6Prosecution

Prosecutor

v.

General Bilbo Baggins

February 2018
 TABLE OF CONTENTS

TABLE OF CONTENTS ..............................................................................................................2

INDEX OF AUTHORITIES .........................................................................................................5

STATEMENT OF FACTS ............................................................................................................8

SUMMARY OF PLEADINGS ...................................................................................................10

PLEADINGS ................................................................................................................................11

I. Preliminary matters ........................................................................................................11

A. Admissibility of the case under the Rome Statute ...................................................11

B. Nature of the conflict................................................................................................12

C. Burden of proof ........................................................................................................13

II. General Baggins is liable for the crimes of intentionally directing attacks against

hospitals, and for the crime against humanity of other inhumane acts ..........................14

A. General Baggins is individually criminally responsible for committing the war

crime under Article 25(3)(d) of the Rome Statute………………………………...14

B. General Baggins is liable for the war crime of attacking protected objects ........….15

1. The perpetrator directed an attack ......................................................................15

2. The object of the attack was one or more buildings dedicated to religion,

education, art, science or charitable purposes, historic monuments,

hospitals or places where the sick and wounded are collected, which

were not military objectives ...............................................................................16

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 3. The perpetrator intended such building to be the object of the attack ...............17

4. The conduct took place in the context of and was associated with an

armed conflict not of an international character.................................................17

5. The perpetrator was aware of factual circumstances that established the

existence of an armed conflict ............................................................................17

6. The leaked information about GAF funding the FTN is admissible as

evidence ..............................................................................................................18

C. General Baggins is liable for the crime against humanity of other

inhumane acts ...........................................................................................................19

1. The perpetrator inflicted great suffering, or serious injury to body or to mental

or physical health, by means of an inhumane act ...............................................19

III. General Baggins is liable for the war crime of attacking civilians and for the

crimes against humanity of murder under individual criminal responsibility................20

A. General Baggins is individually criminally responsible for committing the war

crime under Article 25(3)(b) of the Rome Statute………………………………...20

B. War crime of attacking civilians ..............................................................................21

1. The perpetrator directed an attack ......................................................................21

2. The object of the attack was a civilian population as such or individual

civilians not taking direct part in hostilities .......................................................21

3. The perpetrator intended the civilian population as such or individual

civilian not taking direct part in hostilities to be the object of the attack...........22

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 IV. General Baggins is liable for the war crime of employing bullets which expand or

flatten easily in the human body.....................................................................................23

A. Article 8(2)(e)(xv) of the Rome Statute prohibits the use of expanding

bullets .......................................................................................................................23

B. Assuming expanding bullets may be employed, its employment was

disproportionate……………………………………………………………………24

C. C. General Baggins is individually criminally responsible when he facilitated the

crime by providing expanding bullets to Gondor under Article 25(3)(c) .................25

CONCLUSION/PRAYER FOR RELIEF .................................................................................27

Page 4 of 27
 INDEX OF AUTHORITIES

STATUTES, CONVENTIONS, AND OTHER LAWS Page/s

Elements of Crimes of the Rome Statute………………………………………………..….……22

Protocol Additional to the Geneva Conventions (Protocol I&II)…………………...…….....12, 15

Rome Statute…………………………………………………………………………….……….11

Vienna Convention on the Law of Treaties………………………………………….…..………23

JURISPRUDENCE

Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, (09.02.1998) …………………………….…..25

Prosecutor v. Al Bashir, Decision on the Prosecution’s Application for a Warrant

of Arrest, ICC-02/05-01/09 (04.03.2009)…………………………………………………….….11

Prosecutor v. Al Bahar, Decision on the Confirmation of Charges, ICC‐02/05‐02/09

(15.03.2010)……………………………………………………………………………………...16

Prosecutor v. Al Mahdi, Judgment, ICC-01/12-01/15 (27.09.2016)…………………………….15

Prosecutor v. Bemba, Decision pursuant to Article 61(7)(a), ICC-01/05-01/08-424

(15.06.2009)……………………………………………………………………………………...11

Prosecutor v. Blaskic, Judgment, IT-95-14-T (03.03.2000)……………………………………..22

Prosecutor v. Delalić et al., 'Judgment, IT-96-21-T, (16.11.1998)………………...………...15, 19

