ICC MOOT COURT COMPETITION, 2016 INTRA ROUNDS

BEFORE THE INTERNATIONAL CRIMINAL COURT

THE PRE-TRIAL CHAMBER

SITUATION IN SAXONIA
IN THE CASE OF

PROSECUTOR V. GENERAL TAXON TORTUGA

WORD COUNT: 6475

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENCE

Written Submissions on behalf of the Defence

TABLE OF CONTENTS
STATEMENT OF FACTS

[I]. BACKGROUND

[II]. DEMONSTRATIONS AND CRACKDOWN IN NORTH ZOLTA

[III]. DEPLOYMENT OF INTERNATIONAL PEACE AND SECURITY FORCE

[V]. ATTACK ON IPSF COMPOUND AND OUTPOST

[V]. ATTACK ON IPSF OUTPOST

[VI]. COUNTS AGAINST GENERAL TORTUGA

ISSUES PRESENTED

SUMMARY OF ARGUMENTS

[ISSUE I] WHETHER THE CHARGE AGAINST THE DEFENDANT FOR COMMITTING THE WAR
CRIME CONTAINED WITHIN 8(2)(E)(III) WITH THE CRIMINAL RESPONSIBILITY BEING OF
ACTING THROUGH ANOTHER PERSON CAN BE CONFIRMED?

[ISSUE II] WHETHER THE CHARGE AGAINST THE

ACCUSED FOR COMMITTING

WAR

CRIME OF KILLING OR WOUNDING TREACHEROUSLY INDIVIDUALS BELONGING TO

HOSTILE NATION OR ARMED FORCE WITH RESPECT TO THE ATTACK DATED

20 OCTOBER

CAN BE CONFIRMED?

[ISSUE III] WHETHER THE CHARGE AGAINST THE DEFENDANT FOR COMMITTING THE
WAR CRIME CONTAINED WITHIN 8(2)(B)(VII) WITH THE CRIMINAL RESPONSIBILITY
UNDER

25(3)(B)?

[ISSUE: IV] WHETHER THE CHARGE AGAINST THE DEFENDANT FOR COMMITTING CRIME
AGAINST HUMANITY CONTAINED WITHIN

7(1)(G)THROUGH COMMAND RESPONSIBILITY

CAN BE CONFIRMED?

ARGUMENTS IN DETAIL

ISSUE I: WHETHER THE CHARGE AGAINST THE ACCUSED FOR COMMITTING THE WAR CRIME
CONTAINED WITHIN

8(2)(E)(III) WITH THE CRIMINAL RESPONSIBILITY BEING OF ACTING

THROUGH ANOTHER PERSON CAN BE CONFIRMED?

[1.1] THE PERPETRATOR NEITHER DIRECTED NOR INTENTED AN ATTACK ON IPSF

COMPOUND

4
Written Submissions on behalf of the Defence

[1.2] SUCH PERSONNEL AND UNITS WERE NOT ENTITLED TO THAT PROTECTION GIVEN
TO

CIVILIANS OR CIVILIAN OBJECT UNDER THE INTERNATIONAL LAW OF ARMED

CONFLICT

[1.3] TORTUGA BEARS NO RESPONSIBILITY FOR WAR CRIME OF INTENTIONALLY

DIRECTING ATTACKS ON IPSF PERSONNEL UNDER ARTICLE 25(III)(A)
ISSUE II: WHETHER THE CHARGE AGAINST THE

ACCUSED FOR COMMITTING

7
WAR CRIME OF

KILLING OR WOUNDING TREACHEROUSLY INDIVIDUALS BELONGING TO HOSTILE NATION OR

ARMED FORCE WITH RESPECT TO THE ATTACK DATED

20 OCTOBER CAN BE CONFIRMED?

[2.1] TORTUGA EXERCISED NO AUTHORITY OVER MENDERLEE

[2.1.1]. TORTUGA COULD NOT EXERT HIS POSITION OF AUTHORITY OVER MENDERLEE

[2.1.2]. NO POSITION OF AUTHORITY EXISTED

[2.2]. THE MENS REA FOR ORDERING HAS NOT BEEN SATISFIED IN THE PRESENT CASE 10
[2.3] THE ARMED CONFLICT INVOLVING THE IPSF WOULD NOT BE RENDERED TO BE
INTERNATIONAL

11

[2.3.1]. THE CONFLICT BETWEEN SAXONIA ON ONE HAND AND ABERDEEN AND ROSENIA ON
THE OTHER WOULD NOT INTERNATIONALIZED THE ALREADY EXISTING ARMED CONFLICT
BETWEEN THE

SLA AND SDF

11

[2.3.2]. THE HOSTILITIES ENGAGED BY THE IPSF WOULD NOT RENDER THE CONFLICT AS AN
INTERNATIONAL ARMED CONFLICT

11

[2.4] THE INTERNATIONAL ARMED CONFLICT TOOK PLACE BETWEEN THE STATES

12

[2.5] AN INTERNAL ARMED CONFLICT TOOK PLACE BETWEEN THE SDF AND THE SLA
ALONG WITH THE

IPSF

12

[2.6] THE ARMED CONFLICT BETWEEN THE SDF ON ONE HAND AND SLA AND IPSF
WOULD BE

CONCURRENT TO THE ARMED CONFLICT BETWEEN THE STATES

12

[2.7] THE IPSF NEITHER HAD EFFECTIVE CONTROL NOR OVERALL CONTROL OVER THE
SLA

13

[2.8] THE HRP REPORT STATED THAT ATTACK WAS CARRIED OUT BY A GROUP WHICH
SPLINTERED FROM THE

SDF

14

ISSUE III: WHETHER THE CHARGE AGAINST THE ACCUSED FOR WAR CRIME CONTAINED
UNDER ARTICLE

8(2)(B)(VII) CAN BE CONFIRMED FOR THE ATTACK AGAINST IPSF OUTPOST 25

OCTOBER 2013, ON THE BASIS OF CRIMINAL RESPONSIBILITY UNDER ARTICLE 25 (3)(B)?

Written Submissions on behalf of the Defence

14

[3.2] THE ACCUSED DOES NOT BEAR CRIMINAL RESPONSIBILITY UNDER ARTICLE 25(3)
(B) AND NO CRIMES EMANATED FROM HIS ORDER

15

[3.3] THE REPORT OF, AND THE CLAIMS MADE BY THE 4TH SUICIDE BOMBER ARE
WHOLLY UNRELIABLE

16

ISSUE IV: WHETHER THE CHARGE AGAINST THE ACCUSED FOR COMMITTING THE CRIME
AGAINST

HUMANITY OF RAPE WITH RESPECT TO THE INCIDENTS TAKING PLACE AGAINST

CIVILIANS ON JUNE

2013 ON THE BASIS OF COMMAND RESPONSIBILITY CAN BE CONFIRMED?

17

[4.1] ALLEGED ACTS OF RAPE ARE NOT A CRIME AGAINST HUMANITY

17

[4.2] THE CONDUCT OF RAPE WAS NOT COMMITTED AS PART OF A WIDESPREAD OR

SYSTEMATIC ATTACK AGAINST A CIVILIAN POPULATION

17

[4.3] GENERAL TORTUGA BEARS NO RESPONSIBILITY FOR THE CRIMES IN REFERENCE

TO

COMMAND RESPONSIBILITY

19

[4.3.2] NO OMISSION OF DUTY VIS--VIS MENS REA

20

63. [4.3.3] CAUSATION

21

PRAYER

22

Written Submissions on behalf of the Defence

STATEMENT OF FACTS
[I]. BACKGROUND
President Charles DeNiro ruled the Republic of Saxonia since 2000. General Taxon Tortuga
is a close political ally and the leader of the Saxonia Defense Forces (SDF). His regime
became synonymous with political repression, arbitrary arrests, and restrictions on freedom
of speech and expression and corruption.
On 15 January 2013, around 15,000 protestors decided to protest in the second largest city of
the country, Zolta. They called for a resignation of the president. In the wake of these
protests, the government decided to impose censorship on the internet, further enraging the
protestors, especially the young generation.
This lead to the creation of a militant group known as Saxonian Liberation Army (SLA),
whose leader was Col. Gustav. Their objective was a resignation from the President and a
national election. They attacked the police and the military in the Southern part of Zolta and
took control of the local administrative council. SLA was declared as a terror outfit by the
government. Colonel Menderlee, in charge of the SDF forces in Zolta, was a popular figure
and his troops swore loyalty only to him and claimed to answer to him. He was
communicated to the General directly and took instruction from him directly.
[II]. DEMONSTRATIONS AND CRACKDOWN IN NORTH ZOLTA
Local activists in the Northern Zolta wanted to organize a protest and occupy the Town Hall.
They were sympathetic to the cause SLA but not to the use of violence.. The objective of the
march was to occupy the town hall and to protest against the government. Meanwhile, SDF
was planning to take the southern part of the city from the control of SLA and so the
government declared a martial law in Zolta and its suburbs.
In a meeting on 10 June 2013, General Tortuga and the Colonel Menderlee met with other
important officials in the Town Hall. General prohibited the march and advised SDF to take
any necessary measures to prevent it. One military officer recounts martial law being
imposed by this meeting and another military staff recounted that there was a minor
disagreement between the General and the colonel over the operational strategy to prevent
this march.

