STATEMENT OF FACTS

Alphon and Bethuis, together with Citrea, once composed the Federal Republic of Citrea
(FRC) until they became separate independent states in 1990. Alphon is composed of 70%
Alphonians and the rest are ethnic Bethuisians, comprising 80% of the population of the
province of Kebia. The said province has been lagging behind in terms of economic growth
while the rest of Alphon has been enjoying unprecedented economic growth due to its successful
high-tech industry. Such disparity, which is attributed to Kebias remote location and preferential
treatment to Alphonians, led to the resentment of ethnic Bethuisians towards the Alphonian
government.
In 2007, vast deposits of a rare metal important in the high-tech industry called urie
were found in Kebia. Because of the discrimination of the Alphonian government, ethnic
Bethuisians in Kebia did not expect to benefit from the discovery. This deepened their
resentment, and furthered the clamor to reunite with Bethuis.
Neil Bing established the Bethuisian Peoples Movement (BPM), and its paramilitary
arm, the Democratic Kebian Front (DKF). Bing had close ties with the Bethuisian government
and asserted that Kebias future belonged with their Bethuisian brothers. Thus, with the help of
Bethuis, he was able to hire Ventures to train the members of the DKF with military skills.
Bethuis even equipped the DKF with weapons.
In June 2008, the BPM initiated successive mass demonstrations which were quelled by
the Alphonian government. The latter condemned the irredentism and misplaced intervention of
the Bethuisian government. In response, the Alphonian government declared Kebia under a state
of emergency and dispatched AAF units under the command of General Arthur Reed. On the
other hand, Bethuis strengthened its military presence ready to actively support the DKF.
In July 2008, DKF units seized local government buildings in Kebia and attacked military
compounds in the eastern part of the province and in Kiesh. Confrontations between AAF and
DKF eventually led to the deployment of 2,000 Bethuisian troops (PAB), led by Col. Ian Rose.
The combined forces of DKF and PAB took over Kiesh and the eastern part of Kebia. Thereafter,
another 2000 troops were stationed by PAB in Kiesh. Meanwhile, car bombings were rampant in

AAF-controlled Kebia resulting in numerous deaths and injuries among AAF soldiers. Later on,
the PAB also directed attacks against Rica, an Alphonian populated town in Kebia. These
incidents were tagged as terrorist attacks, which prompted the arrest of suspected terrorists and
their detention in Westwood Prison. The prison had been placed under military control and under
the supervision of Jackson Wall, appointed by Reed.
To regain control over the eastern part of Kebia, the Alphonian government framed
Operation Thunderstorm, under the command of Reed. In a meeting, it was decided that artillery
attacks and air strikes would be used against the Bethuisians. Subsequently, Defense Minister
Tom Atom expressed his concern over civilian casualties but was unheeded by Reed.
In July 17, 2009, Reed ordered AAF to attack vigorously. Projectiles were fired against
Kiesh. Twelve artillery shells were launched into the privately-owned BAS factory, killing 15
workers and injuring 30 others. At the time of the attack, all the lights in the factory were still on,
indicating that there were still people inside.
Early the following day, two air strikes were directed at a five-storey residential building
in the Peace Garden. Most of the residents were still asleep at the time of the first attack.
Moreover, the residents did not bother to hide thinking that the drones were just for surveillance,
which they had been accustomed to. The missiles killed 35 people, majority of which were
building residents, injured 50 others, and severely damaged the apartment building.
After two days of vigorous attacks, Kiesh sustained extensive damage caused by artillery
shells landing hundreds of meters away from the target.
While retreating to the east, wounded PAB soldiers were brought to the Municipal
Hospital, at the entrance of which was a red crystal emblem. On the night of July 21, 2009, Reed
ordered a squad to be sent to the hospital area. Upon seeing the squad, a Ventures staff guarding
the hospital fired a few shots. The squad commander ordered his men to fire at the hospital from
all directions. According to reports, 35 people were killed. When the squad entered the hospital,
10 private security guards were found wounded and the squad took away with them 25 people,
including PAB and DKF members, Ventures guards and other patients. The hospital was severely
damaged and most medical facilities were destroyed. The international community strongly
condemned the attack.

