THE NETHERLANDS

INTERNATIONAL CRIMINAL COURT

THE HAGUE

PROSECUTOR,
Plaintiffs,

-vs- ICC CASE NO. 1234-17

GENERAL GERARD VANDE,

Accused.
x-- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -x

DECISION

Comes now, the decision of International Criminal Court for

the above-stated case, hereby promulgated:

THE PARTIES
1. Plaintiffs, Ombrians of Kouka and low-ranking officer of
Toukanov Armed Forces (TAF), suffered during the Martial
Law in Toukanov and deprived of rights as human beings.

2. Accused, General Gerard Vande, is the Chief of the Defence

Staff, the highest-ranking and senior-most military officer in the
TAF, under Toukanovan law.

STATEMENT OF FACTS
AND THE CASE

1. Two main religions, the Boubha religion and Ombri religion, have
coexisted in Atlanpik, a region facing the Atlanpik sea. The
Boubhans insist that all aspects of the society such as economy,
education, family, health, justice, politics, and others should be
guided by the Boubhan Commandments. Nine million Boubhans
and 4.2 million Ombrians lived in the Federal Republic of
Toukanov and Hakova, which was founded as a single state after
World War II. Mr. Daniel Arlets election to presidency in 2009
created turmoil in Hakova due to the realization of his campaign
promise to amend the federal constitution to declare Boubha as the
Federal Republics official religion. He was part of the radical
Boubha party Boubha United Front. The Boubhan-dominated
federal parliament passed the said amendment following his
 election. In response, the Hakovan parliament declared
independence on April 10, 2009, then established the Republic of
Hakova. Ombrians serving the Federal Army undertook allegiance
to the new Republic and created the Hakovan Defence Army
(HDA). In at most three months, the HDA unstoppably imported
advanced weapons through Hakovas ports in the Atlanpik Sea.

2. President Arlet publicly stated that he condemns the unilateral

declaration of independence by Hakova and refuses to recognize
Hakova as an independent State. Subsequently in August 5, 2010,
the federal parliament passed another amendment that changed the
Federal Republics name to the Boubhan State of Toukanov,
recognizing Hakova as its autonomous region. Federal institutions
including the parliament were then integrated with those of the
former state of Toukanovs. Fundamentally, the federal
government was transformed into a centralized government
controlled by the Boubhans. The Federal Army was reformed as
the Toukanov Armed Forces (TAF). It was led by the Toukanov
Central Command, which had key members in President Arlet as
Commander-in-Chief, Mr. Stan Emdal as Minister of Defence
Staff, and General Gerard Vande as the Chief of the Defence Staff
-- the highest-ranking and senior-most military officer in the TAF,
under Toukanovan law. He advises the two other high officials on
all defence matters and is responsible for the use of force and
command of all military operations by the TAF. On another note,
while the economy of Toukanov shrank due to reduced exports,
that of Hakova continued to grow still through its fully developed
shipping industry.

3. Although by June 2017, 138 out of 176 countries that had

diplomatic relations with the former Federal Republic already
recognize the Republic of Hakova, the latter has not yet been
accepted into the United Nations.The government restructuring
came with harsher religious policies in Toukanov. For instance, in
schools, only orientation courses on the Boubha religion were
offered, and children were permitted to speak only the Toukanov
dialect. Moreover, government cut down on public funding that
sustained Ombrian religious sites. As a result, the Ombrians in
Toukanov, especially those in Kuoka felt marginalized and
oppressed.

4. The Ombrian population in Kuoka province has been demanding

publicly a referendum to decide the future of Kuoka, right from the
time of the independence of Hakova. The people have specifically
been in favor of the idea of accession to the Republic of Hakova.
Preference to such heightened at most in early March 2014 after a
Boubhan policeman shot and killed 15-year-old Ombrian boy who
allegedly attacked him. The district court decided to not subject the
policeman to trial, provoking the tens of thousands of Ombrians in
Kuoka to protest for justice and independence. Without delay,
President Arlet announced a state of emergency in the province
and declared martial law on March 25, 2014. TAF troops were
deployed for Kuoka to control the protests and manage the crowd
 along with the police, subsequently aggravating the violent
situation. Dozens of Ombrians in the place then felt subdued and
began to mobilize against the TAF and police. They did this
through a resistance movement called Free Kuokan Army (FKA),
of which they appointed themselves as majors and colonels.