Written Submissions on behalf of the Defence

On the morning of 13 June 2013, around 5,000 residents gathered to demonstrate and march
towards the Town Hall. As the demonstrators were approaching the Town Hall, the SDF used
tear gas and plastic bullets to disperse the crowd. Some armed demonstrators then attacked
the SDF soldiers with concealed firearms, killing five and wounding several others. SDF
soldiers using live ammunition killed twenty persons, and arrested around 150. However,
about 200 demonstrators succeeded in occupying another building in the vicinity the
National Technical Institute (NTI). At around midnight, an SDF unit entered the NTI building
to carry out a search, which lead to acts of violence. A demonstrator testified later that she
was taken with several other women to the basement of the building where they were raped
repeatedly, before being transferred to a detention facility operated by the Ministry of
Security. She was eventually released on 17 June 2013. Two other women described in detail
how they were arrested outside the NTI, taken to the detention facility to be interrogated, and
raped there by soldiers before being let go the following morning. The SDF raided scores of
homes in the city of Zolta and arrested persons suspected of participation in the
demonstration or supporting the SLA. Their women were also apprehended and taken to the
detention facility. Human Rights Protection estimated that several women were victims of
various forms of sexual violence, including gang rape. They further reported that even minor
girls had been sexually tortured at gunpoint. Al Jazeera and BBC also reported incidents of
sexual assaults on local residents perpetrated by pro-government militants.
[III]. DEPLOYMENT OF INTERNATIONAL PEACE AND SECURITY FORCE
Since April 2013, following the launch of the offensive in the south of the country, the Air
Defense Force have been bombing alleged SLA bases. The resulting civilian casualties were
reported by international media and condemned by the UN Secretary-General. The
humanitarian situation in Saxonia rapidly drew the attention of the international community
with large number of persons leaving their home to take refuge outside the bombarded towns.
On 20 July, the UN Security Council adopted Resolution 367/2013. President DeNiro
announced that the government would comply with Resolution 367 and implement a
ceasefire and, deploy IPSF in Saxonia. The IPSF consisted of a Military Observers Unit
(MOU), a Civilian Police Unit (CPU) and a Protection Force Unit (PFU). The CPU
(composed of 80 police officers) was mandated to maintain public security and was armed
with light weapons. The PFU (composed of 400 military personnel) had the specific tasks of
protecting the civilian population and IPSF non-military personnel. Aberdeen and Rosenia,
two neighboring countries, and seven other countries contributed to all IPSF components.

Written Submissions on behalf of the Defence

Within the two weeks following the IPSFs arrival, the fighting between the SLA and the
SDF started to resume. The PFU had several violent confrontations with SDF units as the
latter were firing at areas where civilians were concentrated in their attempts to regain control
over two towns in the region. Some media reported, based on unnamed sources within the
Saxonia government, that the relations between General Tortuga and Colonel Menderlee were
increasingly frictional and acrimonious.
[V]. ATTACK ON IPSF COMPOUND AND OUTPOST
On the morning of 15 September 2013, two SDF fighter jets attacked suspected SLA bases in
civilian areas near the IPSF compound. IPSF immediately requested General Tortuga to cease
the attack after shells landed on civilian buildings, but the demand went unheeded.
Subsequently, anti-aircraft machineguns fired at the fighter jets from the IPSF compound.
The air raid was discontinued in the afternoon. After sunset the same day, a group of around
one hundred armed assailants attacked the IPSF base, killing eight IPSF personnel, and
wounded twenty. Many IPSF soldiers said they were able to identify the assailants as
belonging to the SDF. Some, outside the compound, spotted Colonel Menderlee during the
attack. The SDF and SLA initially blamed each other for the attack. President DeNiro later
accused the IPSF of siding with the SLA. International media reported that Tortuga had been
in the region for a few days, supervising SDF operations.
[V]. ATTACK ON IPSF OUTPOST
On 2 October, the IPSF received intelligence reports that the numbers of SDF air strikes were
to be increased and carried out over larger areas. In support of the IPSF operations, the air
forces of Aberdeen and Rosenia intervened by bombing two major air bases, thus
immobilizing most of SDFs air force. President DeNiro then stated that the international
force was deployed to facilitate regime change, which was a blatant infringement of
Saxonias sovereignty. He subsequently declared that the IPSF was no longer welcome in
this country and should leave immediately.
In Zolta, the IPSF was fending off the SDFs advancement to the south and trying to protect
civilians from the effect of hostilities. The IPSF also gave military and law enforcement
trainings to the SLA members. The IPSF and SLA shared intelligence when necessary, while
other communication between IPSF and the SDF were reduced to a minimum. On the
morning of 20 October, the SDF and the SLA had an intense exchange of fire in suburban
Zolta. At noon, four cars and minivans approached an IPSF outpost; around twenty

Written Submissions on behalf of the Defence

passengers in the four vehicles claimed to be civilians displaced by the morning fighting. The
vehicles were apparently loaded with personal belongings. The passengers told the IPSF
soldiers that the SDF were after them since they were suspected of supporting the SLA. They
asked if they could shelter in the IPSF station. Colonel Peterson, the IPSF commander,
eventually ordered a search of the vehicles. As they were instructed to drive into a certain
area for inspection, the vehicles suddenly drove at the IPSF members at full speed and
opened fire. Dozens of grenades and explosives were thrown at the buildings and personnel at
the station.
The surprise attack resulted in three deaths and two injuries of SLA fighters, 20 deaths and 35
injuries of IPSF soldiers. The vehicles stormed out of the station. Three injured attackers
unable to escape were captured by the IPSF and received medical treatment. They eventually
admitted that they were members of the SDF. The IPSF condemned this attack in strong
terms and requested the Saxonian government to ensure that the attackers were held
responsible for the deaths and injuries of IPSF personnel. General Tortuga responded that he
had no prior knowledge of the attack and those assailants were militants over whom he had
no control. However, the leader of the group that carried out the attack, Haber Houston,
recognized in an interview with Al Jazeera that their attack was coordinated and planned by
the SDF, and that Colonel Menderlee personally greeted him for the success of the
operations. A Human Rights Protection report stated that an SDF unit that had broken away
from the SDF probably carried out the attack.
The International Committee of the Red Cross (ICRC) sought permission from the
Government of Saxonia to provide medical services to the soldiers injured during the war. A
local news channel reported that the Government had granted the ICRC permission to carry
out its humanitarian activities in the war ravaged regions. On 25 October, a minivan
containing four men dressed in ICRC uniform and bearing the Red Cross Emblem entered the
IPSF compound and introduced themselves as doctors to Colonel Peterson. Believing the
news channels report to be true, Peterson allowed the four men posing as ICRC doctors to
tend to the injured soldiers. Once inside the camp, the three of those men who actually were
suicide bombers detonated the bomb, further leading to the death of 15 IPSF personnel with
another 12 being severely injured. The fourth suicide bomber could not successfully detonate
the bomb, as a result of which although no one else was killed, but he himself was fatally
injured. Before he died, he abused and cursed Colonel Peterson and the IPSF soldiers under
his command for violating the sovereignty and integrity of Saxonia and said that General
Written Submissions on behalf of the Defence

