DEFENSE

THE CASE OF PROSECUTOR VS GENERAL ARTHUR REED

Before the International Criminal Court at The Hague





November 2013
2

TABLE OF CONTENTS

TABLE OF CONTENTS.............................................................................................. 2
INDEX OF AUTHORITIES ....................................................................................... 4
STATEMENT OF FACTS ........................................................................................... 5
SUMMARY OF PLEADINGS .................................................................................... 8
I. General Reed is not guilty of excessive incidental death, injury or damage
with respect to artillery attacks and air strikes in Kebia. .................................... 8
II. General Reed is not guilty of attacking protected objects with respect to the
attack against the Municipal Hospital in Kiesh. .................................................. 8
III. General Reed is not guilty of torture or inhuman treatment with respect
to Westwood Prison detainees............................................................................. 8
IV. There was no armed conflict, whether international or non-international.
9
PLEADINGS AND AUTHORITIES ....................................................................... 10
I. GENERAL REED IS NOT GUILTY OF EXCESSIVE INCIDENTAL
DEATH, INJURY OR DAMAGE WITH RESPECT TO ARTILLERY
ATTACKS AND AIR STRIKES IN KIESH. ............................................... 10
A. There was no attack within the contemplation of international
humanitarian law ....................................................................................... 10
B. Damage caused was not excessive. ........................................................ 11
3

C. General Reed is not individually criminally responsible. ...................... 12
II. GENERAL REED IS NOT GUILTY OF ATTACKING
PROTECTED OBJECTS WITH RESPECT TO THE ATTACK
AGAINST THE MUNICIPAL HOSPITAL IN KIESH. ............................. 13
A. There was no attack................................................................................ 13
B. Municipal Hospital was not a protected object. .................................... 13
C. General Reed did not order, solicit or induce an attack against protected
objects. ........................................................................................................... 14
III. GENERAL REED IS NOT GUILTY OF TORTURE OR
INHUMAN TREATMENT WITH RESPECT TO WESTWOOD PRISON
DETAINEES. ................................................................................................... 15
A. No suffering was intentionally inflicted. ................................................ 15
B. Solitary confinement and artificial feeding were not for prohibited
purposes. ........................................................................................................ 15
C. Detainees were not entitled to protection. ............................................. 16
D. General Reed had no superior responsibility. ....................................... 17
IV. ABSENCE OF AN ARMED CONFLICT, WHETHER
INTERNATIONAL OR NON-INTERNATIONAL. ................................... 18
PRAYER ........................................................................................................................ 20


4

INDEX OF AUTHORITIES


5

STATEMENT OF FACTS

Alphon was once a constituent republic of the Federal Republic of Citrea
(FRC) until the latters disintegration in 1990. It became an independent
developed state with enormous natural resources and successful high-tech
industry. The population of Alphon is composed of two ethnic groups,
Alphonians and Bethuisians, the latter being found mainly in the province of
Kebia. Kebia, situated in the south eastern outskirts of Alphon, borders Bethuis.

Unlike Alphon, Bethuis is merely emerging as an economic power. It later
began to engage in international trade and several Bethuisians also created
businesses in the other two former FRC states. Its undiversified population is
composed of Bethuisians who share similar language and culture with Bethuisians
in Kebia. It even considered Kebia as a lost province and provided for its
assistance since late 1990s.

In 2007, vast urie deposits were found in Kebia. Urie is an essential
substance for high-tech industries maintained by Alphon. With this discovery,
however, the Alphonian government grew even less popular among the Kebian
Bethuisians. In 2008, Neil Bing, a former member of the Alphonian Armed
Forces (AAF) and leader of the Bethuisian Peoples Movement (BPM) stressed
their opposition to the possible exploitation of Alphon over such deposits.

With the formation of the paramilitary group Democratic Kebian Front
(DKF) and the covert support of the Bethuisian government, several protests were
organized against the Alphonian government. The activities were met with an
immediate restraint from the latter.

6

Tensions escalated thereafter. Kebia was then placed under state of
emergency and AAF units, headed by General Arthur Reed, were promptly
discharged in the area. As an additional emergency measure, military
commanders were allowed to arrest and detain suspected security threats with
judicial remedy. Bethuis strengthened its military presence on its borders and on
Kebia. Later, majority of Kebia was placed under control of the DKF and PAB,
which Alphon disapproved.

