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STATEMENT OF FACTS

The Political Tension between Temeria and Lyria

Greater Temeria was a territory of the colonial power of Redania, and was partitioned,
resulting from its independence, into two states: the Republic of Temeria and the Republic of
Lyria. There are two groups of people in the former territory: Temeri, who are the predominant
group in Temeria, and Rennish, the minority group in Temeria and the majority in the Lyrian
population.

The Rennish Liberation Front (RLF) is a movement with proponents accross Greater
Temeria who were actively participating in the struggle for independence prior to 1981. The group
later disbanded following the independence.

Tensions existed between Temeria and Lyria especially on the Easter border. The two
states have been invoking their claims on the historical city of Velen.. The original agreement
containing the assignment of Velen by Redania was destroyed in an explosion caused by anti-
partition demonstrators.

The Launching of Attack by the RLF

In 2010, Elsa Letha was elected President of Temeria on her platform of protectionism and
border security. From 2010 to 2011, the cost of foreign workers visa increased affecting Lyrians
working in Temeria, the border security increased and the visas for Rennish people were restricted
making it difficult for them to depart Temeria.

On 2 January 2012, Temeria began building a wall on its side of the border and Lyria
declared this as an act of aggression by Temeria. In 27 April 2012, the construction was halted by
artillery fire. The barricade was damaged and fifty-nine people were killed with casualties
consisting mainly members of the Temerian Armed Forces (TAF) and the Temerian Police Force.
The RLF claimed responsibility for the attack.

Over the course of the next week, casualties from the violence between the protesters,
RLF and law enforcement climbed to the hundreds. In the following months, frequent raids on
the wall were carried out by armed men and women wearing blue armbands emblazoned with
white stars. On 4 May 2012, the RLF attacked the TAF barracks with heavy weapons forcing
Temerian forces to withdraw from Velen. RLF developed a system of seniority and recruitment
of new members was highly successful. By 2 July 2012, RLF declared the an area including
Velen as “liberated zone”.

The Siege of Velen

Following the resignation of Red Geralt from the Lyrian parliament on 2 November 2012,
he declared on 12 December in his YouTube channel that he is the new political leader of RLF.

By September 2013, TAF regained control over nearly half of the “liberated zone” and in
October 2013, TAF began successfully intercepting RLF’s supply chain to the city from the North.

On 15 October, Colonel Rivia, the TAF area commander, issued directive 66 to all TAF
units in Velen to “take all necessary measure to cut off the RLF’s means of fighting” On 16
October, TAF dropped ten-thousand leaflets over Velen and sent text messages informing residents
that a forty-eight-hour evacuation period had begun.

On 19 October, TAF Unit 50 sealed the remaining exit with artillery fire. After attempts
by RLF members to go over the wall by night, a “shoot on sight” policy was initiated by TAf for
anyone seen on the wall.

There were reports of starvation by November. On 2 December, part of the water mains
and sewage system collapsed. Over the next months, there were report of cholera outbreak. On 25
December, TAF evacuated civilians and over one-thousand-five-hundred mortal remains from the
city. The evacuation was marred by exchange of fire between RLF and TAF as RLF members
were attemting to enter the city dressed as humanitarian workers and carrying supplies for their
comrades.

The Convoy Incident

Facing international pressure to allow humanitarian aid to enter Termeria, President Letha
on 3 February 2014 announced that the International Committee of the Red Cross (ICRC) had the
agreement of all parties to enter Velen on 5 February to provide the first distribution of aid to the
Eastern quarter of Velen. Red Geralt broadcasted on his YouTube channel on 4 February 2014
welcoming also the assistance of ICRC in Velen and expressed his wish to be present in the
distribution of aid to the civilians.
On 4 February, TAF received intelligence that Red Geralt may have crossed the border.
Col. Rivia issued an order to all TAF Units to “fire at will” if they had eyes on Red Geralt.

At 06.00 on 5 February, a convoy of eight land cruisers carrying humanitarian aid and
personnel passed through the TAF Command Centre. The delegates confirmed that the expected
delivery time to Velen was shortly after 07.00. The Red Cross emblem was displayed prominently
on the vehicle and all personnel wore vests displaying the emblem. At 06.45, the convoy radioed
informing Col. Rivia that the convoy was entering via the eastern gate as planned. As the convoy
penetrated further into the Quarter, radio contact was lost.

