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3Defense

THE PROSECUTOR

v.

GENERAL GERARD VANDE

October 2017

TABLE OF CONTENTS

INDEX OF AUTHORITIES

4

STATEMENT OF FACTS

6

SUMMARY OF THE PLEADING

7

PLEADINGS

8

1. THERE ARE NO SUBSTANTIAL GROUNDS TO BELIEVE THAT VANDE IS

LIABLE ON THE BASIS OF INDIVIDUAL RESPONSIBILITY FOR ORDERING

ACTS IN VIOLATION OF ARTICLE 8(e)(i) OF THE ROME STATUTE

8

A. The required elements of the crime are not satisfied

8

i. There was no intention to attack civilians

8

ii. The act of self-defense conform to international humanitarian law

9

B. Vande is not responsible under Article 25(3)(b)

10

i.

Vande did not possess the necessary mens rea

10

2. THERE ARE NO SUBSTANTIAL GROUNDS TO BELIEVE THAT VANDE IS

LIABLE

ON

THE

BASIS

OF

COMMAND

RESPONSIBILITY

FOR

ACTS

IN

VIOLATION OF ARTICLE 8(e)(vi) OF THE ROME STATUTE

 

11

A. The charge does not constitute a crime

 

11

i. The Rome Statute calls for strict interpretation, and the doubt must be interpreted

 

pursuant to the principle of in dubio pro reo

11

B. Alternatively, the required elements of the crime are not satisfied

12

i.

The acts did not happen as a result of a non-international armed conflict

12

C. Vande is not responsible under Article 28(a)

12

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i.

Vande did not know that the criminal act was about to be committed or had been

3.

13

THERE ARE NO SUBSTANTIAL GROUNDS TO BELIEVE THAT VANDE IS

LIABLE

AS

CO-PERPETRATOR

FOR

ACTS

IN

VIOLATION

OF

ARTICLE

8(2)(e)(viii) OF THE ROME STATUTE

13

A. The required elements of the crime are not satisfied

13

i. The actions referred to in the charge were done with imperative military

14

B. Vande is not responsible under Article 25(3)(a)

15

i.

Vande did not contribute to the attack

15

PRAYER FOR RELIEF

16

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INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Additional Protocol I to the Geneva Conventions (1949), relating to the

8, 9, 12, 13, 27

Protection of Victims of International Armed Conflicts,

8

June 1977

Additional Protocol II to the Geneva Conventions (1949), relating to the

12

Protection of Victims of Non-International Armed Conflicts,

8

June 1977

Rome Statute of the International Criminal Court, 1 July 2002,

8

A/CONF.183/9

INTERNATIONAL DOCUMENT

Elements of Crimes, International Criminal Court, ICC-PIDS-LT-03-002

8, 13

 

(2011)

JUDICIAL DECISIONS

 

ICTY, Appeals Chamber, Prosecutor v. Babic, IT-03-71-A

15

ICTY, Appeals Chamber, Prosecutor v. Kordic and Cerkez, IT-95-14/2-A

13

ICTY, Appeals Chamber, Prosecutor v. Krnojelac, IT-T97-25-A

15

ICTY, Appeals Chamber, Prosecutor v. Limaj, IT-03-66-A

11

ICTY, Appeals Chamber, Prosecutor v. Tadic, IT-94-1

15

ICTY, Appeals Chamber, Prosecutor v. Vasiljevic, IT-98-32-A

15

ICTY, Trial Chamber, Prosecutor v. Blagojevic and Jokic

15

ICTY, Trial Chamber, Prosecutor v. Blaskic, IT-95-14

10

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ICTY, Trial Chamber, Prosecutor v. Brdjanin, IT-99-36-T

10, 14, 15

ICTY, Trial Chamber, Prosecutor v. Halilovic, IT-01-48-T

13

ICTY, Trial Chamber, Prosecutor v. Kupreskic et al., IT-95-16

9

ICTY, Trial Chamber, Prosecutor v. Kvocka, IT-98-30/1

15

ICTY, Trial Chamber, Prosecutor v. Limaj et al., IT-03-66-T

10

ICTY, Trial Chamber, Prosecutor v. Milutinovic, ICTY-99-37-AR72

11

ICTY, Trial Chamber, Prosecutor v. Simic, Tadic and Zaric, IT-95-9

15

BOOK

DÖRMANN, ELEMENTS OF WAR CRIMES UNDER THE ROME

8

STATUTE OF THE INTERNATIONAL CRIMINAL

COURT: SOURCES AND COMMENTARY FROM THE ICRC

(2004)