Tortuga would keep on sanctioning such fidayeen attacks until they were gone from the
Saxonian territory. UN Secretary General forcefully criticized this blatant violation of
international law by the Saxonian Government. President DeNiro and General Tortuga
vehemently denied the SDFs involvement in the suicide attack. They further stated that the
Government never granted any permission to the ICRC to carry out its activities in the
country.
The international community condemned General Tortuga and the government of Saxonia
over the despicable attack against the IPSF outpost in suburban Zolta, and increased its
material support for the IPSF. Meanwhile, the DeNiro governments legitimacy was
increasingly challenged domestically. On 6 December 2013, President DeNiro stepped down.
Upon the end of hostilities between the parties, a new election was held with the assistance
from the IPSF. Gustav Henson, the SLA leader, was elected President of Saxonia. With the
reshuffles in the military structure and change of political climate, General Tortuga was no
longer able to hold his post. Victims of the past conflict in Saxonia requested proper
investigation and those responsible be punished.
[VI]. COUNTS AGAINST GENERAL TORTUGA
Count One With respect to the incidents against civilians taking place in north Zolta in June
2013, on the basis of command responsibility (Article 28(a)): the crime against humanity of
rape under Article 7(1)(g) of the Rome Statute.
Count Two With respect to the attack against the IPSF compound on 15 September 2013,
on the basis of individual criminal responsibility (Article 25 (3)(a)): the war crime of
intentionally directing attacks against personnel, installations, material, units or vehicles
involved in a peacekeeping mission in accordance with the Charter of the United Nations, as
long as they are entitled to the protection given to civilians or civilian objects under the
international law of armed conflict under Article 8(2)(e)(iii) of the Rome Statute.
Count Three With respect to the attack against IPSF outpost in suburban Zolta on 20
October 2013, on the basis of individual criminal responsibility (Article 25 (3)(b)): the war
crime of killing or wounding treacherously individuals belonging to the hostile nation or
army under Article 8(2)(b)(xi).
Count Four With respect to the attack against IPSF outpost by suicide bombers on 25
October 2013, on the basis of individual criminal responsibility (Article 25 (3)(b)): -the war
crime of making improper use of a flag of truce, of the flag or of the military insignia and
uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the
Geneva Conventions, resulting in death or serious personal injury under Article
Written Submissions on behalf of the Defence

8(2)(b)(vii).

Written Submissions on behalf of the Defence

ISSUES PRESENTED
[A]. Whether the charge against the accused for committing the War Crime contained within
Article 8(2)(e)(iii) with the criminal responsibility being of acting through another person can
be confirmed for the attack against IPSF compound on 15th September 2013?
[B]. Whether the charge against the accused for committing War Crime of killing or
wounding treacherously individuals belonging to hostile nation or armed force with respect to
the attack dated 20 October can be confirmed?
[C]. Whether the charge against the accused for War Crime contained under Article 8(2)(b)
(vii) can be confirmed for the attack against IPSF outpost 25 October 2013, on the basis of
criminal responsibility under Article 25 (3)(b) can be confirmed?
[D]. Whether the charge against the accused the crime against humanity of rape under Article
7(1)(g) of the Rome Statute with the criminal responsibility being of command responsibility
in reference to Article 28(a) can be confirmed?
[E]. Whether the prosecution has tendered sufficient evidence to establish the existence of
substantial grounds to believe that the accused has committed the crimes that he has been
charged for, confirm the charges and subsequently commit the accused for trial?

Written Submissions on behalf of the Defence

SUMMARY OF ARGUMENTS
[ISSUE I] WHETHER
CRIME

THE CHARGE AGAINST THE DEFENDANT FOR COMMITTING THE

CONTAINED WITHIN

8(2)(E)(III)

WAR

WITH THE CRIMINAL RESPONSIBILITY BEING OF

ACTING THROUGH ANOTHER PERSON CAN BE CONFIRMED?

To direct an attack one has to plan, instigate, order, commit or otherwise aid and abet in
carrying out of said attack. The crime must be committed with intention and knowledge,
Article 8(2)(e)(iii) specifies that the crime has to be committed intentionally. Tortuga had
no intention of attacking IPSF compound as Tortuga did not give any directives regarding the
IPSF compound. There is no direct or circumstantial evidence to prove that Tortuga had
planned, ordered, committed or otherwise aided and abated in carrying out said attack. There
is no clear evidence regarding who perpetrated the attack i.e. SDF or SLA as after the attack
both of the groups blamed each other for the attack. The personnel and units of IPSF were not
entitled to that protection given to civilians under international law of armed conflict as they
took part in direct hostilities with the SDF. Tortuga does not bear the criminal responsibility
for indirect perpetrating the attack on the compound as indirect perpetration requires effective
control over other person who is committing the material elements of the crime (one person
controls the will of other person), in the present scenario there was no such case. The SDF
Commander in Zolta was Menderlee who was a popular figure among his forces, who swore
loyalty to him and claimed to only to answer him. There was a constant disagreement
between Menderlee and Tortuga as it was seen on various occasions like military staff
meeting of 10th June where military staff recounted that there was some disagreement
between them and international media also reported that relations between Tortuga and
Menderlee were increasingly frictional and acrimonious.
[ISSUE II] WHETHER THE CHARGE AGAINST THE

ACCUSED FOR COMMITTING WAR

CRIME

OF KILLING OR WOUNDING TREACHEROUSLY INDIVIDUALS BELONGING TO HOSTILE

NATION OR ARMED FORCE WITH RESPECT TO THE ATTACK DATED

20 OCTOBER

CAN BE

CONFIRMED?

The charge against General Tortuga cannot be confirmed due to the absence of a nexus of the
act which so occurred and the international armed conflict. There were two armed conflicts
occurring concurrently, i.e. one between the states and one between the SLA and the SDF
along with the IPSF. As the ISPF was part of the internal armed hostilities, the acts which
were supposedly directed by the SDF against the SLA and the IPSF would take place only in

Written Submissions on behalf of the Defence

the context of an internal armed conflict. Additionally, Tortuga could not ordered the
commission of the crime as he could no longer exercise his position of authority over
Menderlee, due to which the actus reus for ordering would not be satisfied. Lastly, the Human
Rights Protection report clearly stated that the attack was carried out by an SDF unit which
had broken away from the SDF, clearly showing that both the actus reus and mens rea were
not satisfied.
[ISSUE III] WHETHER THE CHARGE AGAINST THE DEFENDANT FOR COMMITTING THE WAR
CRIME CONTAINED WITHIN 8(2)(B)(VII) WITH THE CRIMINAL RESPONSIBILITY UNDER 25(3)
(B)?
It is submitted before this Honble Court that 2 key elements required for General Tortugas
conduct to be the war crime of making improper use of the distinctive emblems of the
Geneva Conventions, resulting in death or serious personal injury under Article 8(2)(b)(vii)
as listed in the Elements of Crime are not fulfilled. First, Element 1 is not satisfied as the
defendant did not on his own use or by his orders caused to be used, improperly, the
distinctive emblems of the Geneva Conventions. Second, Element 6 is not satisfied as the
conduct did not take place in the context of and was not associated with international armed
conflict. Thus General Tortuga cannot be held liable for a war crime that has not been
committed. It is also submitted that General Tortuga had no involvement in the suicide
bombings carried out at the IPSF outpost. No crime emanated from any of his orders. There is
no reliable proof or testimony of the fact that these fidayeen attacks were carried out on the
orders of General Tortuga.
[ISSUE: IV] WHETHER

THE CHARGE AGAINST THE DEFENDANT FOR COMMITTING CRIME

AGAINST HUMANITY CONTAINED WITHIN

7(1)(G)THROUGH

COMMAND RESPONSIBILITY

CAN BE CONFIRMED?

As according to the ICC in Bemba Decision, four elements need to be satisfied in order to
prove command responsibility under Article 28(a), being an underlying offence within the
jurisdiction of the court, superior-subordinate relationship and control between the perpetrator
and forces accused of committing the crime, omission/failure on part of the perpetrator in
fulfilling duties as the superior commander, which in effect, caused continued commission of
crimes with the perpetrators mens rea.
As per the facts at hand, the crime against humanity of rape is not committed by the SDF
operating in North Zolta as such attack was not a part of a widespread, systematic attack on a
civilian population, considering the singular instance at the NTI building. Events

Written Submissions on behalf of the Defence

precipitating in the detention center, administered by the Ministry of Security, were not under
the effective control of the SDF Commander, General Tortuga who was the commander of
the SDF at the highest level, responsible for eliminating the threat of SLA in Saxonia
generally, and Zolta via his zonal commanders, like Col. Menderlee. The singular instance of
violence at the NTI building involving the SDF was swiftly dealt with, by the General in his
instructions to Col. Menderlee, and successfully repressed the crime, which were not repeated
therefrom by the SDF. Thus, the General successfully fulfilled the duties arising from his
superior subordinate relationship with the SDF operating in North Zolta, which helped in no
future crimes being committed by the SDF. With regards to acts committed in, or by, Ministry
of Securitys forces and institutions, General Tortuga had no effective command and control,
with the lack of which, no causation for such crimes may be attributed to General Tortuga on
the basis of Command Responsibility under article 28(a).

Written Submissions on behalf of the Defence

ARGUMENTS IN DETAIL
ISSUE I: WHETHER THE CHARGE AGAINST THE ACCUSED FOR COMMITTING THE WAR CRIME
CONTAINED WITHIN

8(2)(E)(III) WITH THE CRIMINAL RESPONSIBILITY BEING OF ACTING

THROUGH ANOTHER PERSON CAN BE CONFIRMED?

