1 Defense

Prosecutor vs. Mr. Tony Gusman

Before the International Criminal Court at The Hague

October 2016

TABLE OF CONTENTS
INDEX OF AUTHORITIES

..

4
STATEMENT OF FACTS

..

7
SUMMARY OF PLEADINGS

..

10
PLEADINGS

..

12
I.

NO

..
II.

INTERNATIONAL

ARMED

CONFLICT

EXISTED

12

GUSMAN IS CRIMINALLY FOR THE WAR CRIME OF

STARVATION UNDER ARTICLE 8 (2) (b) (xxv) AND

ARTICLE 25 (3) (a)
A.

There is no deprivation to civilians of objects

indispensible to their survival

..

13

B.

There is no intention to starve civilians as a

method of warfare
C.

..

14

No individual criminal liability exists under

Article 25 (3) (a)

..

16

III. GUSMAN IS CRIMINALLY RESPONSIBLE OF THE WAR CRIME

OF ATTACKING CIVILIANS UNDER ARTICLE
8 (2) (b) (i)
A.

The

..
B.

attacks

did

target

civilians.

16
17

Gusman is not responsible as a military

commander under Article 28(a)

IV.

not

The element of intent is missing.

..
C.

alleged

..

18

GUSMAN IS NOT CRIMINALLY RESPONSIBLE

FOR THE WAR CRIME OF CAUSING WIDESPREAD,

LONG-TERM AND SEVERE DAMAGE
TO THE NATURAL ENVIRONMENT UNDER
ARTICLE 8 (2B) (IV) AND ARTICLE 25 (3) (A)
A.

Astro has great military advantage

B.

19

Environmental

damage

is

not

clearly

excessive

20
C.

The mental element is not present

D.

21

Gusman is not responsible for ordering,

soliciting or inducing the commission of war

crime under Art. 25 (3) (b)
PRAYER

22

23

Page 2 of 21

INDEX OF AUTHORITIES
Treaties
Customary International Humanitarian Law (hereinafter
CIHL)
Lieber Code of 1863
Protocol additional to the Geneva Convention of 12
August 1949, And relating to the protection of victims of

17
17
13, 15, 16,
20

international Armed conflicts (Protocol I) of 8 June 1977

(hereinafter API)
Rome Statute of International Criminal Court (hereinafter
Rome Statute)
United Nation Convention on the Law of the Sea

12, 14, 20,

21
14

(hereinafter UNCLOS)
Jurisprudence
Kamuhanda v. The Prosecutor, "Judgement", ICTR-99-54AA, International
Criminal Tribunal for Rwanda (ICTR), 2005 (hereinafter Kamuhanda)

22

Prosecutor v. Delalic, IT-96-21-T, International Criminal

Tribunal for the Former Yugoslavia (ICTY), 1998
(hereinafter Delalic)
Prosecutor v. Dusco Tadic (Appeal on Jurisdiction), IT-95-

18,19
12

Page 3 of 21

9, International Criminal Tribunal for the Former

Yugoslavia (ICTY), 2003 (hereinafter Tadic)
Prosecutor v. Fatmir Limaj (Trial Judgment), IT-03-66-T,
International Criminal Tribunal for the Former Yugoslavia

12

(ICTY), 2005 (hereinafter Limaj)

Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T,
International Criminal Tribunal for Rwanda (ICTR), 1998

22

(hereinafter Akayesu)
Prosecutor v. Jean-Piere Bemba, ICC-01/05-01/08,
International Criminal Court (ICC), 2010 (hereinafter

18

Bemba)
Prosecutor v. Mile Mrksic (Trial Judgment), IT-95-13/1-T,
International Criminal Tribunal for the Former Yugoslavia

12, 13

(ICTY), 2007 (hereinafter Mrksic)

Prosecutor v. Miodrag Jokic, IT-01-42/1, Criminal
Tribunal for the Former Yugoslavia (ICTY), 2004

16

(hereinafter Jokic)
Prosecutor v. Stanislav Galic (Trial Chamber I), IT-98-29T, International Criminal Tribunal for the Former