Prosecutor v. Gaddafi, Decision Requesting Further Submissions on Issues Related to the

Admissibility, ICC-01/11-01/11, (7.12.2012)……………………………………………………12

Prosecutor v. Gbagbo, Decision adjourning the hearing on the confirmation of charges pursuant

to article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11, (03.06.2013)……………………..20

Prosecutor v. Karadzic, Prosecutor’s Pre-Trial Brief, IT-95-05/18-PT,

(29.06.2009)……..…………………………………………………………………………….…22

Prosecutor v. Katanga and Ngudjolo Chui, Decision pursuant to Article 74 of the Statute, ICC-

01/04-01/07-3436-tENG, (07.03.2014)………………………………………………….......18, 21

Prosecutor v. Kristic, Judgment, IT-98-33-A, (08.02.2001)……………………………………..26

Prosecutor v. Kupreskic, Judgment, IT-95-16-T, (01.14. 2000)…………………………………24

Prosecutor v. Limaj, Judgment, IT-03- 66-T, (30.11.2005)……………………………………..13

Prosecutor v. Lubanga, Decision on the Prosecutor’s Application for a warrant of arrest, ICC-

01/04-01/06, (14.12. 2006)……………………………………………………………....12, 13, 23

Prosecutor v. Mbarushimana, Confirmation of Charges, ICC-01/04-01/10,

(16.12.2011)………………………………………………………………………………….13, 22

Prosecutor v. Mudacumura, Decision on the Prosecutor's Application under Article 58, ICC-

01/04-01/12, (13.07.2012)……………………………………………………………………….20

Prosecutor v. Ntawukulilyayo, Judgment and Sentence, ICTR-05-82, (03.08.2010)…………...25

Prosecutor v. Oric, Judgment, ICTY-03-68-T,T Ch II, (30.06.2006)…………………….……...14

Page 6 of 27
BOOKS, JOURNALS, AND OTHER SOURCES

Conference of Government Experts on the Use of Certain Conventional Weapons: Report, ICRC,

(1975)…………………………………………………………………………………………….24

Cottier, Commentary on the Rome Statute of the International Criminal Court ‘War crimes’,

Otto Triffterer, 184 (1999)……………………………………………………………………….23

Henckaerts et. al, Customary International Humanitarian law, 1 Cambridge University Press,

(2005)………………………………………………………………………………………...23, 24

Laving, The Reliability of Open Source Evidence In the International Criminal Court, Lund

University, 51 (2014)…………………………………………………………………………….17

Lee et. al, A Study on Emergency Power Systems in Hospital Buildings during Massive Power

Outage to Ensure Maintenance of System Functions, 1 Advanced Science and Technology

Letters, 47 (2014)………………………………………………………………………….……..19

Schindler, The Different Types of Armed Conflicts According to the Geneva Conventions and

Protocols, 163 RCADI (1979)…………………………………………………………………...13

Sliederegt, Individual Criminal Responsibility in International Law, OUP, 198 (2012)………..14

Page 7 of 27
 STATEMENT OF FACTS

Political Unrest and Ensuing Crisis in the United Federation of Gondor

The United Federation of Gondor comprises of seven (7) federal states, among them is Umber
which is quite distinct from the rest of the other states since its social, economic, and cultural
climate are largely influenced by a select group of highly respected senior men and women
called the “Council of Elders”. Umber has always asserted its historical right to manage its own
affairs without federal interference.

The Modernization of the GAF and the Rising Nationalist Sentiments

In order to modernize the Gondor Armed Forces (GAF), Gondor entered into a military
cooperation agreement with Rohan. The cooperation agreement was followed by a multi-million
dollar trade and investment agreement (TIA) which granted Rohan preferential treatment in the
exploitation of natural resources in Umber. The TIA intensified nationalist sentiments in Umber
that on 20 March 2012, its State Assembly declared secession from Gondor.

The Attacks in the Town of Heron, Mordor

General Baggins tasked the GAF Intelligence Command (INTELCOM) to locate as a matter of
priority the ‘Elders’. On 15 September 2012, based on an intelligence report, General Baggins
ordered a strike in the apartment building in Mordor where members of the Council of Elders
were believed to reside. The said building was struck by a missile launched from an unmanned
aerial vehicle (UAV). The Mordor government later protested against the violation of its territory
and airspace.