1. Under Article 8(2)(e)(iii) war crime of intentionally directing attacks against personnel,
installations, materials, units or vehicles involved in a peacekeeping mission in accordance
with the Charter of the United Nations is mentioned. 1 It is humbly submitted before this
Honble Court that the accused should not be charged with war crime under Article 8(2)(e)
(iii) as Elements of Crime under Article 8(2)(e)(iii) requires seven elements to be satisfied 2,
out of which Element 1 and Element 4 is not satisfied.
[1.1] THE PERPETRATOR

NEITHER

DIRECTED

NOR

INTENTED

AN

ATTACK

ON

IPSF

COMPOUND
2. To direct an attack one has to plan, instigate, order, commit or otherwise aid and abet in
carrying out of said attack.3
3. The crime must be committed with intention and knowledge, as indicated in Article 30 of
the Rome Statute. However it should be noted that Article 8(2)(e)(iii) specifies that the crime
has to be committed intentionally. The word intentionally is nothing but a repetition of
Article 30(2)(a) of the Statute.4
4. In case of Abu Garda found that the offence under Article 8(2)(e)(iii) first and foremost
encompasses dolus directus of first degree.5
1 Rome Statute, 2187 U.N.T.S. 90 (1998), art. 8(2)(e)(iii).
2 Rome Statute, Elements of Crimes, ICC-ASP/1/3 (2002), art. 8(2)(e)(iii).
3

Prosecutor

v.

Blaskic,

Case

No.

(IT-95-14),

Judgment,

(Jul.

29,

2004),

www.icty.org/x/cases/blaskic/acjug/en/bla-aj040729e.pdf.
4 The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Decision on confirmation
of charges, (Sep. 26, 2008), https://www.icc-cpi.int/iccdocs/doc/doc571253.pdf.
5 The Prosecutor v. Bahar Idriss Abu Garda, Case No. ICC-02/05-02/09, Confirmation of
Charges Decision (Pre-Trial Chamber), (Feb. 8, 2010).

Written Submissions on behalf of the Defence

5. Tortuga had no intention of attacking IPSF compound as Tortuga did not give
predetermined directives regarding the IPSF compound. There is no direct or circumstantial
evidence to prove that Tortuga had planned, instigated, ordered, committed or otherwise
aided and abated in carrying out said attack on 15 th September 2013. There is no clear
evidence regarding who perpetrated the attack i.e. SDF or SLA as after the attack both of the
groups blamed each other for the attack. 6
6. It is humbly submitted before this Honble Court that General Tortuga did not directed the
attack against IPSF compound on 15th September 2013 as he had neither intention for the
same nor he directed or ordered or predetermined such attack.
[1.2] SUCH PERSONNEL AND UNITS WERE NOT ENTITLED TO THAT PROTECTION GIVEN TO
CIVILIANS OR CIVILIAN OBJECT UNDER THE INTERNATIONAL LAW OF ARMED CONFLICT
7. Personnel in humanitarian assistance and peacekeeping missions are entitled to the
protection of civilians as long as they are not taking a direct part in hostilities.7
8. It is humbly submitted before this Honble Court that the personnel and units of IPSF
were not entitled to that protection given to civilians or civilian object under international law
of armed conflict as they took part in the direct hostilities with the armed forces of Saxonia.8
9. Where the force used by UN forces is of a nature and intensity as would otherwise bring
into effect an armed conflict, it ought to be recognized that they are involved in one, despite
the fact that they act lawfully (in terms of the jus ad bellum) in using such force. That legality
under the jus ad bellum ought not to free from the constraints that international humanitarian
law would impose.9
10. The determination of whether a person is directly participating in hostilities requires a
case-by-case analysis.10 In Abu Garda11 case the Pre Trial Chamber exemplified direct
participation in hostilities to include bearing, using or taking up arms, taking part in
6 Moot Proposition 19.
7 Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, Case No. SCSL-0415-T, Sentencing Judgment (Trial Chamber), (Mar. 2, 2009).
8 Moot Proposition 14.
9 E. Wilmshurst, International Law and the Classification of Conflicts 159 (OUP 2012).

Written Submissions on behalf of the Defence

military or hostile acts, activities, conduct or operations, armed fighting or combat,

participating in attacks against enemy personnel, property or equipment, transmitting military
information for immediate use of a belligerent, and transporting weapons in proximity to
combat operations.
In the present case involvement of IPSF personnel in hostilities with SDF was not in lieu of
their individual right of self-defence; they fired anti-aircraft machineguns at fighter jets of
Saxonian Army.12 The Trial Chamber of the Special Court for Sierra Leone put it in RUF
Judgment13 that where peacekeepers become combatants, they can be legitimate targets for
the extent of their participation in accordance with international humanitarian law, their
protection would not cease if the personnel use armed force only in exercising their right to
individual self-defence.
11. The status of United Nations personnel using armed force also challenges traditional
notions of combatancy. The 1994 Convention on the Safety of United Nations and Associated
Personnel provides protection from attack for military and police personnel on a UN
operation.14 The Safety Convention does not apply to an enforcement action under Chapter
VII of the Charter of the United Nations in which any of the personnel are engaged as
combatants against organized armed forces and to which the law of international armed
conflict applies.15 In such cases combatant status for United Nations personnel would be
based on international humanitarian law criteria including the association of the armed forces
with the state that provides the forces.
10 The Prosecutor v. Bahar Idriss Abu Garda, Case No. ICC-02/05-02/09, Confirmation of
Charges Decision (Pre-Trial Chamber), (Feb. 8, 2010).
11 Id.
12 Moot Proposition 15.
13 Supra note 7.
14 Convention on the Safety of United Nations and Associated Personnel, 2051 U.N.T.S. 363
(1994), arts. 1 and 7.
15 Convention on the Safety of United Nations and Associated Personnel, 2051 U.N.T.S. 363
(1994), art. 2.

Written Submissions on behalf of the Defence

12. The IPSF was authorized under Chapter VII of the Charter of United Nation and they
had several violent confrontations with SDF which was not in light of their self-defense.16
13. In August 1999 the Secretary General issued a bulletin which states the fundamental
principles and rules of international humanitarian law set out in the present bulletin are
applicable to United Nations forces when in situations of armed conflict they are actively
engaged therein as combatants, to the extent and for the duration of their engagement. These
rules apply in enforcement actions and in peacekeeping operations when the use of force is
permitted in self-defence.17
14. While any military component of any peacekeeping mission may, in the course of
defending itself or in carrying out its protection of civilians mandate, become engaged in
sustained or intensive armed hostilities in the context of an ongoing non-international armed
conflict in the host country, and thereby become a party to the conflict. When IPSF becomes
a party to the conflict, in addition to their own obligations under international humanitarian
law, its military personnel would lose their protected status and become lawful targets under
international humanitarian law.
15. It is humbly submitted before this Honble Court that IPSF personnel were not entitled
to the protection given to civilians in international law of armed conflict as they participated
in direct hostilities with SDF after which they became a party to the conflict.
[1.3] TORTUGA BEARS NO RESPONSIBILITY

FOR

WAR CRIME

OF

INTENTIONALLY

DIRECTING ATTACKS ON IPSF PERSONNEL UNDER ARTICLE 25(III)(A)

16. Article 25(3)(a) speaks of commission of a crime through another person. The ICC
refers in this context to indirect perpetration, a doctrine of criminal responsibility on the
basis of commissionthat is, responsibility as principalwhich, like its direct counterpart,
is founded on the notion of control over the crime.18

16 Moot Proposition 14.

17 Secretary-Generals Bulletin, Observance by United Nations forces of International
Humanitarian Law, 12 August 1999, art 1.1.
18 The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Decision on
confirmation of charges, (Sep. 26, 2008), https://www.icc-cpi.int/iccdocs/doc/doc571253.pdf.

Written Submissions on behalf of the Defence

17. The indirect perpetrator (or, in common law terms, the perpetrator by means), uses the
physical perpetrator as a tool or an instrument for the commission of the crime. The physical
perpetrator is criminally responsible for his fulfilment of elements of the crime and the
indirect perpetrator for his control over the crime via his control over the will of the direct
perpetrator.19 The concept of indirect perpetration is the case of the so-called perpetrator
behind the perpetrator, where the direct perpetrator is manipulated or exploited by the
indirect perpetrator to commit the crime, but who nevertheless remains a fully responsible
agent. This has been formulated by the Lubanga Appeals Chamber as being based on the
notion that a person can commit a crime through another person. The underlying assumption
is that accused makes use of another person, who actually carries out the incriminated
conduct, by virtue of the accuseds control over that person, and the latters conduct is
therefore imputed on the former.20
18. To be held criminally responsible on the basis of indirect perpetration for committing a
crime whose material elements are performed by another or others, the accused must exercise
control over the crime.21 The case of indirect perpetration is where one person controls the
will of another,22 reducing the second to an instrument of his or her own will, and uses that
other to commit the material elements of the crime.
General Tortuga does not bear the criminal responsibility for indirect perpetrating the attack
on IPSF compound as indirect perpetration requires effective control over other person who
is committing the material elements of the crime (one person controls the will of other
person), in the present scenario there was no such case. The SDF Commander in Zolta was
Colonel Menderlee who was a popular figure among his forces, who swore loyalty to him and
19 Id.
20 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-8, Decision on the
Prosecutors Application for a Warrant of Arrest, (Feb. 10, 2006), https://www.icccpi.int/iccdocs/doc/doc236260.PDF.
21 The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision
Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against

Jean-Pierre

Bemba

Gombo,

(Jun.