5. Since April 2014, more and more demonstrations took place in

Kouka in spite of the martial law. Confrontations between the
FKA, the demonstrators and the policemen of Toukanov resulted
in at least 300 casualties of demonstrators, 50 TAF soldiers and
policemen. Every conflict was aired on the international media and
the pressure brought about by the broadcasts prevented the
Toukanov authorities from making more hostile moves. The FKA
then recruited 2,000 men and women who were divided into three
battalions and gathered firearms for their surprise attack on Teria
which happened on June 20, 2014. The battle lasted for three days
with the FKA seizing control of Teria and making it its base. After
two months, the FKA had gained control of half of the Koukan
territory, including Biro. In these areas, the FKA expelled the
Boubhan government officials and set up its own local authorities
and social services.

6. The Hakovan government denied any link between itself and the
FKA but two news agencies stated that the HDA had been
transferring weapons to the FKA through the cross-border corridor
close to Tena since June 23, 2014. Hakova military uniform
symbols were spotted on tanks and trucks by the Boubhans still
residing in FKA-occupied parts of Kouka. Correspondents from
Reuters and AFP that were at the FKA controlled area witnessed
repeated manoeuvres by the HDA at the Hakova-Toukanov bored
including the deployment of hundreds of tanks and thousands of
men towards the border. They also stressed that youngsters from
Kouka travel across the border and were given military training in
Hakova.

7. On August 30, 2014, President Ariel convoked an emergency

meeting of the Toukanovan Central Command when he was
overwhelmed by the turn of events that were happening pretty
damn fast. During the meeting, he instructed General Gerard
Vande to regain control of the whole Kouka province and to crush
the Omrbian terrorists by all means. He then proceeded to declare
in front of the cameras his threats against the FKA terrorists.
General Vande possesses 19% of the shares in Lannister
Enterprises. He had vast connections in the transportation industry.
He was also renowned as a true believer of Boubha and donates
one third of his salary to the National Boubha Centre every year.
General Vande never concealed his abhorrence of the Ombri
religion. He would often state in his blog that the Ombri religion
poses a threat to the Boubhans and that it must be eradicated. The
Lannister Enterprises profits dwindled greatly since June 2014
because every time their trucks arrive in FKA-controlled areas in
Kouka, the local Ombrians would assault the drivers and steak
 their truck and food. As a result, a lot of their employees resigned
and the investors withdrew their funds in the company.

8. On October 15, 2014, the Wall Street Journal interviewed Mr.

Lannister about the problem that their company was facing. He
stated in the interview that they would push through with their
business in spite of the attacks by the Ombrian locals. The TAF
agreed to keep their trucks safe and he has General Vande to thank
for that. On Novermber 10, 2014, a convoy of Lannister
Enterprises trucks set off to Biro with a TAF task force consisting
of two armored vehicles with .50 caliber machine guns and a
platoon of TAF soldiers. Before they departed, the leader of the
task force received a direct order from General Vande instructing
him to protect the convoy with all necessary means. The moment
the convoy entered the FKA-controlled area, they were forced to
stop by roadblocks. More than 200 local Ombrians then
approached the convoy and attempted to rob the trucks as usual.
The TAF soldiers, outnumbered by the Ombrians, fired warning
shots with the intention to disperse the crowd but shots were fired
at the convoy from the middle of the crowd, killing a TAF soldier
and a truck driver. The TAF soldiers and armored vehicles
immediately retaliated and the Ombrians fled the scene. The
convoy then withdrew to the TAF-controlled area and the TAF
operational report revealed that 10 TAF soldiers and three drivers
from Lannister Enterprises were killed. The local media announced
that 110 Ombrian civilians lost their lives while 30 were injured.

9. In January 2015, dozens of lower-ranking officers and hundreds of

soldiers, who were radical Boubhans, mutinied against the higher-
ranking officers of TAF, arguing that the widespread corruption
among the higher-ranking officers seriously undermined the TAFs
capability in carrying out effective military offensives. The leaders
of this revolt pledged their allegiance to General Vande and
demanded that the TAF engage with the HDA directly in order to
respond to Hakovas support of the FKA. The mutiny ended in
March 2015. During General Vandes visit to the military camps
where the insubordinate troops were based, General Vande
promoted several leaders of the mutiny on the spot. Moreover, he
established a special unit within the TAF, the Bouhba Guards,
who report directly to the Toukanovan Central Command and
General Vande himself.

