Defendant Count II (Kevin)

Introduction
Good morning, Your Excellences. May it please the Court, my name is Mohammed
Kevin Azzari, and I am the Agent for the Applicant, the International Criminal Court
Defence. My Co-Agent is Gevin Timotius and my researcher is Reynardi Sutanto. I
will be addressing the second two issues concerning civilian attacks. Before I begin,
Mr/Mrs. President, would you like a brief review of the material facts?
(If no, then turn to next page)
1. In 1948, the dissolution of the Wakana Soviet Union resulted in the
independence of Genosha and Sokovia. Both states enjoy strong economic,
cultural, and security ties between them.
2. Genosha is a multicultural state with ethnic Akkaba as the majority,
comprising 47% of the population. The Akkabans are primarily
represented by the right-wing party who values tradition, while the rest of
the minority, lead by the people of Cali-Ma, were more left leaning with
strong desires for liberalism and equality.
3. In June 2013, Chase Stein, a Cali-man, won the presidential election of
Genosha. The rise of a Cali-man to presidency outraged the right-wing
supporters.
4. In August, En Sabah Nur made an oration to the extreme supporters of the
right-wing party, saying that the election has been rigged and they will
resort to any means necessary to protect the long-standing Akkaban
beliefs. On the next day, an armed attack by the supporters occured near
the capital of Genosha, Mavis.
5. En Sabah Nurs troops first attack was well-handled by the Genosha
Armed Forces (GAF). However, more intense attacks were carried out,
prompting the government of Genosha to seek Sokovias help and
denounce the attacks as acts of terrorism that threaten security.
6. By the end of 2013, Sokovia sent its own troops to all GAFs outposts in
Genosha. Most of the next military operations to reclaim rebel-held
territories were carried by both Sokovian and Genoshan troops, but some
were solely lead by Sokovia. However, the rebels still managed to defeat
the joint army.

7. In a leaked online video, dated 8 March 2014, En Sabah Nur is shown to

lead a private meeting to plan an attack against the GAF. En Sabah Nur
said to his fighters to stay vigilant and pro-active in the fight to protect
Akkaban cultural traditions.
8. (Eh btw punya Kevin gk usah ada ini ya sebenarnya, sampe sini dulu deh)

First Issue
Thank you, Your Excellency. The first issue before the court is that whether En Sabah
Nur held superior responsibility for directing attacks against civilians.
The answer is no for one reason.
1. En Sabah Nur did not have a full and clear information which indicated his
subordinates plan to commit the plan
En Sabah Nur did not hold superior responsibility for the attacks
Article 28(b)(i) of the ICC Statute:
A superior shall be criminally responsible for crimes within the jurisdiction of
the Court committed by subordinates under his or her effective authority and
control, as a result of his or her failure to exercise control properly over such
subordinates, where:
(i) The superior either knew, or consciously disregarded information which
clearly indicated, that the subordinates were committing or about to commit
such crimes;
Bagilishema Case, (Trial Chamber), June 7, 2001, paragraph 38, second
essential elements of command responsibility is:
the knowledge, or constructive knowledge, of the accused that the crime was
about to be, was being, or had been committed the knowledge, or constructive
knowledge, of the accused that the crime was about to be, was being, or had
been committed.
In this case your excellences, En Sabah Nur has not breach both the statute and the
rule by the Trial Chamber of a previous case with the same issue, the Bagilishema
case, because even if there was a superior-subordinate relationship between En Sabah
Nur and Kurt Wagner, it does not follow that En Sabah Nur held superior
responsibility. En Sabah Nur had no knowledge which clearly indicated that his
subordinates were about to commit such crimes. En Sabah Nur was informed by
Kurt Wagner about a proposal to launch cyber attacks against GAF military database

(Problem Paragraph 15). This, however, does not mean that En Sabah Nur knew that
the plan would be to put down a jet fighter mid-air so that it will crash at random
locations, including civilian areas.
There are a lot of definitions regarding what constitute a cyber attack (2012
Hathaway, Oona A. and Crootof, Rebecca. Yale Law School). Cyber attack is not a
single action with clear borders. There are a lot of kinds of Cyber attack. It is not
possible for a person, like En Sabah Nur, to directly come into conclusion that his
subordinate, Kurt Wagner, is proposing a cyber attack in the form of hacking jet
fighters with high probability of falling into nearby civilian areas. Moreover, Kurt
Wagner only informed En Sabah Nur that his cyber attack was to obtain
Genoshas critical infrastructures. Even though En Sabah ignored, this does not
mean that he disregarded information. The information that he knew were not an
information which clearly indicated that the subordinates were committing or about
to commit such crime. En Sabah Nur only knew that the proposal was to gain
Genoshas critical infrastructure through cyber attack. Because the point (i) is not
fulfilled, the charge cannot be applied.
Essentialy, the varying definitions of cyber attack, added by information about
the impending cyber attack that is different from what actually happened, make
En Sabah Nur free from superior responsibility regarding the actions of Kurt
Wagner.

Second Issue
Your Excellencies, the second issue before the court is that whether En Sabah Nur is
liable for directing attacks against the civilian population under Article 8(2)(e)(i) of
the ICC Statute, and whether the elements of the crime is fulfilled. The answer to the
issue above is no, some elements of the crime, namely the first and third elements,
are not fulfilled and thus En Sabah Nur is not liable for directing attacks against the
civilian population.
First Element

Your Excellencies, if I may, I would first like to state that according to the ICC Rome
Statute Elements of Crime Article 8 (2) (e) (i), the first element is: The perpetrator
directed an attack.
As stated before, En Sabah Nur did not assume superior responsibility, because the
accusation does not meet the first point of article 28 (b) of the ICC Statute. Thus, it is
logical to conclude that because of this, the actions commited by Kurt Wagner could
not be charged for him. He did not mean to direct an attack against civilian areas. It
was Kurt Wagner who directed the attack.
Thus, the first element is not fullfiled.
Third Element
According to the ICC Rome Statute Elements of Crime Article 8 (2) (e) (i), the third
element is: The perpetrator intended the civilian population as such or individual
civilians not taking direct part in hostilities to be the object of the attack.
In accordance with Article 30 of the ICC Statute, intent to commit a crime is
described by:
a. In relation to conduct, that person means to engage the conduct;
b. In relation to a consequence, that person means to cause that consequence or is
aware that it will occur in the ordinary course of events.
Regarding the first point, En Sabah Nur did not mean for any of the attack to happen,
for he kept silent towards Kurt Wagners plan.
On the second point, En Sabah Nur was not aware that his silence regarding Kurt
Wagners plan would lead to the deaths of hundreds of civilians. As stated before, he
held no superior responsibility for Kurt Wagners crime, because he did not know
about his subordinates true plan. He was only told that a cyber attack is needed to
obtain Genoshas critical infrastructure. It is not in the ordinary course of events
that a plan to obtain enemys critical infrastructure through cyber attack would
mean to put down a jet fighter during mid-flight that can cost a lot of civilian
lives.
Thus, the third element is fulfilled.

Conclusion
For all of the foregoing reasons, En Sabah Nur did not hold superior responsibility in
directing attacks against the civilians as (1) he did not have the information that
clearly stated his subordinates plan to commit a crime.
En Sabah Nur is also not liable for the war crime of intentionally directing attacks
against the civilian population as such or against individual civilians not taking direct
part in hostilities under article 8(2)(e)(i) of the ICC Statute, for acts committed in
Mavis from (insert the dates) as all of the elements are fulfilled.
Thank you, your Excellencies.