The convoy passed RLF checkpoint without incident. However, upon reaching a flooded
section of the road, the convoy attempted to continue by fording the filthy water. The lead two
vehicle became heavily bogged in the water up to the window line however, the convoy
successfully extracted personnel but were unable to pull the vehicles from the water. Even mired
with mud and oil slick, a decision was made to attempt delivery via an alternative route. TAF
signals operator informed Col. Rivia of the attempted communication from the convoy. Reporting
the only clear word “water”.

At 06.50, TAF Unit 52 was successfully ram-raided by a small truck carrying RLF
members as it forced through its ways to the checkpoint. Lieutenant Metz contacted the Command
Centre saying that Unit 52 was now on high alert for further attacks.

At 07.45, Lt. Metz contacted the Command Centre reporting the approach of unidentified
vehicles in the Southern Quarter of Velen, close to the Eastern Quarter border. The communication
was patchy. Unit 52 fired on the convoy, wounding eight humanitarian personnel. All further
assistance to Velen was delayed and the international community strongly condemned the incident.
On 23 February 2014, Col. Rivia withdrew Unit 52 from Velen as a disciplinary measure.

The End of Hostilities

On 1 March 2014, a cease fire agreement was signed by President Letha and Red Geralt.
Humanitarian assistance was finally able to reach Velen.

As a key component of the peace negotiations, on 15 July 2016, Col. Rivia was delivered
into the custody of International Criminal Court.
PRELIMINARY MATTERS

Col. Rivia shall face the Pre-Trial Chamber of the ICC for the Confirmation of Charges

against him, in which case, the “Prosecution [shall] support each charge with sufficient evidence

to establish substantial grounds to believe that he committed the crime charged” 1. To meet this

evidentiary threshold, the Prosecution must “offer concrete and tangible proof demonstrating a

clear line of reasoning underpinning specific allegations”.2 The chamber must be “thoroughly

satisfied that the Prosecutor’s allegations are sufficiently strong to commit the person to trial.” 3

The prosecution is tasked to prove all the contextual and specific elements of the crimes charged4

under the Rome Statute.

Any ambiguities shall be interpreted in favor of the person being prosecuted, and the

definition of crimes charged shall be strictly construed.5

I. THE ARMED CONFLICT IN VELEN IS NON-INTERNATIONAL IN

CHARACTER

A. LYRIA DID NOT PARTICIPATE IN THE ARMED CONFLICT

The Lyrian Government denied any link with RLF and any knowledge

about its operations inside its territory.6

1
STATUTE, Art 61(5).
2
ICC, Lubanga Decision on the Confirmation of Charges, ¶19.
3
Ibid.
4
ICC, Al Bashir Arrest, ¶52.
5
STATUTE, Art. 22(2).
6
Record, ¶14
A NIAC may become international if (i) another State intervenes in the

conflict through its troops or if (ii) some of the participants in the internal armed

conflict act on behalf of that other State.7 To establish indirect participation of

Lyria, “the Chamber must analyse the degree of control by the State over one of the

armed groups participating in the hostilities”8 which is satisfied when a State “has

a role in organizing, co-ordinating or planning the military actions of the military

group, in addition to financing, training and equipping or providing operational

support to that group.”

There was a failure to establish that Lyria has intervened or has any degree

of control over the RLF.

B. LYRIA DID NOT SATISFY THE OVER-ALL CONTROL TEST

For a conflict to be internationalized, the ICTY in Blaskic9 confirmed that the

intervention should have ‘an impact on the conduct of the conflict’.

The statement of the apprehended Lyrian intelligence agent cannot be given

credence because of the pressure of pointing accountability to members of RLF

notwithstanding the fact that Red Geralt is the son of a former RLF leader and currently

a member of the parliament.

Red Geralt was already not a member of the Lyrian Parliament when he claimed

leadership of the RLF therefore, his acts thereafter canot be attributed to Lyria. The

LDF is an independent armed group and a sufficient proof is not shown in the record

that it provided aid to the RLF.