10. Investigative journalists of the Guardian reported that the mutiny

was in effect partly due to the dissatisfaction of the soldiers with
the large-scale sexual abuse within the TAF. The report stated that
since the deployment of the TAF to Kouka in March 2014, the
youngest and physically weakest soldiers in each regiment of the
TAF, both men and women, had been selected and tasked with
logistical services. However, these soldiers were regularly raped by
higher-ranking TAF officers and some senior soldiers returning
from the battle. The report of The Human Rights Watch based on
interviews of the wounded TAF soldiers corresponded to the report
by the Guardian. General Vande was questioned on this matter by
 the Guardian, he stated that his soldiers are all adults and that he is
not responsible for their activities during their free time; in
addition, he said that as a military commander, his work is to
develop strategies to counter the terrorists and to supervise his
troops on the ground.

11. In view of the alleged human rights violation, the UN General

Assembly decided to establish a Commission of Inquiry on the
Situation in June 2015. While the circumstances of food shortage
in Kouka and sexual abuses were yet to be verified, the
Commissions preliminary report recorded disturbing practices of
the TAF since March 2015. The Commission found that one of the
strategies announced by General Vande during his visit to the
military camps in March 2015 was in fact Operation Blanc,
which was led by the Boubha Guards. Consequently, the TAF
regained multiple municipalities in Kouka which have been
previously controlled by the FKA. TAF soldiers asked the
residents individually on their religion. Those who answered as
believers of Boubha were greeted and sent back home; on the other
hand, the Ombrians were forced to take the commitment to convert
to Boubha. Furthermore, within Operation Blanc, General Vande
ordered that anyone who did not attend the classes three times a
day would be imprisoned after the fifth day of missing class. Many
Ombrians had to work long hours and did not have the luxury of
time to attend classes.

12. As a result thereof, by October 2015, more than 80,000 Ombrians

in the TAF-controlled municipalities in Kouka were detained. Only
a small number of Ombrians converted to Boubha. The
Commissions preliminary report further underlined that under
Operation Blanc, the TAF required the registration and
authorization of all religions seeking to practice in public areas.
Unauthorized religious practice in public areas would be subject to
suppression and imprisonment. However, only the Boubha were
registered and authorized to practice. Consequently, thousands of
Ombrians in Kouka were arrested for publicly practicing
extremist religion.

13. General Vande was condemned by the council of the National

University of Toukanov for inciting religious hatred by stating: I
do not hide that I am a devout Boubhan. Our country is faced with
instability and is suffering from poverty. I see only one cause of it,
the Ombri. It is time to eliminate this religion from our country for
good. On November 6, 2015, the UN Security Council passed a
resolution condemning the violations of international humanitarian
law and abuses of human rights by the TAF and the Toukanovan
government, and imposed economic sanctions on Toukanov.

14. On November 28, 2015, an employee of the Toukanov Intelligence

Burea, under the pseudonym Mr. Nessuno, disclosed confidential
documents pertaining to a mass surveillance programme operated
by the TIB. Wherein, the TIB had access to the content of all the
electronic communications of anybody present in Toukanov. Mr.
 Nessuno claims that the Arlet administration intended to use this to
suppress its political opponents. Incidentally, some of these
documents exposed the secondment of mid-level and high-level
Hakovan military officers to FKA ranks since the beginning of
2014. Records showed that these seconded Hakovan officers were
involved in the planning and carrying out of the FKA ground
operations. The Hakovan government denied any involvement of
the HAD in Kouka.

15. On December 28, 2015, Congressman Lucion Caron was

appointed as Interim President by the Parliament, the Toukanovan
government and the FKA signed a cease-fire agreement one month
after, on condition that the situation in Kouka from March 25,
2014 to January 28, 2016 would be referred to International
Criminal Court, which the Toukanovan government formally did
on February 5, 2016.

