminal responsibility34. General Amirs involvement in the works of
any militant groups operating at the time of the conflicts cannot be gleaned from any facts
established.
At most, General Amir may have exercised influence over these militants which are
sympathetic to the government however such simple ability to influence over any forces is
32 Idem., Compromis, para. 11
33 ICTY, Prosecutor v. Delalic et al., IT-96-21-A
34 ICTY, Prosecutor v. Krnojelac, IT-97-25-A, para. 171

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insufficient in establishing effective control35. Even the most substantial influence36 cannot
ascertain that a commander indeed exercise effective control over the erring troops.
In fact, General Amir is not a military commander or a person acting as a military
commander within the militant groups. The Prosecution is yet to establish any de jure or de
facto command by General Amir over these militant groups. As such, it is immaterial to discuss
the other elements in relation to the third event when in the first place General Amir never
exercised effective control over these forces.
Count Two: War Crime of Intentionally Directing Attacks against Peacekeeping Mission on the
basis of individual criminal responsibility as individual, joint, or through another person
2. General Amir did not have any direct, co-, or indirect participation as perpetrator in the
war crimes charged under this count
a. The elements of participation under Article 25 (3) (a) and the crime charged
Before delving into the elements of criminal responsibility under this count, we should
first set the mode of such responsibility. It should be noted that the Prosecution failed to
mention the mode of criminal responsibility under this count (whether direct, co-, or indirect
perpetration) thus the Defense will address each classification and point out the proper mode.
The Defense submits that criminal responsibility under this count should pertain only to
co-perpetration. It is clear from the facts that Amir had no direct participation in the events
given that the attacks were done by ADF fighter jets and by suspected ADF soldiers. As regards
indirect participation, the same may be classified under indirect co-participation thus it may be
absorbed under criminal responsibility for co-perpetration.
Co-perpetration requires the following elements: objective and subjective.
Under the objective element, the proofs that (a) the suspect must be a part of the
common plan or an agreement with one or more persons and (b) the suspect and other coperpetrators must carry out essential contributions in a coordinated manner for the fulfillment
of the material elements of the crime must be present 37. As for the subjective element, the
suspect must (a) fulfill the subjective elements of the crimes charged, namely intent and
35 Idem., The Prosecutor v. Jean-Pierre Bemba Gombo, para. 415
36 ICTY, Prosecutor v Kordic and Cerkez, IT-95-14/2-T, "Judgment", 2001, paras. 412-413

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knowledge; (b) be aware and accept that implementing the common plan will result in the
fulfillment of the material elements of the crimes; and (c) be aware of the factual circumstances
enabling him to control the crimes jointly with the other co-perpetrator38.
Vis--vis, the crimes charged may be summed in the two events: (1) the morning attacks
ADF fighter jets shelling the ISSF compound, and the (2) afternoon attacks around 100
assailants attacking the ISSF compound.
b. At least one proof of both the subjective and objective elements of co-perpetration is
missing
As regards the objective elements, any claims to prove such will utterly fail given the
absence of any common plan or agreement with co-perpetrators. It is with the Prosecution to
show what the plan was (if there was one) or who the co-perpetrators were. Nowhere in the
Compromis can we conclude that Amir and his unknown co-perpetrator/s had a common plan
or agreement. Absent proof to show the foregoing cannot establish the objective element of coperpetration.
As regards the subjective elements, Amirs intent and knowledge to commit the acts
under this count is absent. At most, Amirs participation, which in no way admits participation
in the criminal liability, may be gleaned from his September 20 meeting 39 with Adada 5 days
after the happening of the crimes charged. This fact even tells that the meeting was for coming
military operations. The element of futurity in the meeting suggests that although a plan was
committed, the same was created after the September 15 events. Such plan does even closely
imply that it is for a criminal cause.
Nevertheless, even the subjective element of co-perpetration will also fail for the lack of
a common plan in the first place. The second proof of subjective co-perpetration requires that
the suspects are aware and accept that implementing the common plan will achieve the material
elements of the crime. It cannot be gainsaid that one cannot be aware and accept a non-existent
37 Pre-Trial Chamber I, Lubanga decision, ICC-01/04-01/06-803-tEN, paras. 343-348
38 Ibid., pp. 118, 123-124
39 Compromis, para. 19