15,

2009),

https://www.icc-

cpi.int/iccdocs/doc/doc699541.pdf.
22 The Prosecutor v. Bahar Idriss Abu Garda, Case No. ICC-02/05-02/09, Confirmation of
Charges Decision (Pre-Trial Chamber), (Feb. 8, 2010).

Written Submissions on behalf of the Defence

claimed to only to answer him.23 There was a constant disagreement between Colonel
Menderlee and General Tortuga as it was seen on various occasions like military staff
meeting of 10th June 2013 where military staff recounted that there was some disagreement
between Tortuga and Menderlee and international media also reported that relations between
General Tortuga and Colonel Menderlee were increasingly frictional and acrimonious.24
19. All these circumstances show that there was a constant disagreement between Tortuga
and Menderlee which proves that Colonel Menderlee was not working on the will of General
Tortuga which is essential for indirect perpetration. There are some instances which shows
that Menderlee was not working on the orders of Tortuga such as when Tortuga ordered to
exercise restraint in use of excessive force on the women of terrorists (SLA), but excessive
force was used by Menderlees force.25
20. It is humbly submitted before this Honble Court that General Tortuga bear no criminal
responsibility under Article 25(3)(a) as SDF was working on the orders of Menderlee not of
Tortuga and Tortuga had no control over the will of Menderlee.
ISSUE II: WHETHER THE CHARGE AGAINST THE

ACCUSED FOR COMMITTING

WAR CRIME OF

KILLING OR WOUNDING TREACHEROUSLY INDIVIDUALS BELONGING TO HOSTILE NATION OR

ARMED FORCE WITH RESPECT TO THE ATTACK DATED

20 OCTOBER CAN BE CONFIRMED?

21. It is brought to the Courts attention that the Accused would not attract liability under
Article 25(3)(b), first alternative, that is of ordering the commission of the crime. Due to the
increasing amount of friction and disagreement between Tortuga and Menderlee regarding
operational strategies26, Tortuga could no longer use his position of authority over Menderlee.
Additionally, the statement made on 15th October, 2013, was made to the staff at large and
would not satisfy the mens rea of ordering, that is ordering with the direct intent of giving
such an order. Lastly, only an international armed conflict occurred between Saxonia on one
hand and Rosenia and Aberdeen on the other. The same would not internationalize the armed
conflict between the SDF and the SLA.

23 Moot Proposition 6.
24 Moot Proposition 14.
25 Moot Proposition 11.
26 Moot Proposition 8.

Written Submissions on behalf of the Defence

[2.1] TORTUGA EXERCISED NO AUTHORITY OVER MENDERLEE

22. Even though Tortuga was the de jure head of the SDF27, due to the increasing
disagreement over operational strategies, and the deterioration of the acrimonious
relationship between Tortuga and Menderlee, Tortuga could no longer exercise his position of
authority over Menderlee. Additionally, Menderlee was the commander in Zolta and
Menderlees forces swore allegiance only to him, were answerable only to him and only
swore loyalty to him.28 Therefore, no order emanated from Tortuga, and Menderlee acted in a
manner in which he was solely responsible for ordering the attack on the IPSF outpost.
[2.1.1]. TORTUGA COULD NOT EXERT HIS POSITION OF AUTHORITY OVER MENDERLEE
23. Though the de jure head of the SDF, Tortuga could not have been said to have ordered
the attack upon the IPSF outpost as the material element of him exerting his position of
authority has not been satisfied. Tortuga had not involvement in the mounting of such an
attack and the same can be evinced from the interview conducted between Al-Jazeera and
Haber Houston wherein he claimed that he was personally greeted by Menerlee for the
success of the operation.29
[2.1.2]. NO POSITION OF AUTHORITY EXISTED
24. Ordering implies a superior-subordinate relationship" whereby the person in a position
of authority uses it to convince (or coerce) another to commit an offence. 30 Therefore,
ordering requires a person in a position of authority using that authority to instruct another to
commit an offence.31 The actus reus which has to be satisfied in order for an individual to
attract liability is when person uses his position of authority to order another person to
commit a crime.32 Another requirement is that the order must be of a binding nature or that
the order should otherwise compel another to commit a crime.33

27 Moot Proposition 1.
28 Moot Proposition 6.
29 Moot Proposition 7.
30 Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, (Sept. 2, 1998).
31 The Prosecutor v. Galic, Case No. IT-98-29-T, Trial Chamber Judgment, (Dec.5, 2003).

Written Submissions on behalf of the Defence

25. In the present case, Tortuga neither exercised any control or authority over the forces in
Zolta i.e. Menderlees forces nor did he pass any order in pursuance of his authority to
Menderlee, due to which any criminal responsibility arising from the attack would be against
Menderlee and not Tortuga.
26. [ARGUENDO]: No causal link existed between the ordering and perpetration of the
crime.
27. Even if it is to be assumed that orders emanated from Tortuga, an additional element for
ordering was developed in Stugar34 wherein the requirement was that the person ordering the
commission of a crime have authority over the person physically perpetrating the offence.
The same would not be satisfied in the present case as Menderlees troops in Zolta swore
allegiance to him and no one else, due to which Tortugas de facto authority would be
rendered irrelevant.
[2.2]. THE MENS REA FOR ORDERING HAS NOT BEEN SATISFIED IN THE PRESENT CASE
28. The constitutive elements of the mode of responsibility of ordering is the existence of
the requisite mental element (or mens rea) which is established when such person acted with
direct intent to give the order.35 Additionally, the actus reus for ordering is that a person in a
position of authority orders another person to commit an offence or orders an act or
omission.36 In the present case, no order emanated from Tortuga to Menderlee instructing him
to mount an attack against the IPSF outpost. The statement that measures be taken to end the
illegal occupation of the international force37, was made as a general remark highlighting the
deteriorating condition between the SDFs and IPSFs relation and was not in the mature of
32 The Prosecutor v. Andre Ntagerura, Emmanuel Bagambiki, Samuel Imanishimwe, Case
No. ICTR-99-46-A, Appeal Chamber Judgment, (July 7, 2006).
33 The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55-T, Trial Chamber
Judgment, (Sep. 12, 2006).
34 Prosecutor v. Pavle Strugar, Case No. IT-01-42, Trial Chamber Judgment, (Jan. 21, 2005).
35 Supra note 32.
36 Prosecutor v. Zigiranyirazo, Case No.ICTR-0173-T, Trial Chamber Judgment (Dec. 18,
2008).

Written Submissions on behalf of the Defence

the order. Furthermore, this statement was made at large to various members who were
present in the meeting and not just Menderlee. Therefore, as this statement was not in the
nature of an order and that there existed no direct intent of giving such order, it would be a
grave injustice if the charge along with the criminal responsibility under Article 25(3)(b) is
confirmed.
[2.3] THE ARMED CONFLICT INVOLVING

THE

IPSF

WOULD NOT BE RENDERED TO BE

INTERNATIONAL
29. It is brought to this Courts notice that both an international armed conflict can be
concurrent and coexist with an internal armed conflict, both of which would be separate from
one another. What has to be seen is the involvement of the parties and whether the acts
committed had a nexus between it and the existing international or non-international armed
conflict.
[2.3.1]. THE

CONFLICT BETWEEN

SAXONIA

ON ONE HAND AND

ABERDEEN

AND

ROSENIA

ON

THE OTHER WOULD NOT INTERNATIONALIZED THE ALREADY EXISTING ARMED CONFLICT
BETWEEN THE

SLA AND SDF

30. The term internationalized armed conflict describes internal hostilities that are
rendered international. In the present case, the internal conflict between the SDF on one hand
and the SLA and the IPSF on the other would not be internationalized merely by the armed
attack of Rosenia and Aberdeen, instead, there would exist two armed conflicts concurrently,
i.e. an internal armed conflict between the SDF and the SLA and an international armed
conflict between the SDF and the SLA.
[2.3.2]. THE

HOSTILITIES ENGAGED BY THE

IPSF

WOULD NOT RENDER THE CONFLICT AS AN

INTERNATIONAL ARMED CONFLICT

31. The IPSF would function as a subsidiary organ of the United Nations by virtue of them
being under UN command.38 When such a collective force is formed, it loses its individual
identity of belonging to any particular state and instead functions as a subsidiary organ of the
UN. Such troops would be under the sole mandate of the UN, and not of their respective
37 Moot Proposition 21.
38 Devon Whittle, Peacekeeping in conflict: the intervention brigade, MONUSCO, and the
application of international humanitarian law to United Nations forces, 8 J.
JUST. 850 (2010).