ISSUES
General Vande was subsequently surrendered to the ICC and was
charged with:

a. Count One- with respect to the incident on November 10,

2014, the attack from the convoy, on the basis of
individual criminal responsibility for ordering, soliciting
or inducing the commission of (Article 25 (3)(b)): 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).

b. Count Two- with respect to the rapes and sexual abuses

within the TAF troops deployed to Kouka province, on
the basis of command responsibility (Artucke 28(a)): the
war crime if rape under Article 8(2)(e)(vi).

c. Count Three- with respect to the treatment of Ombrian

residents in Kouka under Operation Blanc, on the basis
of individual criminal responsibility for committing,
whether as an individual, jointly with another or through
another person (Article 25(3)(a)): the war crime of
ordering the displacement of the civilian population for
reasons related to the conflict, unless the security of the
civilians involved or imperative military reasons so
demand under Article 8(2)(e)(viii).
 DISCUSSION/ARGUMENTS

PROSECUTION
The prosecution argues that the conflict in Toukanov is non-
international in nature. This is due to the fact that a Non-International
Armed Conflict (NIAC) is a type of armed conflict involving two
actors one of which may be classified as a governmental force and the
other as a non-governmental armed groups. In this case, the two
parties involved in the conflict are: the Toukanov Armed Forces
(TAF), the army in Toukanov headed by a supreme military authority
which has the responsibility of commanding all military operations
and; the Free Koukan Army (FKA), a resistance movement organized
by Ombrian veterans.
Furthermore, the prosecution contends that General Gerard
Vande, the Chief of the Defence Staff of the TAF, must be charged
with the war crimes as he is liable in the attack against the civilians
from the convoy which happened on the 10th of November 2014, the
rapes and sexual abuses within the TAF troops and by ordering the
displacement of the civilian population.