21

Yugoslavia (ICTY), 2003 (hereinafter Galic)

Prosecutor v. Strugar, Case No. IT-01-42-T, International
Criminal Tribunal for the Former Yugoslavia (ICTY),

21

2005 (hereinafter Strugar)

Prosecutor v. Sylvetre Mudacumura, ICC-01/04-01/12,
International Criminal Court (ICC), 2012 (hereinafter

22

Mudacumura)
Prosecutor v. Thomas Lubanga Dyilo (Trial Judgment),
ICC-01/04-01/0, International Criminal Court (ICC), 2012

12

(hereinafter Lubanga)
Prosecutor v. Tihomir Blaskic, IT-95-14-A, Criminal
Tribunal for the Former Yugoslavia (ICTY), 2004

17

(hereinafter Blaskic)
Books/Journals
D. Schindler, The different Types of Armed Conflicts
According to the Geneva Conventions and Protocols,
Page 4 of 21

12

Commentaries on API, Kunt Dorman,

Crimes to Environmental Crimes, 22 FORDHAM INTL

13

L. J. 122 (1998)

20

Elements of Crime, International Criminal Court

(hereinafter EC, ICC)
ICRC, Commentaries, No. 309, Part III, Sec. V (67) (a).
ICRC Commentary on additional Protocol I
ICRC, Law of Armed Conflict
ICTY, Final Report to the Prosecutor by the Committee
Established to Review the NATO Bombing Campaign.
Mark A. Drumbl, Waging War Against the World: The
Need to Move From War
W.J. Fenrick, "Article 8(2)(b)(iv), in: O. Triffterer (ed.),
Commentary on the Rome Statute of the International
Criminal Court, 1999.

Page 5 of 21

13, 14, 15,

16
19
19
15
12, 20
20

20

STATEMENTS OF FACTS
Background
1.

Astro, Casa and Bereto border the Middle Sea with Casa located to the

northwest of Astro, facing the east coastline of Bereto.

2.

Astro was ruled by a military government led by General George Ayana

and Admiral Tony Gusman.

3.

The Yukule Archipelago has been until 2008, under Bereton control and in

charge of its defence and foreign affairs, although it enjoyed complete autonomy in
managing its internal affairs.
4.

Astro has been contesting Bereton sovereignty over the Archipelago based

on the proximity of the Archipelago to Astros coast and the unlawful annexation of
the Archipelago after the Second World War.
5.

On 4th February 2008, they invaded the same and quickly gained control

of Port Solferino, its capital city.

6.

On 10th February 2008, the Governor of the Archipelago voluntarily

surrendered; and a Military Administration was established to govern the Archipelago

directly under the supervision of the Crisis Military Commission. However, a
resistance militia, was formed and led by Colonel Spartan from the Bereton army.
They used guerrilla tactics, including the use improvised explosive devices along the
main roads of the island. Bereto was the main source of military supply to the
resistance.
7.

In one incident, an ambulance carrying 5 wounded soldiers, one nurse and

one doctor were unwarrantedly killed by roadside bombs. Astron vessels also suffered

Page 6 of 21

surprise attacks from Yukulean fishing boats that were used to transport weapons and
explosive devices.
Control measures
8.

The Administration announced on 1st September 2008 that all foreign

ships entering a Maritime Control Zone had to request prior authorization from the
Military. The activities of local fishermen are also limited to 6 nautical miles offshore.
Only goods exclusively used for civilian purposes would be allowed into Yukule.
Operation Blue
9.

On 15th April 2010, ten NGOs formed a coalition under the name of Free

Yukule Movement (the Movement), led by the Bereton Sacred Fighters, a listed
terrorist group chaired by Jonas Borman.
10.

The Movement announced that it had chartered a Casa registered vessel,

Nirvana, to deliver humanitarian packages to Yukule. Their aim was to send a

message of alarm to the international community.
11.