Cyber Attacks on the Power Grid in the City of Colmer

On 5 October, 2012, a city-wide power failure occurred in Colmer. The outage affected all public
services, including traffic control systems, hospitals and medical transport services, and the
operation of the water treatment and distribution systems. The network failure was attributed to a
well-planned cyber-operation that temporarily disabled the operation of the Supervisory Control
and Data Acquisition (SCADA).

Page 8 of 27
Taking advantage of the chaos, on 6 October 2012, at 4:00 in the morning, the GAF launched a
military offensive over the armed forces defending the outskirts of East Colmer. The purpose
was to disrupt electronic circuits in weapons, armoured vehicles of the Umber forces entrenched
outside Colmer. The cyber-attack was attributed to Rohan’s Ministry of Defence Information
Technology Center (INTELCOM), but the attack on the central archive of the General Hospital
was claimed by a group self-styled as the “Fighting Terrorist Networks Company” (FTN) which
sought to uphold Gondor’s integrity and to fight against terrorist networks.

Regaining Control of Umber Towns and Cities

To strengthen their control over East Colmer, GAF units started to comb the area to track down
pockets of resistance. On 11 October, a GAF unit stormed a two-storey building sheltering a
group of some twelve NF militants. The GAF patrol unit succeeded in taking over the building
and neutralizing the militants. During the assault, six militants were killed and four seriously
injured. Three civilians caught in the cross fire were also injured.

Page 9 of 27
 SUMMARY OF PLEADINGS

First, the case brought before the Trial Chamber is admissible pursuant to Article 19 of
the ICC Statute.

Second, the conflict between the GAF and the NF militants was a non-international
armed conflict (NIAC).

Third, Baggins is criminally liable for contributing to the commission or attempted

commission of the war crime of violence to life committed against persons taking no active part
in the hostilities, for the war crime of intentionally directing attacks against hospitals and places
where the sick and wounded are collected, and for crime against humanity of other inhumane
acts intentionally causing great suffering or serious injury to body or to mental or physical health
with respect to the attack on the power grid in the City of Colmer between the 5th and 11th of
October 2012.

Fourth, Baggins is criminally liable for the war crime of intentionally directing attacks
against individual civilians not taking direct part in the hostilities, and for the crime against
humanity of murder, with respect to the attack on 15 September 2012 in the town of Heron,
Mordor.

Fifth, Baggins is criminally liable for the war crime of employing arms calculated to
cause unnecessary suffering, notably bullets which expand or flatten in the human body, with
respect to the search and sweep operations that took place on 11 October 2012.

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 PLEADINGS

I. PRELIMINARY MATTERS
Baggins faces the Pre-Trial Chamber I for the confirmation of charges, 1 where under
such proceeding, the Prosecution shall provide sufficient evidence to establish substantial
grounds to believe that herein Defendant committed each of the crimes charged.2

The Prosecutor must “offer concrete and tangible proof demonstrating a clear line of
reasoning underpinning the specific allegations.”3 The Chamber must be thoroughly satisfied
that the Prosecutor’s allegations are sufficiently strong to commit the person to trial.4

A. Admissibility of the case under the Rome Statute

The Court’s exercise of jurisdiction in this current case is consistent with the
jurisdictional and admissibility conditions set forth in the Rome Statute. The International
Criminal Court has authority to exercise jurisdiction over persons accused of committing most
serious crimes concerning the international community so long as those crimes were
committed after the Rome Statute entered into force for the State Party. 5

Under Article 17 of the Statute, the requirements for inadmissibility are not satisfied
with respect to Gondor thus, rendering the case admissible. In making its decision on the
Prosecutor’s application for the arrest warrant, Pre-Trial Chamber I held that two issues must
be evaluated when determining admissibility: first, whether there are national investigations