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STATEMENT OF FACTS

After the Second World War, the Federal Republic of Toukanov and Hakova, a highly populated nation and parliamentary democracy, whose inhabitants were the Ombrians and Boubhans was established. Daniel Arlet, a follower of the Boubhan religion was elected into office in 2009. Because of his vocal support of the Boubhan religion, the parliament of Hakova proclaimed independence and established the Republic of Hakova. Tensions started to rise when thousands of Ombrians in the province of Kouka took to the streets, asserting independence from the present government. The Free Koukan Army (FKA) was then established and gained control over half of Kouka’s territory. This circumstance escalated into a conflict between the Toukanov Armed Forces (TAF) and the Free Koukan Army (FKA). Because of the rising tension President Arlet in an emergency meeting instructed General Gerard Vande to regain control of the whole Kouka province, prevent further violence end the terrorism and rebellion of the Ombrian terrorists. With the intention of aiding civilians in the conflict area, he instructed soldiers to protect by all means a humanitarian convoy which aims to deliver food, water and medical supplies. However, because of a sudden attack on the convoy, the TAF task force had to attack in self-defense. Meanwhile, Operation Blanc commenced and had been successful in regaining multiple municipalities in Kouka which had been previously been controlled by the FKA. The purpose of this operation is to end the violence and hostilities and to start the peace process in province. The displacement was designed to weed out and cut support from the predominantly Ombri population in the province. Parts of these civilians are those publicly displaying extremist activities which hampers military operations, and threaten the safety and security of civilians regardless of their religion. On 28 November 2015, stories broke out from Washington Post in relation with mass surveillance programs which made the public furious and led to the impeachment of President Arlet on 14 December 2015. After the appointment of President Caron, the Toukanovan government and the Free Koukan Army signed a cease-fire agreement, and the interim government referred the situation to the International Criminal Court. Hence, the present case.

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SUMMARY OF PLEADINGS

General Gerard Vande in pursuit of securing an end to the armed conflicts in the Kouka Province in the Boubhan State of Toukanov, and prevent the breakup of the country and more bloodshed and destruction, committed no acts constituting war crimes prohibited under the Rome Statute of the International Criminal Court (Rome Statute) in the military’s defensive attack against a surprise attack, in the isolated cases of rape within the military, and in the displacement of civilians because of their extremist actions and activities, between March of 2014 to January 2016.

First, no intentional attack was made directed against civilians, as the actions taken by TAF on November 10, 2015 was done necessarily as self-defense to protect the humanitarian convoy and guarantee the delivery of sufficient food, water and medical supplies for the Boubhan soldiers and civilians in the conflict zone. There was no intention for the convoy to initiate an attack directed to civilians but rather safe passage. Moreover, the character of the task force as being heavily armored and prepared is indicative of its defensive posture in the face of consistent terror attacks on the trucks.

Second, no war crime of rape was committed. The incidents of a rape within TAF involving soldiers, point to was rape as ordinary crimes, and do fall into the meaning of the war crime of rape. In interpreting the provisions of war crime of rape, the charge does not constitute the crime under the Rome Statute.

Lastly, the displacement of Ombrian civilians involved imperative military reasons, particularly to prevent the extremist acts and activities, by cutting support from the local community, independent of any alleged religious prejudice. And possible measures were taken and the civilian population received under satisfactory conditions required by international humanitarian law.

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PLEADINGS

1. THERE ARE NO SUBSTANTIAL GROUNDS TO BELIEVE THAT VANDE IS

LIABLE ON THE BASIS OF INDIVIDUAL RESPONSIBILITY FOR ORDERING

ACTS IN VIOLATION OF ARTICLE 8(e)(i) OF THE ROME STATUTE.