In August 2009, AAF regained control over Kiesh but there were still strong resistance
from local Bethuisians.
Oppositions were actually manifested as early as 2007. In fact, Thomas Mange, a
professor at the University of Kebia delivered several speeches encouraging Bethuisians to
pursue their right to self-determination. As a consequence, he was arrested and detained in
Westwood Prison, together with his students. Mange was placed under solitary confinement for
four months. He went on a hunger strike to protest his detention. Other detainees eventually
followed. Due to international pressure, the Alphonian government ordered Reed to resolve the
situation. Accordingly, Wall wrote a letter addressed to Reed stressing that something needs to be
done. After consultation with Reeds staff, Mange was forcibly fed. Each feeding procedure
lasted for two hours each day. A 10 French tube with a diameter of 3.3mm was inserted in
Manges nose down to his stomach. It took several attempts to properly place the tube during
feeding sessions, which caused great pain to the subjects. To somehow alleviate such pain, he
was given sedatives. However, one of the drugs side effects was irreversible neurological
disorder. Other detainees were also subjected to the same procedure.
After 27 days of hunger strike, Professor Mange started taking liquid supplements while
some others continued to be forced fed. He was finally released on November 2009. A new
administration took over after the November 2009 elections and the new President expressed his
willingness to end the conflict and to enter into a compromise for the future of Kebia. On the
other hand, the Bethuisian government was pressed by the people to end the hostilities. In
December 2009, a ceasefire agreement was entered into by Alphon and Bethuis.

SUMMARY OF PLEADINGS

General Arthur Reed is criminally liable for the following war crimes under the ICC Statute
committed in the context of an internationalized non-international armed conflict of which he has
full knowledge:

First, Reed, through another, intentionally launched artillery attacks against the BAS Factory and
air strikes against Colonel Neil Bings apartment in a residential area. Such attacks caused
incidental death and injury to civilians, and damage to civilian objects which are clearly
excessive in relation to the concrete and direct overall military advantage, at that time, to shock,
disrupt, or disorient the Bethuisians. Thus, he is guilty of the war crime of excessive incidental
death, injury or damage;

Second, Reed, in reckless disregard of the reasonable consequences, ordered the attack against
the Municipal Hospital bearing the red crystal emblem and which is not a military objective.
Hence, he is guilty of the war crime of attacking protected objects; and

Lastly, Reed, having effective control over Jackson Wall and the Westwood Prison, failed to
prevent or to punish the acts of solitary confinement and force-feeding of the detainees. Such
acts caused severe physical or mental pain or suffering to protected persons. Therefore, he is
guilty of the war crime of inhuman treatment on the basis of superior responsibility.

PLEADINGS

I. THE WAR CRIMES WERE COMMITTED IN THE CONTEXT OF AN

INTERNATIONALIZED

NON-INTERNATIONAL

ARMED

CONFLICT,

AND

GENERAL REED WAS AWARE OF IT.

The criteria of intensity of the conflict and organization of the parties to the conflict are
used to distinguish an armed conflict from banditry, unorganized and short-lived insurrections, or
terrorist activities.1 Indicative factors of the intensity criterion include type of weapons used,
number of persons and type of forces, extent of material destruction, and the involvement of the
UN Security Council.2 On the other hand, factors indicating the organization criterion include
existence of a command structure, the fact that the group controls a certain territory, and the
ability of the group to gain access to weapons and military training.3
International armed conflict is defined as all cases of declared war or of any other armed
conflict which may arise between two or more High Contracting Parties. 4 Non-international
armed conflict is defined as that which takes place in the territory of a High-Contracting Party
between its armed forces and dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations.5 However, the Appeals Chamber in the
case of Tadic held that an internal armed conflict in a certain state may become internationalized
if another state intervenes in the conflict through its troops or some of the participants act on
behalf of another state.6

Tadic,Par.562,TJ

Haradinaj,Par.49,TJ

Supra,Par.60,TJ

GCI,Art.2

APII,Art.1

Tadic,Par.84

In this case, the clamor of ethnic Bethuisians for the independence of Kebia from Alphon
propelled the offensive attacks of DKF against the Alphonian Government. 7 Thus, the dispatch of
AAF units to maintain control over the situation. Confrontations began between DKF and AAF
where the DKF units were able to take over local government buildings and attacked military
compounds in Kiesh and the eastern part of Kebia. In the midst of the internal armed conflict,
Bethuis intervened by sending 2,000 PAB troops. Thus, DKF and PAB gained control over such
areas.8 In fact, the DKF was trained and armed through the support of Bethuis. 9 Consequently,
the Alphonian President condemned the act of Bethuis and seized the UN Security Council. 10 The
hostilities continued for the next six months with Bethuis sending another 2,000 PAB troops.11
These facts were clear indications of the existence of an internationalized noninternational armed conflict, of which Reed was aware of. He was appointed to be in-charge of
the Operation Thunderstorm, to regain control over Kiesh and ultimately end the war.12 In
accordance thereto, he approved a list of targets including the command center of DKF and
PAB.13