1
Facts, ¶31.

2
Rome Statute [Statute], art. 61(5).

3
Prosecutor/Al Bashir, Decision on the Prosecution’s Application for a Warrant of
Arrest, ICC-02/05-01/09, ¶¶52-53.

4
Prosecutor/Bemba, Decision pursuant to Article 61(7)(a), ICC-01/05-01/08-424
(15.06.2009), ¶29.

5
Statute, art.11(2).
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 and prosecutions pertaining to the case at hand that might pre-empt ICC jurisdiction, and
second, whether the gravity threshold for the ICC is met. 6

The United Federation of Gondor is unable to genuinely carry out an investigation or

prosecution against the accused because the latter lacks the intent to bring the persons
concerned to justice, more so, to impose the proper punishment deserved by the accused. 7
Article 17(2) of the Rome Statute lays down certain standards to determine lack of will. The
Statute finds a lack of will when there is an “unjustified delay in the proceedings which in the
circumstances is inconsistent with the intent to bring the persons concerned to justice.”8

The inaction of the Gondor government with regard to the war crimes committed by
General Baggins attests to the fact that Gondor never honestly intended to bring the defendant
to justice. Moreover, Gondor never attempted to attain physical possession of the defendant to
conduct a trial because during the indictment issued by the ICC, General Baggins was
travelling overseas.9 Thus, the Prosecution submits that the current case is admissible.

B. Nature of the conflict

The conflict between the Gondor Armed Forces (GAF) and the NF militants was a
non-international armed conflict (NIAC). It is defined as those conflicts between
governmental forces and non-governmental armed groups, or between such non-

6
Prosecutor/Lubanga, Decision on the Prosecutor’s Application for a Warrant of Arrest,
ICC-01/04-01/06, (14.12. 2006) ¶29.

7
Prosecutor/Gaddafi, Decision Requesting Further Submissions on Issues Related to the
Admissibility, ICC-01/11-01/11, (7.12.2012) ¶6.

8
Statute, art. 17(2)(b).

9
Facts, ¶29.

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 governmental armed groups only.10 In the present case, the GAF are the governmental forces
and the NF militants are the non-governmental armed group.

Two requisites are required to determine the existence of NIAC. Firstly, the hostilities
must reach a minimum level of intensity. 11 This may be the case 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.12 Secondly, non-governmental groups involved in
the conflict must be considered as "parties to the conflict" which means that they are an
organized armed force under a certain command structure capable at sustaining military
operations.13 In the present case, the citizens of Umber who are sympathetic to secession and
self-determination regrouped themselves as Umber Forces which also comprised of police
and civil defence forces, as well as dissident soldiers and officers of the GAF who were later
referred to as the NF militants.14

C. Burden of proof
The Prosecution shall provide “sufficient evidence to establish substantial grounds to
believe that the defendant committed the crimes charged.”15 Furthermore, the Prosecution
will demonstrate “a clear line of reasoning underpinning specific allegations,” 16 going

10
Protocol Additional to the Geneva Conventions (Protocol II) [AP2], art. 1(1).

11
Id.

12
Prosecutor/Limaj, Judgment, IT-03- 66-T, (30.11.2005), ¶¶135-170.

13
Schindler, The Different Types of Armed Conflicts According to the Geneva
Conventions and Protocols, RCADI 163, 147 (1979).

14
Facts, ¶¶9-10&27.

15
Statute, art.61(7).

16
Prosecutor/Mbarushimana, Confirmation of Charges, ICC-01/04-01/10, (16.12.2011),
¶40.
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 beyond “mere theory or suspicion.”17 Likewise, the Defense will contend that these standards
have not been met for any of the three charges presented before the Court.

II. GENERAL BAGGINS IS LIABLE FOR THE CRIMES OF INTENTIONALLY

DIRECTING ATTACKS AGAINST HOSPITALS, AND FOR THE CRIME
AGAINST HUMANITY OF OTHER INHUMANE ACTS 18

A. General Baggins is individually criminally responsible for committing the war crime under
Article 25(3)(d) of the Rome Statute
In the present case, there is no doubt that General Baggins actively committed and
participated in all phases of the armed conflict with respect to the attack in the city of Colmer
between the 5th and 11th of October 2012,19 to the ordering of the deployment of an
electromagnetic pulse weapon over the armed forces,20 and the tracking down of pockets of
resistance in East Colmer.21