I. War Crime of Attacks Against Civilians

General Vande should be charged with the war crime of
attacking the civilian population. Being the Chief of the Defence
Staff, he has the responsibility to command all the operations of the
military. This was exemplified when he commanded that the TAF
soliders should do all necessary means to protect the convoy hence,
ordering the attacks against the Ombrians. As the TAF soldiers were
mere subordinates to General Vande, they are required to follow all
his commands. Under the Principle of Command Responsibility,
superiors are responsible for the crimes committed by their
subordinates. When the TAF soldiers attacked the civilians, they were
merely acting under the order of General Vande. Thus, the crime
committed by the TAF soldiers is the responsibility of General Vande
making him liable in the crime of attacking the civilian population.
Also, under Article 8(2)(e)(i) of the Elements of Crime, one
element of the commission of a crime is that the perpetrator was
aware of factual circumstances that established the existence of an
armed conflict. General Vande is fully aware that there are hostilities
between the FKA-controlled areas and the Lannister Enterprises. He
had already foreseen that an attack can actually happen when they
entered the FKA-controlled areas.
It was also contended that the object of the attack was a civilian
population. This falls under another element of a crime. Civilians are
afforded the protection of the law, unless they take a part in the
conflict. In this case, the Ombrians are considered individual civilians
who did not take part in the hostilities. Their rights as civilians were
violated when they were attacked by the TAF forces. They only
approached the convoy since they were in need of the goods which the
Lannister Enterprises have the obligation to deliver as part of their
duty as a transport company. Given these arguments, General Vande
shold be liable for the crime of the attacks against the civilian
population.
II. War Crime of Rape
In the view of the prosecution, General Vande was rightfully
and legally charged, with respect to rapes and sexual abuses, within
the TAF troops deployed to Kouka province. The basis for these
charges are: Command Responsibility (Article 28 [a]); and War Crime
of Rape (Article 8 [2] [e] [vi]).
Article 8 (2)(e)(vi) states: Committing rape, sexual slavery,
enforced prostitution, forced pregnancy, as defined in article 7,
paragraph 2 (f), enforced sterilization, and any other form of
sexual violence also constituting a serious violation of article 3
common to the four Geneva Conventions;
Article 28 (a) states: (a) A military commander or person
effectively acting as a military commander shall be criminally
responsible for crimes within the jurisdiction of the Court
committed by forces under his or her effective command and
control, or effective authority and control as the case may be, as
a result of his or her failure to exercise control properly over
such forces, where: (i) That military commander or person
either knew or, owing to the circumstances at the time, should
have known that the forces were committing or about to
commit such crimes; and (ii) That military commander or
person failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission
or to submit the matter to the competent authorities for
investigation and prosecution.
When dozens of low-ranking officers and hundreds of soldiers,
who were radical Boubhans, mutinied against the higher-ranking
officials of TAF, many of them pledged allegiance with General
Vande, and the latter promoted several leaders of said mutiny and
announced his decision to establish a special unit within the TAF
called Boubha Guards. This unit is tasked to engage with HDA
directly, and if necessary, across the border, in order to respond to
Hakovas support of the FKA.
A system of sexual predation has been in place since the troops
of the Boubha Guards were deployed in Kouka. Senior-ranking
officials will sexually abuse and rape women insubordinate officials.
This was proven by the preliminary report recorded by the
Commission of Inquiry established by the UN General Assembly,
especially tasked to scrutinize the alleged disturbing practices.
This was made known to General Vande, as corroborated by the
fact that he was questioned about these immoral practices of his
insubordinates and he gave a statement that his soldiers are all adults
and that he has no responsibility for their activities during their free
time.
 Article 8 (2)(e)(vi) being already a fact, we now need to prove
and establish the Command Responsibility of General Vande, being
liable for atrocities done by his insubordinates, being under his order
and command.
General Gerard Vande, as defined by the background facts of
the case, being the Defense Staff of the TAF, is the highest-ranking
and senior-most officer in the TAF. He advises the president, and the
minister of defense on all defense matters and is responsible for the
use of force and command of all military operations by the TAF.
Given the abovementioned definition, it is understood that
whatever consequence and circumstance arise from the operations of
his subordinates, by virtue of his position and command, he shall be
responsible for them. The rape and sexual abuse happened when
General Vande established the Boubha Guards and deployed them to
Kouka to conduct the Operation Blanc (March 2015 December
2015.)
General Vande or the defense may argue that the insubordinates
acted in their own capacity and beyond the scope of their duty, hence
Vande should not be responsible for them. This is without merit.
Assuming that was the case; it must be noted that such bad practice of
the insubordinates was made known, through a question, to General
Vande. But Vande did not acted upon it. Rather, he denied
responsibility for his lower-ranking officials merely because he
believes that they did it during their free time. This is not a proper
conduct of a superior official over his command. If he was in good
faith, he couldve examined and investigated through his subordinates
internally and tried to find out if such allegations of rape and sexual
abuse did happen. If such atrocities did happen, a prudent superior
would give necessary sanctions to his faulted subordinates, for them
to be reconstructed morally. This conduct of a military commander is
defined by letter (ii), (a), Article 28 of ICC.