Since July 2008, several AAF soldiers were compromised by successive
bombings. General Reed condemned said terrorist attacks and ordered the arrest
and detention of some suspected terrorists in Westwood Prison.

In December 2008, Operation Thunderstorm was approved by the
Alphonian government to immediately recapture power over Kebia.

On several dates in July 2009, artillery attacks and air strikes were
performed to paralyze the operations of DKF and PAB. AAF main force
successfully took control of Kiesh as a result.

In 29 July 2009, AAF combed the Rosemount District of Kiesh. They
chanced upon an encounter initiated by some Bethuisian soldiers at the Municipal
Hospital. Several enemy soldiers and guards were injured and four (4) dead PAB
soldiers were found dead in the Kebia Military College. Twenty-five (25) people
were arrested and ordered to be detained in Westwood Prison.

Westwood Prison was under the direct supervision of Warden Jackson
Wall. Professor Thomas Mange, an open supporter for the incorporation of Kebia
to Bethuis and a suspected terrorist, was arrested after the declaration of the state
7

of emergency and was placed under solitary confinement. He demanded
immediate release by venturing into a hunger strike. Several detainees were
pressured to follow his ignoble example. Wall undertook to force feed the hunger
strikers to avoid major health risks and damage.

President Arrow failed to be re-elected in the November 2009 Election.
On 20 December 2009, Alphon and Bethuis entered into a ceasefire agreement
and are negotiating the future of Kebia.

On 20 February 2010, General Reed was indicted by the Prosecutor of the
International Criminal Court (ICC). He was surrendered by the new Alphonian
government despite his lack of knowledge and participation in the alleged crimes
committed.




8

SUMMARY OF PLEADINGS


I. General Reed is not guilty of excessive incidental death, injury or damage
with respect to artillery attacks and air strikes in Kebia.

Attack was not in violation of international humanitarian law. It was for a
legitimate military advantage and collateral damage caused was not
disproportionate thereto. General Reed cannot be individually responsible for lack
of direct and actual participation with criminal intent and knowledge.


II. General Reed is not guilty of attacking protected objects with respect to
the attack against the Municipal Hospital in Kiesh.

No attack as contemplated and prohibited in the Geneva Conventions was
carried out. Assuming arguendo that there was an attack, it was defensive and
incidental to initiated assault by Ventures guards. Moreso, the Municipal Hospital
was not a protected object. Finally, General Reed cannot be held liable as he did
not order or instigate any crime to be committed.


III. General Reed is not guilty of torture or inhuman treatment with respect to
Westwood Prison detainees.

No severe physical or mental suffering was intentionally inflicted
detainees in violation of international humanitarian law. Solitary confinement and
artificial feeding were not for any prohibited purpose. At any rate, detainees were
9

not prisoners of war entitled to protection under the Geneva Conventions. Finally,
General Reed had no superior responsibility.


IV. There was no armed conflict, whether international or non-international.

The events that led to the filing of the foregoing case do not constitute an
armed conflict under international humanitarian law. They were mere internal
disturbances of isolated violence. Assuming that there was an armed conflict, it
was neither international nor internationalized.
10

PLEADINGS AND AUTHORITIES


A person shall be criminally liable for a war crime only if the material
elements are committed with intent and knowledge.
1
Criminal liability of an
accused should be proved beyond reasonable doubt by the Prosecution.
2

Otherwise, as in this case, the formidable presumption of his innocence should
stand.


I. GENERAL REED IS NOT GUILTY OF EXCESSIVE
INCIDENTAL DEATH, INJURY OR DAMAGE WITH
RESPECT TO ARTILLERY ATTACKS AND AIR STRIKES IN
KIESH.

A. There was no attack within the contemplation of international
humanitarian law.

Only indiscriminate attacks are forbidden.
3
To be outside of this
contemplation, concrete and direct military advantage, foreseeable at a relevant
time, is required
4
but should be judged as the circumstances appear to the

1
Art 30, ICC Statute.

2
Art 66, Ibid.

3
Art 8(2)(b)(iv), Ibid.; Art 51 & 85, AP I.

4
ICC Elements of Crimes.

11

commander.
5
Operation Thunderstorm was not an indiscriminate attack.
6
It was
specifically directed against enemy forces command and communication centre,
BAS factory producing explosives, army barracks and Colonel Bings expected
location.
7
These were objects of military importance to the enemies.
8
Means
employed in the operation were likewise not disproportionate to the objective.
9
In
fact, prior detailed deliberations on legitimate targets and proportionality, as well
as subsequent reconnaissance of targets,
10
showed sufficient preparation in the
operation.
11