7
ICTY, Tadić Appeal Judgment, ¶84
8
ICC, Katanga and Chui Appeal Judgment, ¶85
9
ICTY, Blaškić Trial Judgement, ¶69
Had it been true that Lyria is supervising RLF, TAF would not have been able

to regain nearly half of the liberated zone considering the strong position of RLF in the

area.

MAIN PLEADING

I. FIRST CHARGE: COLONEL RIVIA IS NOT LIABLE FOR THE WAR CRIME

OF EXCESSIVE INCIDENTAL DEATH, INJURY, OR DAMAGE UNDER

ARTICLE 8(2)(b)(iv)

A. THE CRIME OF INCIDENTAL DEATH, INJURY OR DAMAGE WAS NOT

COMMITTED

For the said crime to be committed, five (5) elements must be satisfied: the

perpetrator launched an attack; the attack would cause incidental death or injury to civilians

or damage to civilian objects or widespread, long-term and severe damage to the natural

environment and that such death, injury or damage would be of such an extent as to be

clearly excessive in relation to the concrete and direct overall military advantage

anticipated; the perpetrator knew of the result of such attack; the conduct is in the context

of and associated with an international armed conflict; the perpetrator was aware of the

existence of an armed conflict.10

In this case, Col. Rivia bears no criminal responsibility under the Rome Statute for the

crime of incidental death, injury, or damage because there was a failure to meet the

threshold test of Article 8(2)(b) that (a) the perpetrator intentionally directed an attack, (b)

the perpetrator knew of the result of such attack, (c) the conduct took place in the context

10
ELEMENTS, p.19
of and was associated with an international armed conflict, and (d) the perpetrator was

aware of factual circumstances that established the existence of an armed conflict.

1. Col. Rivia did not intentionally direct the attack hence he did not know what may be

the result of such attack

Before exchanges of fire took place between TAF and RLF, 11 Col. Rivia

ordered all necessary measures including the evacuation of the people to remove

civilians from the war zone.12 This is indicative of Col. Rivia’s concern of limiting

collateral and incidental damage. While it is true that TAF Unit 50 used artillery

fire to seal the remaining exit,13 this is in consonance with the protection of civilians

for their evacuation and as defense in case RLF attempts to disturb the evacuation.

The resulting damage to the water mains and sewage systems are highly regarded

for the defense of Temeria’s territory against invasion and as requirement by

imperative military necessity.14

The incident in the Southern Quarter of Velen was not intentionally directed

by Col. Rivia. Aside from the broadcast of Red Geralt expressing his wish to be

present in the distribution of aid,15 an intelligence report was also received by TAF

that Red Geralt may have crossed the border.16 This can be further evidenced by

the successful ram-raiding of a small truck carrying RLF members forcing its way

11
Record, ¶23
12
Additional Protocol II, Art 13, par. 1
13
Record, ¶21
14
ICTY, Hadžihasanović and Kubura Trial Judgement 15 March 2006, par. 45
15
Record, ¶27
16
Record, ¶28
through the Souther Quarter checkpoint.17 It is clear from the Record that

communication was patchy and Col. Rivia continuously verified if the convoy were

members of the RLF.18 Two inferences can be made from the statement of Lt. Metz:

(1) Red as in the Red Cross or (2) Red as in Red Geralt. Since the vehicles have

been mired, it is probable that Lt. Metz have inferred the latter and have directed

what is believed to be, basing from factual circumstance, a legitimate military

attack.

It is not only through distinctive emblems that medical units19 may be

recognized but also through distinctive signals.20 Considering that the vehicles

which were covered in mud carry medical supplies and personnel, they can be

considered as medical units. They should have been more visible through a

distinctive signal had they employed this as identification.21 The attack was a

legitimate military concern since the statement and the intelligence impose threat

to Temeria. It should have been the ICRC convoy which exercised due diligence as

to its identification and not Temeria as to its preventive measures.

2. There was no international armed conflict hence the attack was not in the context

and associated thereof

Having been established that the overall control test was not satisfied, it is

sufficient to establish that the armed conflict failed to be internationalized.