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plan. To this point, the Prosecution is yet to present a tangible proof of a common plan between
Amir and some unidentified co-perpetrator. From the following, it is unnecessary to discuss the
other proofs per element since one of each proofs are missing in the case.
Count Three: War Crime of Killing/Wounding Treacherously Individuals belonging to Hostile
Nation or Army or Combatant Adversary on the basis of individual criminal responsibility
ordering, soliciting, or inducing
3. Amir never ordered, solicited or induced anyone to attack the ISSF outpost
a. The elements of participation under Article 25 (3) (b)
Similar to Count Two, the Prosecution failed to mention the mode of criminal responsibility
which Amir may be held responsible. Nevertheless, such distinction will make no difference
given the uniform treatment afforded these modes by this Court40. For specificity, ordering is
the logical act to describe this Count.
Regarding the elements required, the following are as follows: (a) the person is in a position of
authority, (b) the person instructs another person in any form to either: (i) commit a crime
which in fact occurs or is attempted or (ii) perform an act or omission in the execution of which
a crime is carried out, (c) the order had a direct effect on the commission or attempted
commission of the crime, and (d) the person is at least aware that the crime will be committed
in the ordinary course of events as a consequence of the execution or implementation of the
order41.
b. Amirs order was clear as to the expulsion of ISSF
As stated in the Compromis, Amir was clear in his order take measures to end the
illegal occupation of the international force 42. While it may be said that the order is too broad
to possibly include the attacks on the outpost, the Defense submits that the same inference
40 ICC, The Prosecutor v. Laurent Gbagbo, ICC-02/11-01/11, para. 243
41 ICC, The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, para. 145
42 Idem., Compromis, para. 21

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necessitates clear and convincing proof to prove a particular order to commit the crimes
complained of under this Count. It is not enough to say that since Amir gave an order, the same
encompasses legal and illegal means.
Of the four elements of criminal responsibility under this Count, only the first element
was present (i.e. position of authority). Amir may have given an order but such was not an order
to commit a crime or perform an act the result of which a crime will be committed. Amirs
order was limited to measures to expel the illegal occupants which may or may not include the
ordering of the attacks committed.
c. The ADF unit which attacked the outpost was a breakaway force
The allegation under this Count will most definitely fall short of implicating Amir for
this particular fact. In paragraph 24 of the Compromis, the HRP reported that the attacks were
probably perpetrated by an ADF breakaway unit. Clearly, a breakaway unit does not receive
orders from its former commander (regardless of the nature of order). This argument is
strengthened by the frictional and acrimonious relations between Amir and Adada, plus the
disturbing loyalty of the latters forces to him only. When we take these facts together, we
create a cloud of doubt on Imad Mousses admission43.
It is possible that Mousse was led into believing that the attacks were coordinated with
ADF when in fact, it was carried out solely by Adada and his ever-loyal forces to gain
recognition for them.
Absent any showing of a coordinated attack ordered by Amir, we submit that the doubt
should be resolved in favor of Amir. The Prosecution ought to show that Amirs order included
the attack and that he was in coordination with a breakaway ADF unit.

43 Ibid., par. 24s

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PRAYER FOR RELIEF

The Defense respectfully requests this Honorable Court to adjudge and declare that General
Hassan Amir is not criminally responsible under the Statute for war crimes under Article 8(2)(e)(vi),
Article 8(2)(e)(iii), Article 8(2)(b)(xi), and Article 8(2)(e)(ix).
Respectfully submitted,
The DEFENSE

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