B. Damage caused was not excessive.

Collateral damage is not altogether proscribed.
12
As no consensus or
provision of Additional Protocol I define excessiveness, such should be viewed
in light of the circumstances.
13
In fact, value judgment based on available specific

5
Threr, p 80 on Rendulic Rule.

6
Rule 12, Customary IHL.

7
Para 16 in relation to 21, Compromis.

8
ICC Elements of Crimes states that it remains as such though not temporarily or
geographically related to the military advantage.

9
Para 18-20, Ibid.; Pictet & Pilloud, 1987.

10
Para 21-23, Ibid.

11
Drmann, p 382.

12
Practice relating to Rule 14, ICRC; Marti Trial Judgment, para 69.

13
Martin, et. al., p 536.

12

information is allowed.
14
Mere excess in number of civilian vis--vis military
casualties is also not a rightful measure.
15

The resulting damage of Operation Thunderstorm was not excessive and
disproportionate to the military advantage anticipated. Firstly, regaining control
over Kebia was certainly a concrete and direct military advantage and was
expectedly a substantial and short-term aim.
16
In relation, previous specific
information of civilian migration from, and immobilization in, Kebia showed that
expected damage is low.
17
Also, it cannot be said that mere death of fifty (50)
persons alone outweighed the immediate necessity of gaining control over the
area.
18


C. General Reed is not individually criminally responsible.

Individual criminal responsibility requires physical commission of
material elements of a war crime, individually or with others.
19
Artillery attacks
and air strikes did not amount to war crimes and were without the required mens
rea element.
20
At any rate, the attacks were carried out by AAF units and without

14
ICC Elements of Crimes; Gali Trial Judgment, para 58-59.

15


16
Para 16, Compromis; Rule 14, Customary IHL; Sandoz, et. al., 1987.

17
Para 20, Ibid.

18
Para 25 & 27, Ibid.

19
Art 25(3)(a), ICC Statute.

20
Criminal intent and knowledge, Art 30, ICC Statute, similar to those required in
Art 7, ICTY Statute; Gallmetzer & Klamberg, p 64.

13

direct and physical participation of General Reed.
21
He cannot thus be said to be
have committed the alleged war crime.


II. GENERAL REED IS NOT GUILTY OF ATTACKING
PROTECTED OBJECTS WITH RESPECT TO THE ATTACK
AGAINST THE MUNICIPAL HOSPITAL IN KIESH.

A. There was no attack.

An attack is an act of violence against the adversary.
22
The mere combing
or thoroughly searching Rosemount District to eliminate potential threats cannot
be likened to an attack.
23
Also, any confrontation thereafter was not intended to
attacking the Municipal Hospital and merely incidental to the initiated assault by
Ventures guards.
24


B. Municipal Hospital was not a protected object.

Protection under the Geneva Conventions is extended only to civilian
objects.
25
Rosemount Municipal Hospital was a military object not covered by

21
Para 23, Compromis.

22
Art 49, AP I.

23
Para 33, Compromis.

24
Para 34, Ibid.

25
Art 52, AP I.

14

such protection.
26
It posed potential threat to Alphons national security and its
neutralization was relevant to the overall military advantage anticipated.
27
It was
also being used as a military observation post of Ventures guards and others
wearing military uniforms, and shield from military action.
28
Thus, any
protected status, if any, of such place was lost as it was used to commit acts
harmful to the AAF soldiers.
29


C. General Reed did not order, solicit or induce an attack against protected
objects.

For criminal liability to attach, ones authority must be used to instruct or
instigate another to commit the war crime.
30
General Reed cannot be held liable as
he did not order or instigate any crime. His order merely had for its object
searching and eliminating potential threats which a legitimate military operation,
not a crime.
31
In truth, General Reed lacked intent and malice as actually shown
later when he ordered the wounded to be treated.
32