III. War Crime of the Order of Displacement
In the opinion of the prosecution, Operation Blanc, designed by
General Vande, is in violation of Article 8 (2)(e)(viii) which provides:
(viii) Ordering the displacement of the civilian population for
reasons related to the conflict, unless the security of the civilians
involved or imperative military reasons so demand;
Operation Blanc, which was spearheaded by the Boubha
Guards together with TAF soldiers, flushed all Ombrian residents
from their houses to the central square and asked them one by one of
their religion. Those who answered as believers of Boubha were
greeted and sent back home; whereas the Ombrians were assembled
and force to take the commitment to convert to Boubha, which
required them to go to the Boubha sanctuaries three times a day.
Anyone who did not attend the classes three times will be imprisoned.
The imprisonment took place in the newly-built detention centers
located more than 200kms away. Only a small number of Ombrians
converted to Boubha.
 This is in clear violation of Article 8 (2)(e)(viii). The
displacement done in Operation Blanc was because of the defiance of
the Ombrians to convert their religion and not for their security nor by
imperative military reasons. This, res ipsa loquitur, manifests the
gruesome intent of Operation Blanc whose primary and absolute goal
is to obliterate the Ombrians, by any means necessary.
DEFENSE
The defense argues that the conflict can be classified as an
International Armed Conflict (IAC). They contend that there are two
states involved, which are the Toukanov and the Hakova. Moreover,
the state of Hakova had helped the FKA through transfer of weapons
and deployment of hundreds of tanks and thousands of men.
Another main point in their arguments is that General Vande is
not guilty of the war crimes being accused to him. It is true that he is
the commander of the Toukanov Armed Forces (TAF), but his orders
were only directed for the protection of the convoy and the goods to
be delivered to the Boubhan people, inhabiting parts of Kouka
province, not to inflict injury against the civilians.
Moreover, the elements under Article 8(2)(e)(i) require the
establishment of five elements, and three of which are not satisfied.
Thus, the accusation of a war crime is not enough for General Vande
to be held responsible. It is also a fact that the Ombrians who died in
the aggression are civilians, however, they have participated in the
conflict when they tried to steal food and arm weapons from the
convoy. As a prudent soldier who only want to uphold his duty, which
is to protect the trucks until it reached its destination, acted only on his
official task. Conflict arose by the first move of the civilians, and
when the TAF forces gave warning shots to halt the aggression, the
civilians opened fire to the forces. In line with the forces duty to
protect the trucks and the goods inside, and also with their lives being
compromised in the said conflict, soldiers are deemed justified in their
act of returning fire, under the doctrine of self-preservation, though
civilians were fleeing then, as it is provided. Toukanov was under
martial law and to ensure that civilians already ended their up rise,
forces continued to fire at the civilians.
For the second charge of war crime, he is not liable for the
rapes involving TAF troops and other wrongful acts of his
subordinates for he is just the General. The Commander-in-chief, who
is President Daniel Arlet, should be responsible for those events in
accordance to the principle of command-responsibility because he is
the highest leader of the bureaucracy. That the soldiers committed the
crime of rape dring their free time and therefore cannot be attributed
to General Vande. Finally, the defense argues that the General should
not be accused of displacing Ombrians for the act of displacement is
not permanent in nature and cannot be considered as imprisonment.
They argue that the orders of displacement by General Vande were
merely conditional and that it were the Bhouba guards who committed
an abuse of power.
 I. War Crime of Attacks Against Civilians
The General is not guilty for attacking the civilian Ombrians.
For a war crime to be established, under Article 8(2)(e)(i) prescribes
five elements and three of which are not present in the conflict
happened. The requisites for General Vande be held liable shall
concur: (1) he did not directly participated in the aggression, (2) nor
he did order the attack and inflict injury, with intent, toward the
civilian Ombrians, and (3) those Ombrians who were involved in the
conflict took part in the hostilities. It is true that General Vande
ordered the troops to protect the goods and convoy but he never,
directly, ordered to attack those civilians. Also, those civilians
attacked the convoy with the intent to steal the goods which is a good
reason for the troops to defend themselves and the convoy, which can
be considered as property. They, the TAF members, were under
pressure. After firing a warning shot, the Ombrians still proceeded
with their attack and killing the driver of TAF which lead the armed
forces of an aggressive action. It is only natural for them to react and
do whatever it takes to survive and successfully to do their mission.
Therefore, those Ombrians is not under the immunity of being
protected in times of hostilities because they have participated in the
conflict.
Another reason it that the TAF was under duress and acted only
on self-defense. Duress can be defined as something which results
from a threat of imminent death or of continuing or imminent serious
bodily harm against that person or another person, and the person acts
necessarily and reasonably to avoid this threat, provided that the
person does not intend to cause a greater harm than the one sought to
be avoided. (Article 31, paragraph d, of the Rome Statute of the
International Criminal Court)
The civilians (Ombrians), went to the delivery truck full of
goods for the Boubhan people of Kouka, tried to steal the same and
grab some of the army weapons from the convoy. For this, the Army
fired warning shots with the intent to halt the civilians and dispersed
them, however, Ombrians answered with gunshot killing a TAF
soldier and a truck driver. TAF soldiers under the threat of serious
bodily harm and given the fact that the TAF soldiers were
outnumbered, the immediate reaction was proportionate to the degree