The superior can be held liable for having actual knowledge of the crime. 22
Indications relevant for gathering knowledge can be the position of superior, number and
nature of crimes, availability of reports, and geographical proximity. 23 General Baggins’ act

17
Prosecutor/Lubanga, ICC-01/04-01/06-803, ¶39.

18
Facts, ¶31.

19
Facts, ¶20.

20
Id.

21
Facts, ¶23.

22
Prosecutor/Oric, Judgment, ICTY-03-68-T,T Ch II, (30.06.2006) ¶321.

23
Sliederegt, Individual Criminal Responsibility in International Law, OUP, 198 (2012).
Page 14 of 27
 of calling a meeting with the Gondor Prime Minister on 1 October 2012 to discuss the
necessary steps in addressing the armed conflict24 is also indicative of his knowledge.

The principle of individual criminal responsibility is not limited to persons who

directly commit the crimes in question. 25 Instead, "all persons who participate in the
planning, preparation or execution of serious violations of international humanitarian law
contribute to the commission of the violation and are, therefore, individually responsible. 26

B. General Baggins is liable for the war crime of attacking protected objects

1. The perpetrator directed an attack

An attack means acts of violence against the adversary, whether in offence or in
defense.27 The facts of the case establish that the city-wide power failure occurred which
affected all public services, including traffic control systems, hospitals and medical
transport services, and the operation of the water treatment and distribution system 28
have been instigated by the GAF, after it was discovered that money transfers by the
Ministry of Defence and Security of Gondor to the FTN (Fighting Terrorist Network)
Company had been taking place for more than a year.29

24
Facts, ¶19.

25
Prosecutor/Delalić et al., IT-96-21-T, (16.11.1998) ¶319.

26
Id.

27
Protocol Additional to the Geneva Conventions (Protocol I)[AP1], art. 49(1).

28
Facts, ¶23.

29
Facts, ¶22.

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 It was also General Baggins who ordered to track down pockets of resistance in
East Colmer which led to the attack on October 11, 2012, in a two-storey building
sheltering a group of some twelve (12) militants.30 Thus, the intent was evidently to
attack the militants in the midst of the armed conflict.31

2. The object of the attack was one or more buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals or places where the sick
and wounded are collected, which were not military objectives.
The cyber-attack at General Hospital that caused fatal disturbances to the medical
services satisfies the element of attacking hospitals or places which were not military
objectives.

A military objective refers to an object which by its nature, location, purpose or

use: (a) make an effective contribution to military action, and (b) whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage. 32 The damage or destruction must have been committed
intentionally to institutions which may clearly be identified as dedicated to health care
institutions and which were not being used for military purposes at the time of the acts. In
addition, the institutions must not have been in the immediate vicinity of military
objectives.33

30
Facts, ¶23.

31
Prosecutor/Al Mahdi, Judgment, ICC-01/12-01/15 (27.09.2016), ¶15.

32
Prosecutor/Al Bahar, Decision on the Confirmation of Charges, ICC‐02/05‐02/09
(15.03.2010), ¶58.

33
Prosecutor/Blaškić, Judgment, IT-95-14-T, (3.03.2000), ¶185.

Page 16 of 27
3. The perpetrator intended such building to be the object of the attack.
To prove intention, the perpetrator must act within a direct intent to damage or
destroy the property in question.34 General Baggins’ action showed that there was a
deliberate attack on the hospital. The close association of Rohan’s Ministry of Defence
with FTN Company, and the GAF’s money transfers to the FTN, provide a substantial
ground to establish that General Baggins has committed, ordered, solicited, or induced
the attack on the power grid in the city of Colmer.35

4. The conduct took place in the context of and was associated with an armed conflict not
of an international character.
Non-international armed conflict is ongoing when there is protracted armed
conflict between governmental authorities and organized armed groups or between such
groups.36 In the present case, the GAF are the governmental forces and the NF militants
are the non-governmental armed group.37

5. The perpetrator was aware of factual circumstances that established the existence of an
armed conflict.
The GAF soldiers, being the army of the Federal Republic of Gondor, had
knowledge of the ongoing non-international armed conflict during the time of the attack.
Clearly, if a relevant crime was committed in the course of fighting or the take-over of a
town during an armed conflict, this would be sufficient to render the offence a violation
of international humanitarian law.38