II. GENERAL REED IS GUILTY OF THE WAR CRIME OF EXCESSIVE INCIDENTAL

DEATH, INJURY, OR DAMAGE.
An attack is defined as an act of violence against the adversary, whether in offense or
defense.14 In the conduct of military operations during armed conflicts, persons actively taking
part in the hostilities must be distinguished from the civilian population. 15 Civilians enjoy general

Compromis,Par.11

Compromis,Par.11

Compromis,Par.9

10

Compromis,Par.12

11

Compromis,Par.14

12

Compromis,Par.16

13

Compromis,Par.21

14

API,Art.49(1))

15

Kordic,Par.52,AJ

protection against dangers arising from military operations.16 They are protected against attacks
so long as they do not take direct part in the hostilities. The presence of individual combatants
within the population attacked does not necessarily change the fact that the ultimate character of
the population remains, for legal purposes, a civilian one.17 If the population is indeed a civilian
population, then the presence of combatants within that population does not change that
characterization.
Likewise, civilian objects are not considered as military objectives, and must not be the
object of any attack.18 In case of doubt regarding the use of civilian objects to advance military
action, such are presumed to be not so used.19 The devastation of property is prohibited except
where it may be justified by military necessity. To be punishable, the devastation must have been
perpetrated intentionally or have been the foreseeable consequence of the acts of the accused. 20
According to the principle of proportionality, any incidental damage to civilians must not be out
of proportion to the direct military advantage gained by the attack. 21 In determining whether an
attack was proportionate, it is necessary to examine whether a reasonably well-informed person
who is the actual perpetrator, making reasonable use of the information available to him, could
have expected excessive civilian casualties to result from the attack. 22 The expression concrete
and direct overall military advantage refers to a military advantage which is foreseeable by the
perpetrator at the relevant time.23
Launching indiscriminate attacks affecting the civilian population or civilian objects with
the knowledge of excessive adverse consequences is regarded as a grave breach of the
Conventions.24 Knowledge of the crime is established when there is a wilful attack coupled with

16

API,Art.51(1)

17

Strugar,Par.282,TJ
Supra.,Art.52(1)

18
19

Supra.,Art.52(3)

20

Blaskic,Par.183,TJ

21

Kupreskic,Par.524,TJ

22

Galic,Par.58,TJ

23

Footnote36,EOC

24

API,Art.85(3)(b)

the expectation of excessive civilian casualties.25 Finally, it is important to note that criminal
liability does not attach solely to those who physically carry out the attack but extends to those
who control or mastermind its commission because they decide its execution.26
As the person in charge of Operation Thunderstorm, 27 Reed ordered a vigorous attack
with artillery and air support directed against an approved list of targets including the privatelyowned BAS Factory and the residence of Bing. 28 It was the intention that the artillery attacks and
air strikes would be used to shock, disorient, and disrupt the Bethuisians before undertaking the
takeover of the city.29 Even as Minister Atom expressed his concern over civilian casualties,
General Reed maintained that collateral damages cannot be avoided.30
On July 17, 2009, 12 artillery shells were directed against the BAS Factory Compound,
killing 15 workers and severely injuring 30 others. At the time of the attack, all factory lights
were still on, indicating the presence of workers therein. 31 Granting that the factory was
contracted by PAB to assemble explosive devices, 32 the civilian workers did not lose their
protection because they did not take any direct part in the hostilities. Thus, the incidental deaths
and injuries cannot be justified.
On the next day, at 0600 and 0630 hours, two air strikes were launched, hitting the
apartment building were Bing lived,33 located in a residential area called the Peace Garden. 34 The
attack left 35 persons dead and another 50 persons injured. The apartment building was severely

25

Galic,Par.59,TJ

26

Lubanga,Par.920,TJ
Compromis,Par.16

27
28

Supra.,Par.21,23

29

Supra.,Par.18

30

Supra.,Par.20

31

Supra.,Par.30

32

Supra.,Par.25

33

Supra.,Par.27

34

Supra.,Par.26

damaged and the residents had to move out.35 The information that Bing was in the area at the
time of the attack did not change the civilian character of the said area and its residents.36
It is clear from the foregoing that the respondent did not observe the necessary
precautions in launching the attack. The attack was made at such time when most residents were
asleep.37 Moreover, the evacuation plan38 was not implemented as many of the residents thought
that the drones were mere surveillance planes to which they were already accustomed to.39
The aim of disrupting or disorienting the Bethuisians is clearly disproportionate to the
extensive damage sustained by Kiesh40 aside from civilian casualties.