Written Submissions on behalf of the Defence

OF INT'L

CRIM.

states.39 Given also that the UN is not a state40, UN forces cannot be automatically seen as
forces of a state and hence should be seen as a non-state armed group. 41 Since, the conflict is
therefore between the State of Saxonia and an international organization, the armed conflict
would not satisfy the requirement of application of force between two or more states, due to
which an international armed conflict could not be said to exist. Due to this, as the elements
of an internal conflict have been satisfied, i.e. a protracted armed violence between the
government and an orgnizaed group, only an internal armed conflict could be said to exist.
[2.4] THE INTERNATIONAL ARMED CONFLICT TOOK PLACE BETWEEN THE STATES
32. Any difference arising between two states and leading to the intervention of the armed
forces is an international armed conflict.42 Therefore, the states involved in the international
armed conflict would be only the states of Saxonia, Aberdeen and Rosenia.43
[2.5] AN INTERNAL ARMED CONFLICT TOOK PLACE BETWEEN
ALONG WITH THE

THE

SDF

AND THE

SLA

IPSF

33. The armed conflict existed between the SDF and the SLA along with the IPSF, who
regularly exercised the use of force against the SDF, showing not only their involvement in
the armed conflict but also establishing that that all both the SLA and the IPSF were involved
in the hostilities. Hence, in the present case, two separate conflicts occurred, one internal
armed conflict between the SDF and the SLA along with the IPSF and an international armed
conflict between Saxonia and Aberdeen along with Rosenia.

39 E. Wilmshurst, International Law and the Classification of Conflicts 159 (OUP 2012).
40 Reparation for injuries suffered in the service of the Nations (Advisory Opinion), [1949]
I.C.J. Rep. 174 (Apr. 11, 1949).
41 Supra note 38.
42 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-8, Decision on the
Prosecutors Application for a Warrant of Arrest, (Feb. 10, 2006), https://www.icccpi.int/iccdocs/doc/doc236260.PDF.
43 Moot Proposition 20.

Written Submissions on behalf of the Defence

[2.6] THE ARMED CONFLICT

WOULD BE

BETWEEN THE

SDF

ON ONE HAND AND

SLA

AND

IPSF

CONCURRENT TO THE ARMED CONFLICT BETWEEN THE STATES

34. Evidence of the same can be imputed from the Nicaragua case44 decided by the I.C.J.,
wherein it was held that internal and international armed conflicts not only can occur
concurrently, but also that the nature of the parties must be analysed in order to determine the
nature of the armed conflict between them. In the aforementioned case, it was held that the
conflict between the contras and the Nicaraguan government was in the nature of an internal
armed conflict, while actions between the U.S. and Nicaragua would be regulated by the laws
pertaining to international armed conflict. Therefore, an already existing internal conflict is
not internationalized merely by virtue of a separate international armed conflict breaking out,
and each armed conflict is to be analysed individually and independently from the other.
35. This view also found recognition by the ICC by the Appeals Chamber decision in
Lubanga45, where the Court opined that depending on the particular actors involved, conflicts
taking place on a single territory at the same time may be of a different nature and hence both
international

and

non-international

armed

conflicts

may

co-exist.

An

act

of

internationalization only renders international the conflict between the parties belonging to
States rather than all conflicts in the territory.46 Hence, the idea that a war between two states
will automatically internationalize all armed conflicts occurring within the physical territory
in which the hostilities occur must be rejected, with the outcome being that the law of noninternational armed conflict would govern the relation between the state and the non-state
armed group.47

44 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America) Merits, Judgment, I.C.J. Reports 1986.
45 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-8, Decision on the
Prosecutors Application for a Warrant of Arrest, (Feb. 10, 2006), https://www.icccpi.int/iccdocs/doc/doc236260.PDF.
46 James G. Stewart, Towards a single definition of armed conflict in international
humanitarian law: A critique of internationalized armed conflict, 85 Interl Rev. of the Red
Cross 315 (2010).

Written Submissions on behalf of the Defence

[2.7] THE IPSF

NEITHER HAD

EFFECTIVE CONTROL

NOR

OVERALL CONTROL

OVER THE

SLA
36. The effective control test as devised by the ICJ 48 would only be applicable on when
forces act on behalf of a state, due to which it would be wholly inapplicable before the court.
The test lays down two categories for attributing actions of an armed group to a particular
state.49 As the IPSF is a subsidiary organ of the U.N., due to which it does not retain any
statehood. Hence, this test is inapplicable to determine whether an international armed
conflict existed or an internal one.
37. Secondly, the test developed in Tadic50, i.e. of overall control is also inapplicable in the
present case due to the aforementioned reason. The test was adopted only to determine
whether an armed group belonged or fought for a state. Hence, any test pertaining to the
degree of authority or control is rendered inconsequential as both the aforementioned tests
only apply to whether an armed group acted for a state.
38. [ARGUENDO]: Even if it is accepted that an internationalization of the internal conflict
between the SDF and SLA took place due to the use of force by the IPSF, that by itself would
render the IPSF collectively to lose their protection as is provided to civilians by the
international law of armed conflict.
[2.8] THE HRP REPORT
SPLINTERED FROM THE

STATED THAT

ATTACK

WAS CARRIED OUT BY A

GROUP

WHICH

SDF

39. The HRP report clearly and unequivocally stated that the attack was carried by an SDF
unit which had broken away, showing that neither did Tortuga have any prior knowledge of
the attack, nor did he have any control over the militants. The factual circumstances show
instead that it was Menderlee, who acted autonomously from Tortuga and that the leader of
47 Rain Livoja, Routledge Handbook of the Law of Armed Conflicted 151 (Routledge
Handbooks 2016).
48 Supra note 44.
49 Antonia Cassese, The Nicaragua and Tadic Tests revisited in light of the ICJ judgment on
Genocide in Bosnia, 18 E.J.I.L. 649 (2007).
50 Prosecutor v. Tadic, Case no. IT-94-1-A, Judgement, (Jul. 15, 1999).

Written Submissions on behalf of the Defence

the group who mounted an attack against the outpost was congratulated by Menderlee rather
than Tortuga.
40. Lastly, the Human Rights Protection Report is admissible before the Court as evinced
from the decision in Bemba, wherein the TC admitted report from the NGOs into evidence
stating that reports by NGOs could be considered prima facie reliable, provided they offered
sufficient guarantees of impartiality. Addtionally, NGO reports may be admitted for the
limited purpose that the information they contained may serve to corroborate other pieces of
evidence.
ISSUE III: WHETHER THE CHARGE AGAINST THE ACCUSED FOR WAR CRIME CONTAINED
UNDER ARTICLE

8(2)(B)(VII) CAN BE CONFIRMED FOR THE ATTACK AGAINST IPSF OUTPOST

25 OCTOBER 2013, ON THE BASIS OF CRIMINAL RESPONSIBILITY UNDER ARTICLE 25 (3)(B)?

41. It is contended that General Tortuga neither ordered, nor solicited, nor induced the
alleged war crime of misuse of distinctive emblems of the Geneva Convention.
42. Elements of Crimes under Article 8(2)(b)(vii) require seven elements for war crime of
improper use of the distinctive elements of Geneva Convention to be satisfied. Elements 1
and 6 of war crime of improper use of the distinctive elements of Geneva Convention are not
satisfied.
[3.1] ELEMENT 1 OF WAR CRIME OF MAKING IMPROPER USE OF THE DISTINCTIVE
EMBLEMS OF THE GENEVA CONVENTIONS IS NOT SATISFIED AS THE ACCUSED DID NOT
USE THE

DISTINCTIVE EMBLEMS OF THE GENEVA CONVENTIONS

43. It is humbly submitted that the accused never used nor intended to make improper use of
the distinctive emblems of the Geneva Convention. The Government of Saxonia never
granted any permission to the ICRC to carry out its activities in the country and it was solely
on the basis of certain false news reports aired by a local news channel that the IPSF
personnel got duped into believing the imposters posing as ICRC doctors. Neither did the
accused have anything to do with the improper use of the distinctive emblems of the Geneva
Convention made by the impostors and nor were the ensuing fidayeen attacks sanctioned by
or had anything to do with the accused.