The crime prohibited by Article 8(e)(i) of the Rome Statute of the International Criminal

Court (Rome Statute) requires five elements, two of which are not satisfied in the charge against

General Gerard Vande. Further, the actions done in self-defense were made in conformity with

international law. Vande is also not responsible under Article 25(3)(b) of the Rome Statue, as he

did not possess the necessary mens rea.

A. The required elements of the crime are not satisfied.

The crime of attacking protected persons prohibited by Article 8(e)(i) 1 requires five

elements 2 , one of which is unsatisfied. In truth, the actions done were made in self-defense

complaint with the requirements set by international law.

i. There was no intention to attack civilians.

The language of the prohibition against attacks on civilians reflect the principle that the

crime involves an intentional attack on civilians. 3 This pertains to an element 4 of this crime which

is the intent of the accused to make the civilian population or civilians the object of the attack. 5

1 Rome Statute of the International Criminal Court, 1 July 2002, A/CONF.183/9.

2 Elements of Crimes, International Criminal Court, ICC-PIDS-LT-03-002 (2011).

3 DÖRMANN, ELEMENTS OF WAR CRIMES UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT FROM THE ICRC (2004): at 130.

4 Supra note 2.

5 Article 51(2) and Art. 85(3)(a) of Additional Protocol I to the Geneva Conventions of 1949, 1999 [AP I].

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According to the facts, the purpose of the convoy was humanitarian in nature to reach the civilians trapped in the cross fire and provide them necessary medicine, food and supplies. In light of recurring attacks of both civilians and combatants on Lannister trucks doing the critical deliveries, TAF had to improve the security of the transports. Thus, in the case of the November 10 convoy, the TAF task force accompanying the trucks were well prepared and armored exhibiting a defensive posture. When the convoy was fired upon by combatants hiding in the violent crowd, killing a soldier and a truck driver, the task force retreated to safety while firing back for self-defense. All of these point to a mindset indicative of no intention to directly attack civilians. 6

ii. The act of self-defense conform to international humanitarian law.

Attacks even in self-defense and collateral damage as an effect, are not unlawful if the attacks follow the rule of proportionality, 7 are not indiscriminate in nature, 8 and are attended with precaution. 9 In the actions done by TAF task force in protecting the humanitarian convoy, the act of self-defense were proportional, discriminate and done with precaution.

The facts show that the areas where the humanitarian convoy would pass were dangerous, as the Lannister trucks were repeatedly under attack. In the face of this danger, and with the ultimate goal of providing critical resources to civilians in the conflict zone, the weapon system and strategy employed by TAF was only necessary. Given this context, the response of the task force was only proportional to the danger posed by the combatants, and the importance of the convoy which was humanitarian and civilian in character. The task force even employed warning shots to allow maximum precaution. As the attack against the convoy ensued, the task force made

6 Compromis, ¶ 14, 15, 16.

7 Article 51(5), AP I.

8 Article 51(4), AP I.

9 See ICTY, Trial Chamber, Prosecutor v. Kupreskic, IT-95-16, para. 524.

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its best attempt to distinguish the combatants and the civilians, keeping in mind the protection of

the civilian truck drivers under its protection. 10

B. Vande is not responsible under Article 25(3)(b).

Vande is not responsible on the basis of individual criminal responsibility for ordering the

attack under the Rome Statute, as he did not possess intent and knowledge of the attack.

i. Vande did not possess the necessary mens rea.

In the Blaskic case, a person who “orders an act or omission with the awareness of the

substantial likelihood that a crime will be committed in the execution of that order, has the requisite

mens Rea for establishing liability. Ordering with such awareness has to be regarded as accepting

the crime.” 11

The actions made by Vande prior to the defensive attack, was to order the task force to

secure and protect the humanitarian convoy with all necessary means. This solitary and general

statement in itself does not show intent or knowledge that war crimes are to be committed. The

proper context of these remarks is the attempt of the TFA to allow the safe delivery of critical

humanitarian supplies to the civilians who need them most in the strife-torn Kouka. 12

10 Compromis, ¶ 14, 15, 16.

11 ICTY, Appeals Chamber, Prosecutor v. Blaskic, IT-95-14-A, paras. 41-42; ICTY Trial Chamber, Prosecutor v. Limaj, et al., IT-03-66-T, para. 515; ICTY, Trial Chamber, Prosecutor v. Brdjanin, IT-99-36-T, para. 270.