26
Art 8(2)(b)(ix), ICC Statute.

27
Sassli, et. al., p 4-5.

28
Para 16, Compromis; Ibid., p 17; Henckaerts & Doswald-Beck, p 97.

29
Para 34, Ibid; Art 21, GC I.

30
Blaski Trial Judgment, para 280; Akayesu Trial Judgment, para 483.

31
Para 33, Compromis.

32
Para 34, Ibid.

15

III. GENERAL REED IS NOT GUILTY OF TORTURE OR
INHUMAN TREATMENT WITH RESPECT TO WESTWOOD
PRISON DETAINEES.

A. No suffering was intentionally inflicted.

Torture and inhuman treatment require that physical or mental suffering be
intentionally inflicted.
33
There were no facts showing any suffering caused to
Professor Mange during his confinement.
34
Also, any suffering caused during the
administration of artificial feeding was merely trivial and unintentional.
35


B. Solitary confinement and artificial feeding were not for prohibited purposes.

The purpose requirement has been considered integral in the definition of
torture.
36


National security and prison management are not prohibited and are, in
fact, justifiable reasons for placing a prisoner under solitary confinement.
37

Professor Mange was a suspected terrorist and, given the terrorist climate in July

33
Art 8(2)(a)(ii), ICC Statute; ICC Elements of Crimes.

34
Para 38, Compromis.

35
Para 41, Ibid.

36
ICC Elements of Crimes; Krnojelac Trial Judgment, para 180.

37
Shalev, p 26.

16

2008, his solitary confinement was proper.
38
His leading the hunger strike also
showed his capacity to cause disruption of the order and discipline in Westwood
Prison.
39


Likewise, medical necessity and complex situation that impaired or
vitiated judgment of detainees justified artificial feeding during the prolonged
hunger strikes.
40
The significant deterioration of Professor Manges health
indicated an immediate medical emergency.
41
Participation by detainees was also
tainted with coercion and collective pressure produced by the terrorist climate
and presence of suspected terrorists at that time.
42
In such cases, physicians were
allowed to exercise judgment and to employ artificial feeding to prevent serious
damage to detainees.
43


C. Detainees were not entitled to protection.

A war crime must be committed against protected persons under the
Geneva Conventions.
44
Prisoners of war are indeed protected.
45
This category,

38
Para 15 in relation to 37, Compromis.

39
Para 38 and 39, Ibid.

40
Nevmerzhitsky v Ukraine, 2005.

41
Para 40, Compromis.

42
Para 45, Ibid.

43
Declaration of Tokyo; Declaration of Malta; World Medical Journal, 2006.

44
Blaskic Trial Judgment, para 74; Drmann, p 363.

45
Geneva Convention III.
17

however, only includes belligerents, partisans, members of armed forces, non-
members accompanying armed forces, crews of merchant maritime or civil
aircrafts, mass levies of an occupied area, or combatants.
46
Detainees affected
were those suspected of terrorism and security threats,
47
ordinary criminals
covered simply by the national law of Alphon, particularly the Emergency
Decree.
48


D. General Reed had no superior responsibility.

Superior responsibility requires knowledge, effective control and failure to
repress and prevent crimes committed.
49
Colonel Reed cannot be liable.

Firstly, no crime was committed; even if there was, no required specific
information
50
was provided General Reed for him to exercise punitive powers.
Secondly, Warden Jackson Wall was vested supervision over Westwood Prison
51

and the physicians answered to him, not to General Reed.
52
Finally, since he had


46
Art 4, GC III; Art 43 & 44, AP I; ICRC Commentary of 1960, p 45-70.

47
Para 15 & 39, Compromis.

48
Para 10, Ibid.

49
Art 28, ICC Statute.

50
Delalic Trial Judgment, para 393.

51
Para 15, Compromis.

52
Para 40-41, Ibid.

18

no knowledge and effective control, Colonel Reed cannot be said to have failed to
exercise his powers to prevent or repress the alleged acts.


IV. ABSENCE OF AN ARMED CONFLICT, WHETHER
INTERNATIONAL OR NON-INTERNATIONAL.

War crimes apply only to international armed conflicts.
53
However, not
every act of violence is an armed conflict within the jurisdiction of the Court. The
events that led to the filing of this case lacked the required intensity and
protractedness to qualify as an armed conflict not of an international character,
much less an international one.
54
The level of organization of the dissident forces
was also insufficient for the existence of an armed conflict to be accepted.
55


Incidents in July 2008 leading to the arrest of several persons were mere
internal disturbances of isolated violence.
56
Hence, any acts connected to the
arrest and detention of such persons did not occur in the context of an armed
conflict.
57
It also cannot be said that subsequent events led to an armed conflict,
for the acts of violence were simply sporadic and intermittent. No actual