34
Prosecutor/Strugar, Judgment, IT-01-42-T, (31.01.2005), ¶311.

35
Statute, art. 25(3)(a-d).

36
AP2, art. 1(1).

37
See discussion on Nature of the Conflict under Preliminary Matters on this paper, 11.

38
Prosecutor/Mucić et. al, Judgment, IT-96-21-T, (16.11.199), ¶193.

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 6. The leaked information about GAF funding the FTN is admissible as evidence
It has to be stressed that the general principle in the ICC Rules of Procedure is
that the Court is free to assess the evidence on a case-to-case basis.39 The Court might
always come to different conclusions in its assessment of evidence or require additional
supporting information.40

Arguing that Prosecution’s case is based largely on hearsay due to an anonymous

source and thus the Chamber must not rely on such evidence is misconceived. According
to Article 69(3) and (4) of the Rome Statute, the parties may submit evidence relevant to
the case and the Chamber may rule on the relevance or admissibility of any evidence in
accordance with the Rules of Procedure and Evidence.41 There is no bar whatsoever in
the Statute and other statutory instruments of the Court which would prohibit the
admission of hearsay evidence and prevent the Trial Chamber from relying on such
evidence.42

In the Katanga case, Trial Chamber did not rule out hearsay evidence
immediately but evaluated its probative value on the basis of the context and
conditions in which it was obtained and with due consideration of the
impossibility of cross examining the information source.43

In the Ngudjolo case, it was ruled that the “fact that evidence is
hearsay does not necessarily deprive it of probative value, ‘although even

39
Laving, The Reliability of Open Source Evidence In the International Criminal Court,
Lund University, 51 (2014).

40
Id.

41
Statute, art. 69(3-4).

42
Id.

43
Prosecutor/ Katanga and Ngudjolo Chui, Decision pursuant to Article 74 of the
Statute, ICC-01/04-01/07-3436-tENG, (07.03.2014) ¶90.
Page 18 of 27
 this will depend upon the infinitely variable circumstances which surround hearsay
evidence.44

C. General Baggins is liable for the crime against humanity of other inhumane acts

1. The perpetrator inflicted great suffering, or serious injury to body or to mental or

physical health, by means of inhumane acts.
Inhumane treatment is an intentional act or omission which, when judged
objectively, is deliberate and not accidental, and causes serious mental or physical
suffering or injury, or constitutes a serious attack on human dignity. 45

The impact of any blackout can be fatal, with those buildings playing an
important part in cities, such as national security facilities, social infrastructure, financial
facilities, communication facilities, research institutes, and hospitals. 46 Any problem
with power supply can lead to social confusion as well as significant economic damages.
Problems with power supply in large general hospitals are particularly risky in that such
problems can lead to the failure of systems that are directly associated with life
support.47 Thus, the Prosecution submits that the lives compromised during the outage
sufficiently qualify the attack as inhumane.

44
Prosecutor/Katanga and Ngudjolo Chui, ICC-01/04-01/07-3436-tENG, (07.03.2014)
¶226.

45
Prosecutor/Delalić et al., 'Judgment, IT-96-21-T, (16.11.1998) ¶543.

46
Lee et. al, A Study on Emergency Power Systems in Hospital Buildings during Massive
Power Outage to Ensure Maintenance of System Functions, 1 Advanced Science and
Technology Letters, 47 (2014).

47
Id.

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III. GENERAL BAGGINS IS LIABLE FOR THE WAR CRIME OF ATTACKING
CIVILIANS AND FOR THE CRIMES AGAINST HUMANITY OF MURDER UNDER
INDIVIDUAL CRIMINAL RESPONSIBILITY

A. General Baggins is individually criminally responsible for committing the war crime under
Article 25(3)(b) of the Rome Statute

Article 25(3) imputes criminal responsibility to a perpetrator who “ordered”

another to commit a crime.48 In the case of Mudacumura, the perpetrator must be (a) in a
position of authority, (b) instructing another person, (c) having a direct effect on the
commission of the crime, (d) which the person was aware would result a crime.49

All elements are met here, as Baggins was in a position of authority as Chief of
Defence of GAF.50 The facts clearly establish that he “ordered” two consecutive strikes on
the Colmer apartment building that had been carried out.51 The Defendant’s order of the
first strike was immediately carried out as a missile struck the apartment block, and thus
had a direct effect.52 Most importantly, the Defendant was fully aware of the existence of
civilian survivors and intended to kill them by ordering an immediate second attack.53

48
Prosecutor/Gbagbo, Decision adjourning the hearing on the confirmation of charges
pursuant to article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11, (03.06.2013) ¶243.