12 Compromis, ¶ 14, 15, 16.

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2.

THERE ARE NO SUBSTANTIAL GROUNDS TO BELIEVE THAT VANDE IS LIABLE ON THE BASIS OF COMMAND RESPONSIBILITY FOR ACTS IN VIOLATION OF ARTICLE 8(e)(vi) OF THE ROME STATUTE.

The crime charged is not within the definition of Article 8(e)(vi) of the Rome Statute, and a strict interpretation is mandatory pursuant to the principle of in dubio pro reo. Alternatively, the war crime of rape requires four elements, one of which is not satisfied in the charge against Vande. Vande is also not responsible under Article 28(a) of the Rome Statute, as he did not possess the necessary knowledge or intent that the crime would be done.

A. The charge does not constitute a crime.

The allegations against Vande do not fall within the definition of the crime charged hence there is no liability.

i. The Rome Statute calls for strict interpretation, and the doubt must be interpreted pursuant to the principle of in dubio pro reo.

Article 22(2) of the Rome Statute provide that the “definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favor of the person being investigated, prosecuted or convicted.” 13

In Milutinovic, expansive interpretation of the statute to the point of recognizing new crimes must not be done. 14 Essentially, the principle of in dubio pro reo, corollary to the presumption of innocence, must be upheld in cases of doubt. 15

13 Supra note 1.

14 ICTY, Trial Chamber, Prosecutor v. Milutinovic, ICTY-99-37-AR72, paras. 37-38.

15 ICTY, Appeals Chamber, Prosecutor v. Limaj, IT-03-66-A, para. 21.

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The facts refer to cases of rape and sexual predation within the TAF. While rape is a crime that must be dealt with, not all instances of rape should be considered a war crime. Particularly, the war crime of rape does not cover intramilitary cases. 16

B. Alternatively, the required elements of the crime are not satisfied.

The war crime of rape prohibited by Article 8(e)(vi) 17 requires four elements, one of which is unsatisfied.

i. The acts did not happen as a result of a non-international armed conflict.

In the case, rape happened among the soldiers of TAF. The facts point to a situation that notably involves no individual outside the military organization as a rape victim. While the rape happened while a particular conflict was also occurring, the peculiar circumstances surrounding the rape cases logically leads to a conclusion that these cases would have happened regardless of the fact of the conflict, there being no intimate relationship between the perpetuation of rape and the motivations of the armed conflict. 18

C. Vande is not responsible under Article 28(a).

Vande is not responsible on the basis of command responsibility for the displacement of civilians, as he did not possess knowledge that the criminal act was about to be committed or had been committed.

16 Art. 4, Additional Protocol II to the Geneva Conventions of 1949, 1999.

17 Supra note 1.

18 Compromis, ¶ 17, 18.

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i.

Vande did not know that the criminal act was about to be committed or had been committed.

For a person to be liable under Article 25(3)(a), 19 the “superior knew or had reason to know that the criminal act was about to be or had been committed.” 20 This fact of knowledge of the superior must first be established. 21

While the facts show that General Vande refer to these cases of rape, his knowledge of them are as matters of internal affairs. His statements do not point to a knowledge that war crimes are about to be committed or have been committed by those under his command.

3.

THERE ARE NO SUBSTANTIAL GROUNDS TO BELIEVE THAT VANDE IS LIABLE AS CO-PERPETRATOR FOR ACTS IN VIOLATION OF ARTICLE 8(2)(e)(viii) OF THE ROME STATUTE.

The elements of the crime prohibited by Article 8(2)(e)(viii) of the Rome Statute are not satisfied as the transfer of civilians was made for a military imperative. Vande is also not responsible under Article 25(3)(a) as he did not contribute to the attack.

A. The required elements of the crime are not satisfied.

The crime of displacing civilians prohibited by Article 8(2)(e)(viii) 22 requires five elements 23 , one of which is unsatisfied.