of danger posed by the Ombrians who had the strength to annihilate
them had they not fired back.
II. War Crime of Rape
There is an insufficiency of evidence in order to establish actual
incidence of penetration, and that even assuming that there were
incidence of rapes, there is absence of nexus between the war crimes
of rape and NIAC (Non-International Armed Conflict).
According to the case of Prosecutor v. Prestige, it establishes
that in order for command-responsibility to be effectively established,
if there were indeed incidence of rape during that time, effective
control is must established.
 Article 61 of the Rome Statute, that there must be sufficient
evidence in order to establish a substantial claim that the perpetrator
actually committed the crime. In this particular circumstance,
*inaudible* recognizes the admissibility of documentary documents,
there is no case with the pre-trial stage of the ICC has proceeded in
the trial merely on the documentary documents even if *inaudible* it
did not confirm the charges merely on the but relying with what other
witnesses' testimony
Moreover, Intra-party violence during armed conflict is not
covered by International Humanitarian Law (IHL), therefore, intra-
military rape and sexual abuse is not a crime against humanity.
Article 7(1) of the Rome Statute states that crimes against humanity
means:
any attack of the following acts (including rape, sexual
slavery, enforced prostitution, etc.) when committed as
part of a widespread or systematic attack against any
civilian population, with knowledge of the attack.
Article 8 of the same Statute also defined war crimes as
primarily dealing with grave breaches of the Geneva Convention (III),
which only covers civilian victims. The requirement that the victims
be civilians is significant, for non-civilians are not protected by IHL.
The case of Prosecutor v. Sesay is therefore commanding
when the Special Court for Sierra Leone concludes that the law of
armed conflict does not protect members of armed group from acts of
violence directed against them by their own forces (par. 1451),
because IHL was never intended to criminalize intra-party violence
(par. 1453).
In the instant case, nowhere in the compromise that a civilian
was raped during the conduct of hostilities. What makes this more
ridiculous is that reports of the alleged rape were only based on pure
hearsay and speculative evidence i.e based on unverified reports. Not
even a single alleged victim came out in open to attest to the veracity
and truthfulness of such reports. Even those reports claimed that the
alleged victims were members of the TAF and not civilians. A man
or woman enter into a forcibly sex would confide everything if
chance, assurance and protection are given to them but to this case no
one came out, thus, it is presumed such reports were only made for the
purpose of corrupting General Vande.
Supposing but not recognizing that intra-military rape is a crime
against humanity, under international case law on de jure (in law)
commanders, only Prisoners Of War camp commander and executive
commanders can be made liable on the crimes committed by their
subordinates.
In line to the preceding argument, if there was a crime that was
committed, the one that should bear responsibility as the superior is
President Daniel Arlet as he is the commander-in-chief of the
Toukovan Armed Forces and not General Vande, who was the Chief
of Staff of TAF and only acted on behalf of the former. His position
was merely advisory and cannot directly influence the decision of the
President upon measures to be taken by the armed forces against the
Free Kouka Army (FKA) rebels of the province. Clearly Generl
Vandes position was neither prisoner of war camp commander nor
executive commander.
Furthermore, the violence and/or crime committed by General
Vandes subordinates, in this case his high-ranking officers and some
senior soldiers, acted beyond what was tasked to them by their
General, which was only to reclaim lost territories from the FKA, and
which cannot be attributed to the General as act of himself. As the
senior officers committed crimes outside their official duty, General
Vande was not responsible anymore to this unlawful and animalistic
acts. Hence, an officer or subordinate acted beyond the scope of his
jurisdiction or assigned duty, is personally acted on his own capacity
and therefore be solely held liable for the crimes he had committed.
III. War Crime of the Order of Displacement
The required elements of crime under Article 8(2)(e)(viii) are
not satisfied. Article 8(2)(e)(viii) of the ICC prohibits the
displacement of the civilian population in the context of a non-
international armed conflict, unless the security of the civilians
involved or imperative military reasons so demand.
This conduct is prohibited under the same terms in Article 17
Additional Protocol II and reflects customary international
humanitarian law. The elements of the said crime are:
1. The perpetrator ordered a displacement of a civilian population;
2. Such an order was not justified by the security of the civilians
involved or by military necessity;
3. The perpetrator was in a position to effect such displacement by
giving such order;
4. The conduct took place in the context and was associated with a
non-international armed conflict; and
5. The perpetrator was aware of factual circumstances that established
the existence of an armed conflict.
Element 1 is not satisfied for there was no displacement in this
case. It is a requirement under the first element that there should be a
displacement of a civil population. Displacement presupposes a
forcible and unlawful transfer of the inhabitants of the occupied
territory. In the case at bar, there was no unlawful transfer of
population. The order of displacement was provisionary in nature and
that it is pursuant to public law.
The Ombrian inhabitants of the municipalities regained by FKA
was not forcibly removed out of the territory. In fact, General Vande
was under the authority vested upon him through the Martial Law
move the civilians to a detention centre.
Hence, there must be an aim to permanently remove
inhabitants. Thus if mere detention or imprisonment is committed
against inhabitants, there is no displacement to speak of. Furthermore,
it was the Bhouba guards who abused their powers and not General
Vande. From this, General Vande cannot be held liable.