53
Art 8(a) & (b), ICC Statute; Tadic Appeals Judgment, para 80.

54
Art 8(2)(f), ICC Statute.

55
Art 1, AP II.

56
Para 15, Compromis.

57
Sassli, et. al., p 24.

19

encounter between AAF soldiers and the opposite side were revealed until July
2009 at the Municipal Hospital.
58


Assuming arguendo that there was an armed conflict, it was not
international in character. The conflict was not between States.
59
The disturbances
were only between internal forces within Alphon. Any intervention by Bethuis did
not effectively internationalized the conflict for lack of effective command and
control to say that the dissident forces were acting as agents of Bethuis.
60
Also,
though the internal violence was politically motivated, it was equally
economically motivated so it precludes a case of self-determination.
61
Thus, as
internationality of the armed conflict is essentially an element of war crimes
charged, the absence thereof indicates that the prosecution should fail.

58
Para 34, Compromis.

59
Common Art 2.

60
Tadi Trial Judgment; Stewart, p 324.

61
Art 1(4), AP I.
20

PRAYER

For the foregoing reasons, the defense MOST RESPECTFULLY PRAYS
this Honorable Court to EXONERATE GENERAL ARTHUR REED of ALL the
charges against him and to order his IMMEDIATE RELEASE.


Respectfully submitted,

FOR THE DEFENSE


21

FULL CITATION OF CASES AND PUBLICATIONS (laws not included):

Prosecutor v Milorad Krnojelac, Case No. IT-97-25-T, Judgment, 15
March 2002 (Krnojelac Trial Judgment).
Nevmerzhitsky v Ukraine, Application No. 54825/00, Judgment, 5 April
2003.
Prosecutor v Zejnil Delalic, Zdravko Mucic (aka Pavo), Hazim Delic
and Esad Landao (aka Zenga), Case No. IT-96-21-T, Judgment, 16
November 1998 (Delalic Trial Judgment).
Prosecutor v Dusko Tadic (aka Dule), Case No. IT-94-1-A, Judgment, 7
May 1997 (Tadic Appeals Judgment).
Prosecutor v Tihomir Blaskic, Case No. IT-95-14-T, Judgment, 3 March
2000 (Blaskic Trial Judgment).
Prosecutor v Milan Marti, Case No. IT-95-11-T, Judgment, 12 June 2007
(Marti Trial Judgment).
Prosecutor vs Stanislav Gali, Case No. IT-98-29-T, Judgment, 5
December 2003 (Gali Trial Judgment).
Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4-T, Judgment, 2
September 1998 (Akayesu Trial Judgment).
S. Shalev. A Sourcebook on Solitary Confinement, October 2008.
K. Drmann. War Crimes under the Rome Statute of the ICC, Max Planck
UNYB 7, 2003.
D. Threr. International Humanitarian Law: Theory, Practice, Context
(The Pocketbooks of the Hague Academy of International Law). Martinus
Nijhoff, Leiden. 2010.
22

Y. Sandoz, Ch. Swinarski & B. Zimmermann (eds.), Commentary on the
Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949. Geneva, ICRC/Martinus Nijhoff. 1987.
C. Pilloud & J. Pictet. Article 51: Protection of the Civilian Population
in Y. Sandoz, Ch. Swinarski & B. Zimmermann (eds.), Commentary on
the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949. Geneva, ICRC/Martinus Nijhoff. 1987.
F. F. Martin, S.Schnably, R. Wilson, J. Simon & M. Tushnet. International
Human Rights and Humanitarian Law: Treaties, Cases, and Analysis.
Cambridge University Press. 2006.
World Medical Journal, Vol. 52, No. 2. June 2006.
JM. Henckaerts & L. Doswald-Beck. Customary International
Humanitarian Law, Vol. I: Rules. Cambridge, ICRC. 2005.
M. Sassli, A. Bouvier & A. Quintin. How Does Law Protect in War?
Cases, Documents and Teaching Materials on Contemporary Practice in
International Humanitarian Law in Outline of International Humanitarian
Law, Vol. I, 3
rd
Edition. ICRC.
J. G. Stewart. Towards a Single Definition of Armed Conflict in
International Humanitarian Law: A Critique of Internationalized Armed
Conflict in International Review of the Red Cross, No. 850. 2003.