19 Supra note 1.

20 ICTY, Appeals Chamber, Prosecutor v. Kordic and Cerkez, IT-95-14/2-A, para. 829.

21 ICTY, Trial Chamber, Prosecutor v. Halilovic, IT-01-48-T, para. 59.

22 Supra note 1.

23 Supra note 2.

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i.

The actions referred to in the charge were done with imperative military reason.

International law allows the displacement of a civilian when it is justified, particularly, when such is an imperative brought about by military necessity. 24

The military necessity that motivates the actions done in connection with Operation Blanc, was contextualized in the continuous terror attacks and aggression by the FKA that has lead them take control of half of Kouka. The problem was exacerbated by the support and indirect intervention of the rouge province of Hakova to the FKA. Additional to this is the fact that Kouka province is predominantly Ombri with its followers composing 80% of the population. This very population is the primary and main source of recruits that make up the FKA, and it can be reasonably be inferred that FKA enjoys massive support from the local population. 25

All of these build the full context of the TFA’s appreciation of the military necessity that required the implementation of Operation Blanc. Without the operation, the FKA would have undoubtedly increased in size and capacity threatening the complete separation of Kouka from the legitimate government.

In particular, the targeting of individual who refused to participate in the religious activities of Boubha had a logical predisposition to being radicalized for the Ombri faith. Radicalized Ombrians are then easier to recruit by the FKA. The system would also disrupt the support that the FKA was receiving from the local communities.

At any rate, the imprisonment in the detention centers were done with care and preparation as evidenced by the facts showing a system and objective criteria in determining the persons to be detained, as well as the fact that these detention centers were newly built. 26

24 ICTY, Trial Chamber, Prosecutor v. Brdjanin, IT-99-36-T, para. 556.

25 Compromis, ¶ 2, 8, 9, 11, 14, 15, 16, 22, 27.

26 Compromis, ¶ 21

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While questions on the propriety of actions revolving around religious policies, there are

essentially political questions that are rooted in the Toukanov’s right to self-determination.

B. Vande is not responsible under Article 25(3)(a).

Vande is not responsible as co-perpetrator under the Rome Statute, as he did not contribute

to the transfer of civilians.

i. Vande did not contribute to the attack.

For a person to be liable under Article 25(3)(a), 27 the person must participate in the

common plan involving the perpetration of the crime. 28 This means that an accused must have

carried out acts that substantially affected the furtherance of the goals of the enterprise, with the

knowledge that his acts or omission facilitate the crimes. 29 Critically, in order to incur criminal

liability, the accused is required to take action in contribution of the implementation of the common

plan. 30

The facts show the extent of participation of Vande, and this do not show nor imply that

he contributed to the actual transfers. As far as the imprisonment of civilians are concerned,

27 Supra note 1.

28 ICTY, Appeals Chamber, Prosecutor v. Krnojelac, IT-T97-25-A, para. 31; ICTY, Trial Chamber, Prosecutor v. Blagojevic and Jokic, February 25, 2004, para. 100; see also ICTY, Appeals Chamber, Prosecutor v. Vasiljevic, IT-98-32-A, para. 100; ICTY, Appeals Chamber, Prosecutor v. Tadic, IT-94-1, para. 227.

29 ICTY, Trial Chamber, Prosecutor v. Kvocka, IT-98-30/1, para. 312.

30 ICTY, Trial Chamber, Prosecutor v. Brdjanin, IT-99-36-T, para. 263; see also ICTY, Appeals Chamber, Prosecutor v. Babic, IT-03-71-A, para. 38; ICTY, Trial Chamber, Prosecutor v. Simic, Tadic and Zaric, IT-95-9, para. 158; ICTY, Trial Chamber, Prosecutor v. Kvocka, et al., IT-98-30/1, para. 289.

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General Vande only order the type of punishment to be meted out. 31 This does not in itself constitute actual participation in the implementation of a common plan.

31 Compromis, ¶ 21.

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PRAYER FOR RELIEF

Based on the rules and evidence stated above, the Defendant respectfully request this Honorable Court to adjudge and declare that there is no sufficient evidence to establish substantial grounds that General Gerard Vande committed the war crimes charged.

RESPECTFULLY SUBMITTED,

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Counsels for the Defense