Written Submissions on behalf of the Defence

[3.2] THE ACCUSED DOES NOT BEAR CRIMINAL RESPONSIBILITY UNDER ARTICLE 25(3)(B)
AND NO CRIMES

EMANATED FROM HIS ORDER

44. It is humbly submitted that General Tortuga had no involvement of any kind whatsoever
in the suicide attacks carried out by 4 suicide bombers posing as ICRC doctors on the IPSF
camp.
45. The International Criminal Tribunal for Rwanda (ICTR), in the Akayesu judgement, held
that "ordering implies a superior-subordinate relationship" whereby "the person in a position
of authority uses it to convince (or coerce) another to commit an offence" 51. Soliciting a crime
means, inter alia, to command, encourage, request or incite another person to engage in
specific conduct to commit it52. To induce means to influence another person to commit a
crime53. Inducing is broad enough to cover any conduct which causes or leads another person
to commit a crime, including soliciting that person. In fact, the French version of the Statute
speaks of "sollicite ou encourage", thereby using a form of solicitation to express the English
term induce. In sum, both forms of complicity are applicable to cases in which a person is
influenced by another to commit a crime. Such influence is normally of psychological nature
but may also take the form of physical pressure within the meaning of vis compulsiva.
46. The actus reus of instigating means to prompt another person to commit an offence. 54
Instigating means prompting another to commit an offence, which is actually committed.
The nexus between instigation and perpetration requires proof. It is not necessary to
demonstrate that the crime would not have been perpetrated without the accuseds
involvement; it is sufficient to prove that the instigation was a factor clearly contributing to
the conduct of other persons committing the crime in question.55
51 Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, (Sept. 2, 1998).
52 Henry Campbell Black, Blacks Law Dictionary 1392 (Thomson West 1990).
53 Henry Campbell Black, Blacks Law Dictionary 774 (Thomson West 1990).
54 Prosecutor v. Kordic & Cerkez, IT-95-14/2-T, Judgement of Trial Chamber, (Feb. 26,
2001); Prosecutor v. Limaj et al., Case No. (IT-03-66), Judgment of Trial Chamber, (Nov. 30,
2005); Prosecutor v. Brdanin, Case No. IT-99-36-T, (Sept. 1, 2004).
55 Prosecutor v. Brdanin, Case No. IT-99-36-T, (Sept. 1, 2004).

Written Submissions on behalf of the Defence

47. There is no proof of the fact that General Tortuga instigated the commission of the
alleged war crime. In the case of instigating, proof is required of a causal connection between
the instigation and the fulfilment of the actus reus of the crime. The ordinary meaning of
instigating, namely, bring about the commission of an act by someone, corroborates the
opinion that a causal relationship between the instigation and the physical perpetration of the
crime is an element requiring proof.56
48. The liability of ordering is closely associated with instigating, subject to the additional
requirement that the person ordering the commission of a crime have authority over the
person physically perpetrating the offence, a causal link between the act of ordering and the
physical perpetration of a crime, analogous to that which is required for instigating, also
needs to be demonstrated as part of the actus reus of ordering. There is no proof of the
existence of such a causal link.57
49. Neither the orders for such deception by means of misuse of the distinctive emblems of
Geneva Convention and nor for the ensuing suicide bombings emanated from General
Tortuga. These attacks were neither ordered, nor solicited, nor induced and nor sanctioned
as claimed by the 4th suicide bomber by General Tortuga.
[3.3] THE REPORT

OF, AND THE

CLAIMS

MADE BY THE

4TH SUICIDE BOMBER

ARE

WHOLLY UNRELIABLE
50. It is humbly submitted that there is no reliable evidence or testimony presented which
would lead one to believe that the deception by means of misuse of the distinctive emblems
of Geneva Convention and ensuing suicide bombings were carried out on the orders of
General Tortuga.
51. First, what are being claimed as the last words of the 4 th suicide bomber were allegedly
spoken in the presence of IPSF soldiers and Colonel Peterson. They, being IPSF soldiers,
cannot be wholly relied upon as witnesses for what the last words of the suicide bomber
were.
Second, even if it were to believed that what the IPSF soldiers and Colonel Peterson claim
were indeed the last words of the 4 th suicide bomber that does not prove that he was in fact
56 Supra note 3.
57 Supra note 34.

Written Submissions on behalf of the Defence

speaking the truth. It can be reasonably argued that the suicide bomber had the intention of
dealing another forceful blow to the already strained ties between the IPSF and the Saxonian
Defence Forces and further tarnishing the image of the Saxonian Government in the world.
ISSUE IV: WHETHER THE CHARGE AGAINST THE ACCUSED FOR COMMITTING THE CRIME
AGAINST

HUMANITY OF RAPE WITH RESPECT TO THE INCIDENTS TAKING PLACE AGAINST

CIVILIANS ON JUNE

2013 ON THE BASIS OF COMMAND RESPONSIBILITY CAN BE CONFIRMED?

[4.1] ALLEGED ACTS OF RAPE ARE NOT A CRIME AGAINST HUMANITY

52. Rape as a crime against Humanity is addressed in the Article 7(1)(g) of the Rome statute.
The elements as elaborated by the Article 7(1)(g)-1 of the Elements of Crimes. Elements of
crime have objective and subjective criteria for Rape as a crime against humanity. The
objective criterion is that the perpetrator must invade the body of the victim under coercion or
threat of force. Article 30 of the Statute governs the subjective element of the crime against
humanity of rape requiring the perpetrator's intent to invade another person's body "with a
sexual organ, or the anal or genital opening of the victim with any object or any other part of
the body" by force or threat of force or coercion. 58 To qualify as a crime against humanity,
rape as envisaged in Article 7(1)(g) will have to be committed as part of a widespread or
systematic attack directed against a civilian population, with knowledge of the attack.59
[4.2] THE CONDUCT

OF

RAPE

WAS NOT

COMMITTED

AS

PART

OF A

WIDESPREAD

OR

SYSTEMATIC ATTACK AGAINST A CIVILIAN POPULATION

53. It is important for any crime against humanity to have certain features such as, it must be
directed against a civilian population and that the attack must be of a widespread or
systematic nature. Any civilian population" has been previously interpreted to mean "groups
distinguishable by nationality, ethnicity or other distinguishing features" 60 The term
"civilians" or "civilian population" is not defined in the Statute. However, according to the
well-established principle of international humanitarian law, "the civilian population
58 Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Decision on Conformation of
Charges, (Sept. 30, 2008).
59 Rome Statute, 2187 U.N.T.S. 90 (1998), art. 7(1).
60 Prosecutor v. Uhuru Kenyatta, Case No. ICC-01/09-02/11, Decision on Confirmation of
Charges pursuant to Charges under Article 67(1)(a) and (b) of the Statute, (Jan. 23, 2012).

Written Submissions on behalf of the Defence

comprises all persons who are civilians as opposed to members of armed forces and other
legitimate combatants".61 Civilian population is given protection from military actions till the
time it does not directly take part in the hostilities. 62 Loss of protection against attack is clear
and uncontested- when a civilian uses weapons or other means to commit acts of violence
against human or material enemy forces. 63 The protestors and SLA shared common
objectives- To uproot the existing regime and to elect another government. They were
initially sympathetic to the cause of SLA and not to the use of violence. 64 They became
disentitled to the protection given to civilians under the Geneva Convention when they used
violence in their protest against the SDF forces and thus, technically, the victims were not
civilians.
54. The terms "widespread" or "systematic" are not specifically defined in the Statute. 65
However, "widespread" connotes the large-scale nature of the attack, which should be
massive, frequent, carried out collectively with considerable seriousness and directed against
a multiplicity of victims.66 It entails an attack carried out over a large geographical area or an
attack in a small geographical area directed against a large number of civilians.67 There is a
61 Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision pursuant
to Article 67(7)(a) and (b) of the Statute, (Jun. 15, 2009).
62 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 3 (1978), art. 13(3).
63

ICRC,

Rule

6.

Civilians

Loss

of

Protection

from

Attack,

https://ihl-

databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule6#Fn_44_14.
64 Moot Proposition 7.
65 D. Frank, The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence 87
(2001).

66 The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Decision on confirmation of charges, (Sep.
26, 2008), https://www.icc-cpi.int/iccdocs/doc/doc571253.pdf; Prosecutor v. Jean Paul Akayesu, Case No.
ICTR-96-4-T, (Sept. 2, 1998).

67 Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision pursuant

to Article 67(7)(a) and (b) of the Statute, (Jun. 15, 2009).