49
Prosecutor/Mudacumura, Decision on the Prosecutor's Application under Article 58,
ICC-01/04-01/12, (13.07.2012) ¶63.

50
Facts, ¶5.

51
Facts, ¶17.

52
Id.

53
Id.

Page 20 of 27
B. War crime of attacking civilians

1. The perpetrator directed an attack

The facts of the case established that when General Baggins was alerted to the
presence of members of the Council of Elders in an apartment building located in Heron,
he immediately ordered a strike on the building notwithstanding the knowledge that ten
families also lived there.54

Subsequently, he also ordered an immediate second strike on the site.55 Such

strikes are forms of an attack and even the mere launching of an attack without any harmful
impact on the civilian population or individual civilians is sufficient to fall within the
meaning of “attack” under Article 8(2)(e)(i).56

2. The object of the attack was a civilian population as such or individual civilians not
taking direct part in hostilities

A civilian is anyone who is not a member of the State or non-State armed forces57
and making the civilians as objects of attack or doing acts or threats of violence to spread
terror are prohibited.58

When General Baggins ordered a strike on the building, she and her immediate
advisors watched the attack and its aftermath on video transmitted by a hovering drone

54
Facts, ¶17.

55
Id.

56
Prosecutor/Katanga, ICC-01/04-01/07-55, (6.07.2007) ¶37.

57
Id. ¶788.

58
AP2, art. 13.

Page 21 of 27
 where it was seen that two adults and a child were climbing out of the rubble. 59 General
Baggins was said to have immediately ordered a second strike. 60 Undoubtedly, these
family members who were affected by the strike were not members of the NF militants.

The presence among the civilian population of individuals who are not classified
within the definition of a civilian does not deprive the entire population of its civilian
character.61

3. The perpetrator intended the civilian population as such or individual civilian not
taking direct part in hostilities to be the object of the attack.

The attacks on the civilian population must be intentional.62 The perpetrator must
mean to engage in the conduct and to cause the consequence, or is aware that it will occur
in the ordinary course of events.63 The threshold for mental element is that the perpetrator
knew or should have known about the civilian character of the objects damaged. 64 Such
standard is met when the attack had been conducted intentionally with the knowledge, or
when it was impossible to not know that civilian property was being targeted. 65

59
Facts, ¶17.

60
Id.

61
Prosecutor/Mbarushimana, ICC-01/04-01/10 (16.12.2011) ¶148.

62
Elements, art. 8(2)(b)(ii).

63
Elements, art. 30.

64
Prosecutor/Karadzic, Prosecutor’s Pre-Trial Brief, IT-95-05/18-PT, (29.06.2009) ¶4.

65
Prosecutor/Blaskic, Judgment, IT-95-14-T (03.03.2000) ¶180.

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IV. GENERAL BAGGINS IS LIABLE FOR THE WAR CRIME OF EMPLOYING
BULLETS WHICH EXPAND OR FLATTEN EASILY IN THE HUMAN BODY

A. Article 8(2)(e)(xv) of the Rome Statute prohibits the use of expanding bullets

It is a war crime to employ bullets which “expand or flatten easily in the human
body.”66 According to the Vienna Convention on the Law of Treaties, this should be
construed in light of its ordinary meaning.67 Bullets which are not completely surrounded by
hard casing or which are notched with incisions, tend to flatten and expand when impacting
upon the human body, and cause significantly more serious injury than would an equivalent
standard bullet.68 This kind of bullet is absolutely prohibited in an armed conflict.69

The orders of the defendant which launched military offensive steps by storming the
two-storey building is a strong indication that the defendant had knowledge of the
employment of expanding bullets.70 Hence, knowledge means awareness that a circumstance
exists or a consequence will occur in the ordinary course of events. 71

66
Statute, art. 2(e)(xv).

67
Vienna Convention on the Law of Treaties, [Convention], art. 31.

68
Cottier, Commentary on the Rome Statute of the International Criminal Court ‘War
crimes’, Otto Triffterer, 184 (1999).