VIEWS ON THE DECISION

The situation in Toukanov as a non-international armed conflict

Under Article 3 common to the Geneva Conventions of 12

August 1949, two requirements are necessary for such situations to be
classified as non-international armed conflicts.

The first requires that the hostilities must reach a minimum

level of intensity. This may be the case, for example, when the
hostilities are of a collective character or when the government is
obliged to use military force against the insurgents, instead of mere
police forces. The second states that non-governmental groups
involved in the conflict must be considered as "parties to the conflict",
meaning that they possess organized armed forces. This means for
example that these forces have to be under a certain command
structure and have the capacity to sustain military operations.

The FKA is an organization that has significant political

influence but is not allied to any particular country or state, or any
established institution and, possessing organized armed forces with a
command structure and the capacity to sustain military operations,
qualify as a non-governmental armed group. The TAF, on the other
hand, is considered as the main military agent of Toukanov. Both
parties are collective in character and satisfies the first requirement
when TAF, as a the army of Toukanov, attacked the FKA, which in
this case, is considered as the insurgents. Thus, the situation in
Toukanov reached a minimum level of intensity when the TAF used
military forces against the FKA. Moreover, the second requisite is
also attendant, due to the fact that FKA, as a non-governmental group,
is considered as a party to the conflict and they also have a certain
command structure (appointment of majors and colonels) and
organized armed forces (resistance movement). With the two
requirements present, the situation can indeed be specified as a non-
international armed conflict.

Count One - The 10 November incident

It is true that it was General Gerard Vande who ordered to use

all the means necessary for the protection of the Lannister trucks.
However the actions of TAF soldiers, specifically injuring the
civilians, were done beyond the command of General Vande. Because
in fact, the civilians were actually retreating but the TAF soldiers still
continued to fire shots. Therefore, the actions of the soldiers will not
make General Vande liable for the war crime of attacking the civilian
population since their actions are not necessary to obey the specific
order of General Vande.

Count Two - The war crime of rape following the doctrine of

command responsibility

The doctrine of command responsibility pertains to a form

of responsibility for omission to act: a superior may be held
criminally responsible under that doctrine where, despite his
awareness of the crimes of subordinates, he culpably fails to
fulfill his duties to prevent and punish these crimes.

The commission of one or more crimes attributable to a

subordinate is a pre-requisite for the application of that doctrine.
In addition, the following requirements have been identified as
forming part of the doctrine of superior responsibility under
customary international law:

(i) A relationship of superior-subordinate linking the

accused and those who committed the underlying offences
at the time of the commission of the crime;

(ii) The knowledge on the part of the superior that his

subordinates have committed or taken a culpable part in the
commission of a crime or are about to do so; and

(iii) A failure on the part of the superior to take necessary

and reasonable measures to prevent or to punish those crimes.

General Vandes deliberate refusal to address the rape

incidents that took place within the TAF while under his superior
command is evidenced through his statement My soldiers are all
adults. I am not responsible for their activities during their free
time. As a military commander, my work is to develop strategies
to counter the terrorists and to supervise my troops on the
ground.. With the above statement having been established, and
with all the requisites mentioned above having been met in the
situation, General Vande is indeed guilty of the war crime of rape
following the doctrine of command responsibility.

Count Three - With respect to the treatment of Ombrian

residents in Kouka under Operation Blanc

The war crime of ordering the displacement of the civilian

population for reasons related to the conflict committed by General
Vande is embraced under the category of commission of war crime
through another person, under Article 25 (3) (a). The said article
contains a third alternative of the ICC Statute, establishing criminal
responsibility of a perpetrator who uses another person as a tool to
commit a crime under international law, regardless of whether the
direct perpetrator is liable himself. With the established facts
evidencing that General Vande indeed ordered the said displacement,
and that the said crime was indeed committed by the ordered
subordinates, which in this case are the Bhouba guards, General
Vande shall be charged with individual criminal responsibility.
 UNIVERSITY OF SANTO TOMAS
Faculty of Civil Law

2017 NATIONAL MOOT COURT COMPETITION

ON INTERNATIONAL HUMANITARIAN LAW

Paper Submitted by:

BELTRAN, Justin Santiago L. III
CAGALINGAN, Samuel S.
GUEVARRA, Benigno Gionne J. II
LORENO, Andrea Nicole C.
MANLAPID, Glenn Matthew C.
MONDIDO, Atheena Mae M.
PARBA, Bonn Lorenzo P.
1F