III. GENERAL REED IS GUILTY OF THE WAR CRIME OF ATTACKING

PROTECTED OBJECTS
Attacks should be limited strictly to military objectives those objects which effectively
contribute to military action and whose destruction offer a definite military advantage. 41 There
are two types of properties protected under the Grave Breach Regime: i) property, regardless of
whether or not it is in occupied territory, that carries general protection under the Geneva
Conventions of 1949, such as civilian hospitals, medical aircraft and ambulances and ii) property
protected under Article 53 of the Geneva Convention IV, which is real or personal property
situated in occupied territory when the destruction was not absolutely necessary by military
operations.42

35

Supra.,Par27

36

Supra.,Par.26

37

Supra.,Par.27

38

Supra.,Par.26

39

Supra.,Par.28

40

Supra.,Par.29
[] Artillery shells landing 200-700 meters away from the targets.

41

API,Art.52(2)

42

Naletilic,Par.575,TJ

Medical units shall be protected at all times and shall not be the object of attack. 43 A
civilian hospital may be marked by an emblem which reinforces its protected status. 44 The
protection shall not cease unless they are commit acts harmful to the adverse party. However, the
protection will only cease after a warning has been given and only after a reasonable time limit
that such warning was unheeded, may such units be subject of an attack. 45 The fact that a medical
unit is guarded by a picket or by sentries shall not be considered to constitute an act armful to the
enemy.46
The destruction or wilful damage done to protected objects such as hospitals, or buildings
dedicated to religion must have been either perpetrated intentionally with the knowledge of the
consequence or in reckless disregard of the substantial likelihood of the destruction or damage. 47
A person has intent where, in relation to a consequence, that person means to cause that
consequence or is aware that it will occur in the ordinary course of events. 48 Such person shall be
criminally responsible and liable if the material elements were committed with such intent and
knowledge.49 Knowledge is the awareness that a circumstance exists or a consequence will flow
in the ordinary course of events.50
The Municipal Hospital which has been receiving wounded DKF fighters and PAB
soldiers, displayed a large red crystal emblem at its entrance. It was protected by Ventures staff
wearing military uniforms with a Ventures insignia and carrying assault rifles.51
Because of the information that Bethuisian soldiers were taking refuge in the hospital,
Reed ordered a squad to be sent to the hospital area, and reminded the squad commander that any

43

API,Art.12(1)

44

GCIV,Art.18

45

API,Art.13(1)

46

Supra.,(2)(b)

47

Brdjanin,Par.599,TJ

48

ICC,Art.30(2)(b)

49

ICC,Art.30(1)

50

ICC,Art.30(3)

51

Compromis,Par.32

threat should be eliminated, and non-threatening persons should be spared as much as possible. 52
These instructions were clear indications that Reed had anticipated a confrontation in the hospital
area and that he was knowledgeable of the logical consequences of such aggression. In addition,
Reed failed to emphasize the status of the hospital as a protected entity.
As the AAF squad approached the hospital, a Ventures guard saw them first and fired a
few shots. In response, the squad commander ordered his men to fire at the hospital from all
directions.53 The act of the Ventures guards cannot be considered as a direct offensive against the
AAF squad in the context of the armed conflict. Ventures is a multi-national security military
company which was not an actual party to the armed conflict.54
As a result of the attack, the hospital building was severely damaged with most of the
medical facilities destroyed.55

IV. GENERAL REED IS GUILTY OF THE WAR CRIME OF INHUMAN TREATMENT

ON THE BASIS OF SUPERIOR RESPONSIBILITY
A. General Reed has effective command and control over Jackson Walls acts in Westwood
Prison
Superior-subordinate relationship may arise from the formal or de jure status of a superior
or from the existence of de facto powers of control. It does not entail direct or formal
subordination. It only requires the exercise of effective control.56 Some factors indicative of
effective control relate to the accuseds position, his capacity to issue orders, his position within
the military structure, the procedure for appointment and the actual tasks performed.57
52