17
Record, ¶32
18
Record, ¶34
19
Additional Protocol I, Art 8, par. e
20
Additional Protocol I, Art 8, par. m
21
Additional Protocol I, Annex I, Chapter III, Art 6, par. 3
The RLF cannot be considered a de facto State organ because “it is

necessary to ascertain whether specific instructions concerning the commission of

that particular act had been issued by that State to the individual or group in

question; alternatively, it must be established whether the unlawful act had been

publicly endorsed or approved ex post facto by the State at issue.22

3. There was no armed conflict between Temeria and Lyria

The unrest was brought by the building of the wall by Temeria.23 However,

there was insufficient proof to hold Lyria accountable for the April 27 attack.24

An armed conflict is said to exist “whenever there is a resort to armed forces

between Sates or protracted armed violence between governmental authorities and

organized armed groups or between such groups within a State.”25 The armed

conflict was between Temeria, a state, and RLF, a rebel group.

B. COLONEL RIVIA IS NOT CRIMINALLY LIABLE INDIVIDUALLY UNDER

ARTICLE 25(3)(b)

Article 25(3)(b) has three key elements to prove the commission of a crime: (1) ordering,

(2) soliciting, (3) inducing.26 There is failure to establish that Col. Rivia ordered, solicit or induced

Lt. Metz to fire at the convoy leading to the cutting off of supplies.

In order to make a finding on the individual criminal responsibility of ordering, these

elements must be fulfilled: (a) the person is in a position of authority, (b) the person instructs

another person in any form to either: (i) commit a crime which in fact occurs or is attempted or (ii)

22
ICTY, Tadic Appeal Judgement, par 137
23
Record, ¶10
24
Record, ¶11
25
ICTY, Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, par 70
26
Rome Statute, p. 14
perform an act or omission in the execution of which a crime is carried out, (c) the order had a

direct effect on the commission or attempted commission of the crime, and (d) the person is at

least aware that the crime will be committed in the ordinary course of events as a consequence of

the execution or implementation of the order.27

Col. Rivia is in a position of authority considering that he is the TAF area commander28

and he imposes disciplinary measures.29 However, he failed to fulfill the other elements. He did

not order the commission of any crime against the civilian population but only ordered the

necessary measures to cut off the RLF’s means of fighting which is a legitimate military order.

Solicitation can be characterized when the perpetrator asks or urges the physical perpetrator

to commit the criminal act. It does not presuppose that the accessory is in a certain relationship

with the physical perpetrator of the offence(s).30 Inducing, on the other hand, means that the

accessorial perpetrator exerts influence over the physical perpetrator, either by strong reasoning,

persuasion or conduct implying the prompting of the commission of the offence.31 There is no

need to establish that the ‘instigator’ and the physical perpetrator has a superior-subordinate

relationship.32

As defense and protection on the evacuation, the TAF exchanged fire with the RLF.33 There

were also mortal remains being evacuated from the city. The deaths and the attacks should not be

charged as ‘soliciting’ nor ‘inducing’ the commission of criminal offences. Rather, they should be

27
“Decision on the Prosecutor’s Application under Article 58”, 13 July 2012, ICC-01/0401/12-1-
Red, para. 63
28
Record, ¶20
29
Record, ¶36
30
ICC, Situation in the Central African Republic, 19 October 2016, ICC-01/05-01/13, par. 75
31
ICC, Situation in the Central African Republic, 19 October 2016, ICC-01/05-01/13, par. 76
32
ICC, Situation in the Central African Republic, 19 October 2016, ICC-01/05-01/13, par. 77
33
Record, ¶23
charged as incidental damage in the diligent performance of territorial defense. As a precautionary

measure in an attack, it must always be considered if the attack may cause incidental loss or injury

to civilian life or damage to civilian objects.34 In the case at hand, the principle of proportionality

was strictly observed wherein the incidental damage was not excessive in relation to the direct and

concrete military advantage anticipated.35

34
Additional Protocol I, Art 57, par. 2(a)
35
ICRC, The Law of Armed Conflict, Lesson 3, p. 3