Written Submissions on behalf of the Defence

lack of a widespread or systematic attack against a large number of civilians. SDF was only
deployed in Zolta to combat SLA and not to repress civilians that is also the reason why
martial law was also deployed.68 Additionally, when the raid/search operation was conducted,
the civilians hiding in NTI had lost their protection as they took part in the violent opposition
against SDF forces. Thus, there was no widespread attack on civilians.
55. Finally, in order to constitute a crime against humanity, article 7(1) of the Elements of
Crimes requires that the acts were committed with "knowledge of the attack" such that "the
perpetrator knew that the conduct was part of or intended the conduct to be part of a
widespread or systematic attack against a civilian population." It may be noted that the ad hoc
tribunals have understood this phrase to mean that the perpetrator knew that there was an
attack on a civilian population, and that his or her acts were a part of that attack.69
56. Given the fact that there was no widespread attack against the civilians, the SDF soldiers
who allegedly raped those women could not have known that they were doing so under a
widespread attack. This falls short of the requirement of knowledge of the perpetrators.
57. Also, the requirement that there must be a nexus between the attack and the attack is also
not fulfilled. To determine this nexus, the chamber makes an objective assessment of the
characteristics, aims, nature, consequences of the act committed. Thus, isolated acts that fall
out of the context of the attack are excluded from this element. 70 SDF was in Zolta to combat
SLA terrorists who had resorted to violent means to oppose the regime. They did not wish to
repress the civilian population. The objectives of General were clear- to combat terrorists and
not harm women.71 Thus, since there is no widespread attack was there, the acts of some SDF
soldiers cannot be in nexus with the same.

68 Moot Proposition 7.
69 See Prosecutor v. Kordic & Cerkez, IT-95-14/2-T, Judgement of Trial Chamber, (Feb. 26, 2001); Prosecutor
v. Blaskic, Case No. (IT-95-14), Judgment, (Jul. 29, 2004), www.icty.org/x/cases/blaskic/acjug/en/blaaj040729e.pdf.

70 Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Judgment in pursuance of Article 74 of the
statute, (Mar. 7, 2014).

71 Moot Proposition 11.

Written Submissions on behalf of the Defence

[4.3] GENERAL TORTUGA BEARS NO RESPONSIBILITY

TO COMMAND

FOR THE

CRIMES

IN

REFERENCE

RESPONSIBILITY

58. According to a.28(a)72, the essentials of Command Responsibility are summarized by the
ICC in Bemba Decision as
Commission of an underlying offence within jurisdiction of the court;

superior - subordinate status and control between perpetrator and accused forces;
causation of acts of omission/failure of commander to perform duties leading to
crime; and
mens rea.73

As noted in the above arguments, the SDF forces operating in North Zolta did not commit the
alleged offence of crime against humanity, of Rape.
59. [4.3.1] SUPERIOR SUBORDINATE STATUS AND CONTROL
General Tortuga, as the commander of SDF since 1980, had a superior subordinate
relationship vis--vis SDF forces operating in North Zolta, and the general exercised effective
control, which is understood by the ICC in Bemba decision as the material ability to prevent
or repress the commission of the crimes or submit the matter to the competent authorities. 74
Clearly, there existed a superior subordinate relationship between General Tortuga and SDF
forces operating in North Zolta.
60. Inferring from the ICC in Bemba Decision, regular forces of the government such as
armed police units, are different from irregular forces such as paramilitary groups, or

72 Rome Statute, 2187 U.N.T.S. 90 (1998), art. 28(a).

73 The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision
Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against

Jean-Pierre

Bemba

Gombo,

(Jun.

15,

2009),

https://www.icc-

cpi.int/iccdocs/doc/doc699541.pdf.
74 The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision
Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against

Jean-Pierre

Bemba

Gombo,

(Jun.

15,

2009),

cpi.int/iccdocs/doc/doc699541.pdf.

Written Submissions on behalf of the Defence

https://www.icc-

organized militia, which may have a military like structure. 75 But as the commander of SDF,
which is differentiated from the regular forces of the government as being a paramilitary
group with military structure General Tortuga had no effective control over the regular forces
and their institutions, which were administered by the governments Ministry of Security.
Following from the decision in Bemba, it cannot be said that a superior failed to exercise
control properly, without showing that he had effective control over his forces. Thus,
General Tortuga exercised control properly over the SDF forces he had control over, but had
no effective control over pro-government militants and the facilities and forces administered
by the Ministry of Security.
61. General Taxon Tortuga did not hold any Ministry under the Government of Saxonia,
leaving with him effective authority and control of the governments armed forces and
detention institutions. In SLAs first offensive, militants attacked the police and security
forces to take control of a local administrative council in South Zolta. Clearly, only once that
the regular forces of the government such as armed police units failed, the SDF was called in
for a planned offensive, thus clearly differentiating direct government forces and its
institutions, and the SDF, which was operating in Zolta only pursuant to Martial Law, unlike
regular police and their institutions, like the detention center.
[4.3.2] NO OMISSION OF DUTY VIS--VIS MENS REA
62. Flowing from the superior-subordinate relationship of General Tortuga and thus control
over the accused SDF forces, the duty to take measures necessary and reasonable, in power,
to prevent, repress and report such crimes that are committed by subordinate forces. 76 On
their first deployment on 13th June, Menderlees forces were accused of sexual violence in the
NTI building. General Tortuga, as the head of SDF throughout Saxonia, directly instructed
and took reports from the tactical commander of the forces, Col. Menderlee, and upon
gaining such knowledge, immediately, clearly instructed Col. Menderlee to restrain use of
violence against women after the first incident itself, after which SDF forces deployed in
North Zolta committed no acts of violence. With reference to his construtive mens rea
75 Id.
76 The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision
Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against

Jean-Pierre

Bemba

Gombo,

(Jun.

15,

2009),

cpi.int/iccdocs/doc/doc699541.pdf.

Written Submissions on behalf of the Defence

https://www.icc-

regarding the atrocities committed on civilians by forces operating in the area, the reports of
activist NGOs such as Human Rights Frontier may not be considered credible, as followed
by the PTC in Gbago,77 while relaible sources reported on news channels that progovernment militant soldiers are also committing acts of violence, also of sexual nature, on
residents around that area. Thus, as soon as it was in General Tortugas knowledge, he
performed his duty, as the Commander and no future crimes were committed.
63. [4.3.3] CAUSATION
As per Bemba, that there must be causality between a superiors dereliction of duty and the
alleged crime78 and recommends a but-for test to examine causality.79 The incidents of sexual
violence on residents were, as reported by BBC and Al Jazeera, carried out by soldiers of progovernment militia, which are misreported by activist NGOs as crimes by SDF soldiers due
to ongoing official SDF operations in the vicinity. Also, entrusted with the responsibility of
eliminating SLA terrorism from Saxonia, the SDF held no control over investigation and
prosecution of the government in the detention centres operated by the ministry of security, as
General Tortuga was related to no such office, and held no authority over their actions, or
institutions. Thus, applying a but-for test to assess causation, General Tortuga fulfilled his
duties of a superior successfully, and prevented commission of future crimes of that nature by
the SDF. Although the General did not fail, incidents of sexual violence against demonstrators
at the Ministry of Security detention center and against residents by pro-government militant
forces still happened, which were outside the Generals control, defying a but-for causality
test for General Tortugas command responsibility.

77 Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/11, Decision on Confirmation of

Charges, (Jun. 12, 2014).
78 Id at 473.
79 Id.

Written Submissions on behalf of the Defence

PRAYER

Wherefore, it is prayed, in light of the issues raised, arguments advanced, and authorities
cited, that his Honble Court may be pleased to declare that:
a. The charge against the accused for committing the War Crime contained within
Article 8(2)(e)(iii) with the criminal responsibility being of acting through another person
cannot be confirmed for the attack against IPSF compound on 15th September 2013;
b. The charge against the accused for committing War Crime of killing or wounding
treacherously individuals belonging to hostile nation or armed force with respect to the
attack dated 20 October cannot be confirmed;
c. The charge against the accused for War Crime contained under Article 8(2)(b)(vii)
can be confirmed for the attack against IPSF outpost 25 October 2013, on the basis of
criminal responsibility under Article 25 (3)(b) cannot be confirmed;
d. The charge against the accused the crime against humanity of rape under Article
7(1)(g) of the Rome Statute with the criminal responsibility being of command responsibility
in reference to Article 28(a) cannot be confirmed;
e. The prosecution has not tendered sufficient evidence to establish the existence of
substantial grounds to believe that the accused has committed the crimes that he has been
charged for, confirm the charges and subsequently commit the accused for trial;
and Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience.
For this Act of Kindness, the Prosecutor Shall Duty Bound Forever Pray.

Sd/.
(Counsel for the Defence)

Written Submissions on behalf of the Defence