69
Henckaerts et. al, Customary International Humanitarian law, 1 Cambridge University
Press, 268 (2005).

70
Facts, ¶23.

71
Prosecutor/Lubanga, ICC-01/04-01/06, (29.01.2007), ¶32.

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B. Assuming expanding bullets were employed, their employment was disproportionate
As previously submitted, the Prosecution’s main argument is that the use of expanding
bullets is outright prohibited under Article 8(2)(e)(xv). On the other hand, it is submitted that
its employment may only be justified where it is proportionate, necessary and used with
precaution, in line with established jurisprudence.72

It is a well-established principle that it is unlawful to use any weapon which causes

more suffering or injury than another which offers the same military advantage. 73

It may be submitted by the Defense that these expanding bullets can reduce the chance
of reciprocal fire from the targeted individual, but NF militants were short in number and
were already significantly weakened after they were neutralized by the GAF.74 Ordinary
bullets were capable of causing injuries to NF militants considering that they were trapped in
a two-storey building. Considering that there were only twelve (12) NF militants and the
advantageous position the GAF was already in from its control over east Colmer at the time,
the use of expanding bullets was disproportionate to the negligence of the military advantage
achieved.75

C. General Baggins is individually criminally responsible when he facilitated the crime by

providing expanding bullets to Gondor under Article 25(3)(c)

For the purpose of facilitating the commission of such a crime, the accused must have
aided, abetted or otherwise assisted in its commission or its attempted commission, or

72
Prosecutor/Kupreskic, Judgment, IT-95-16-T, (01.14. 2000) ¶524.

73
Henckaerts et. al, Customary International Humanitarian law, 1 Cambridge University
Press, 237 (2005).

74
Facts, ¶23.

75
Conference of Government Experts on the Use of Certain Conventional Weapons:
Report, ICRC, (1975) ¶9.

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provided the means for its commission, for him to bear responsibility under Article
25(3)(c).76 Worth noting as well is that providing reinforcements can institute aiding or
assisting.77

Under the direction of General Baggins, Gondor entered into a military cooperation
agreement with Rohan.78 The agreement provided for the furnishing of weapons, which
equipped Gondor’s Armed Forces with newly developed modular pistols capable of using
various kinds of ammunition, including “ball ammunition”, full metal jacket bullets, and
“special purpose ammunition” hollow-point bullets, within the next two years. 79 By entering
into such agreement, the defendant generally has aided the employment of such bullets
during the military operation on 11 October 2012.

Furthermore, the charge of Article 25(3)(c) may be committed by an omission in

failing to act or refraining from action.80 The capacity of the defendant to order attacks at
will81 and her refusal to conduct negotiations as a condition for cessation of hostilities 82
represent her capacity to control the GAF and her failure to refrain from further injuries
caused by expanding bullets.

76
Statute, art. 25(3)(c).

77
Prosecutor/Ntawukulilyayo, Judgment and Sentence, ICTR-05-82, (03.08.2010) ¶293.

78
Facts, ¶6.

79
Id.

80
Prosecutor/Akayesu, Judgment, ICTR-96-4-T, (09.02.1998) ¶548.

81
Facts, ¶17.

82
Facts, ¶13.

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 The criminal intent of Article 25(3)(c) can be satisfied by a commander or superior
permitting the use of resources under his or her control, including personnel, to facilitate
the perpetration of a crime.83 General Baggins’ refusal to open negotiations with Umber
and his knowledge of the agreement had been fully implemented and had facilitated the
perpetration of the crime causing unnecessary suffering.

83
Prosecutor/Kristic, Judgment, IT-98-33-A, (08.02.2001) ¶¶137-138.

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 CONCLUSION/PRAYER FOR RELIEF

Based on the rules and evidence stated above, it is respectfully prayed before this
Honorable Chamber to adjudge and declare that the charges against General Bilbo Baggins be
confirmed.

RESPECTFULLY SUBMITTED,

Counsel for the Prosecution

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