Compromis, Par.33

53

Compromis,Par.34

54

Compromis,Par.9

55

Compromis,Par.35

56

Limaj,Par.522,TJ

57

Halilovic,Par.66,AJ

While a superiors actual knowledge that his subordinates were committing or were about
to commit a crime cannot be presumed, it may be established by circumstantial evidence
including the number, type and scope of illegal acts, time during which the illegal acts occurred,
and officers and staff involved.58 General information regarding possible unlawful acts is
sufficient to prove that the superior had reason to know that a crime is being or is about to be
committed.59
A superior has the duty to prevent or punish a subordinate from the time he had or should
have known that a crime is being or is about to be committed. 60 He has the responsibility to
exercise measures within his power and according to the circumstances. 61 Thus, a superior shall
be held liable for failing to take such measures within his material possibility.62
The Emergency Decree issued by the Alphonian Government allowed Reed to order the
arrest and detention of persons deemed to present security threats. 63 Since the declaration of the
State of Emergency, Westwood Prison had been placed under military control. 64 Thereafter, Reed
appointed Wall as warden to supervise all operations in the prison.65
The foregoing facts establish that while there is no direct subordination, Reed still had
effective control over Wall.
Moreover, Reed cannot deny knowledge of the incidents in Westwood Prison. The
solitary confinement of Professor Mange for four months could not have been concealed from
him given the length of time and the prominence of Mange. In addition, the news about the
hunger strike reached major media in Alphon and Bethuis. In fact, the Alphonian Government
pressed Reed to solve the issue. Consequently, Wall wrote a letter addressed to Reed, informing

58

Limaj,Par.524,TJ

59

Delalic,Par.238,AJ

60

Limaj,Par.527,TJ

61

Blagojevic,Par.793,TJ

62

Strugar,Par.372,TJ

63

Compromis,Par.10

64

Compromis,Par.15

65

Ibid.

him that something needs to be done.66 In fact, the force-feeding was implemented after Walls
consultation with Reeds staff.67 But despite of his knowledge, Reed failed to take measures to
prevent or punish the acts committed by Wall.

B. Solitary confinement and force-feeding of protected persons constitute inhuman treatment

causing severe physical or mental pain or suffering.
Under customary international humanitarian law, solitary confinement is considered as
inhuman treatment.68 Prolonged isolation and deprivation of communication are in themselves
cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and
the violation of the right of every detainee to respect for his inherent dignity as a human being.69
In another respect, there is a prohibition in subjecting protected persons to any medical
procedure which is not consistent with generally accepted medical standards. 70 But to a certain
extent, force-feeding is allowed provided that it is not contrary to compelling internationally
accepted standards of medical ethics, and reflects in every respect such latest international
medical and ethical standards.71 In 2006, the World Medical Assembly 72 reiterated in the
Declaration of Malta that force-feeding is never ethically acceptable. With the concurrence of the
United Nations and the World Health Organization, it embodies the latest generally accepted
medical standards.
Protected persons are those who, at any given moment and in any manner whatsoever,
find themselves in the hands of persons a party to the conflict or occupying power of which they

66

Compromis,Par.39

67

Compromis,Par.41

ICRC publication on customary IHL treaties, conventions, military manuals, municipal

legislations and other instruments evidencing state practice and opinion juris.
68

69

Godinez-Cruz vs Honduras, IACHR

70

API,Art11(1)

71

Seselj,Par.15,TJ

72

Membership of WMA consists of associations from 102 countries

are not nationals.73 However, this cannot be interpreted in a way that would exclude victims from
the status of being a protected person merely on the basis of their common citizenship with the
perpetrator.74 Ethnicity rather than nationality may become the ground for allegiance. 75 With
respect to nationality, it is understood that the perpetrator needs only to know that the victim
belonged to an adverse party to the conflict.76
Mange was an outspoken supporter of the incorporation of Kebia to Bethuis. He
delivered several speeches encouraging Bethuisans to support the independence of Kebia.77 Prior
to his arrest on July 2, 2008, his students were also arrested 78 and all of them were detained in
Westwood Prison.79 From April to June 2009, he was placed under solitary confinement.
Thereafter on August 25, 2009, he went on a hunger strike to hasten his release and that of the
other detainees.80 Wall decided to subject them to force-feeding after consultation with Reeds
staff.81 Such acts, per se, constitute inhuman treatment which is detrimental to the physical or
mental well-being of the detainees.

CONCLUSION AND PRAYER

73

GCIV,Art.4

74

Kordic,Par.330,AJ

75

Tadic,Par.166,AJ

76

Footnote33,EOC

77

Compromis,Par.37

78

Ibid.

79

Compromis,Par.38

80

Ibid.

81

Compromis,Par.41

WHEREFORE, the APPLICANT respectfully prays before this HONORABLE COURT to

declare and adjudge that:

1. General Arthur Reed is guilty of the war crime of intentionally causing incidental loss of life
or injury to civilians or damage to civilian objects which is clearly excessive in relation to the
concrete and direct overall military advantage anticipated;

2. General Arthur Reed is guilty of the war crime of intentionally directing attacks against a
hospital which is not a military objective; and

3. General Arthur Reed is guilty of the war crime of inhuman treatment of protected persons on
the basis of superior responsibility.

Respectfully,

Agents for the APPLICANT