Nirvana, set sail for Yukule. On board were 200 passengersa mixture of

citizens from Astro, Casa, Bereto and ten other countries; human rights activists and
anti-Astron protestors recruited over the internet and an addition of Sphinx guards.
12.

Gusman received intelligence that Nirvana also had a stock of rifles,

ammunition and grenades on board. He appointed Commander Hanson to lead a troop

of 60 marines to defend the Maritime Control Zone which under no circumstances
be compromised.
13.

As Nirvana approached Port Solferino in the late evening of July 20th,

2010, its ship captain was informed that they would only be allowed to enter the
controlled maritime zone if they submit their cargo for inspection. Heedless of the
Page 7 of 21

repeated warnings, Nirvana proceeded to approach headland, prompting Hanson to

issue a final warning via radio and board the vessel. Sphinx guards and passengers
violently resisted the commando, causing Hanson to order his troops to open fire. An
hour lasted before the Sphinx guards surrendered. Casualties were accounted; the
wounded were given medical treatment and everyone on board the Nirvana was taken
into custody.
Oil spills and Oil fires
14.

On August 25, 2010 Bereton deployed naval task force and launched

intensive air campaign against Astron naval and land forces. Unable to stop the
Bereton navy, Gusman instructed Freedman to resort to all resources available to
stall the enemy. Freedman then ordered Ardent to open the valves of three oil
terminals on the western side of the island to slow down the advancement of Bereto.
However, Bereton naval forces managed to land on the southern part of Yukule and
rapidly advanced towards Port Solferino. Gusman commanded Ardent to take all
measures possible to stop the advancement of the Bereton forces. On the same day,
large oil storage tanks burst into huge fires.
15.

In January 2011, the UNEP pointed out that the oil spills and fires could

have a major effect on the reef habitation offshore Yukule. However, according to Dr.
Sulivan from the Casan Meteorology and Environmental Protection Administration
the damage was not devastating and it may take a few years for the environment to
return to its former state. Another study on Yukule's coral reefs concluded that there
was no significant difference found between the species or families of oiled and nonoiled reefs off the Yukulean coastline.

Summary of Pleadings
I.

INTERNATIONAL ARMED CONFLICT DOES NOT EXIST

Page 8 of 21

The absence of international armed conflict can not hold Gusman liable
for the three charges of war crime against him. Yukule is not a State therefore no
international armed conflict exists between Astro and Yukule as provided in
Hamdan which reflects the historic view that (international) war could only take
place between states.
II.

GUSMAN IS NOT LIABLE FOR THE WAR CRIME OF

STARVATION UNDER ARTICLE 8 (B) (XXV) AND ARTICLE 25 (3) (A)

There is no intent to use deprivation of the Yukuleans of their essentials for
survival as a warfare method when the Administration exercised restraint on the
exchange of goods and strict rules on import. Its actions were directed exclusively for
preventive mechanism and security measure.
III.

GUSMAN IS NOT CRIMINALLY RESPONSIBLE OF THE WAR

CRIME OF ATTACKING CIVILIANS UNDER ARTICLE 8 (b) (i)

Gusman, as the acting Commander-in-Chief of the Armed Forces, appointed
Hanson to lead Operation Blue to implement strictly the inspection and regulation
within the Maritime Controlled Zone. The mere possibility that a war crime may arise
between the marines and Nirvana does not suffice to ground criminal responsibility.
He is not cognizant that Nirvana would breach the blockade despite repeated
warnings regarding their unlawful entry in the Maritime Control Zone.
IV.

GUSMAN IS NOT CRIMINALLY RESPONSIBLE FOR THE WAR

CRIME OF CAUSING WIDESPREAD, LONG-TERM AND SEVERE

DAMAGE TO THE NATURAL ENVIRONMENT UNDER ARTICLE 8 (2B)
(IV) AND ARTICLE 25 (3) (A)
The environmental damage, which is not widespread, nor long-term and severe,
has been justified by a greater military necessity. Moreover, the military advantage of
Astro, which is substantial, foreseeable at the relevant time and relatively close in
abating the advancement of the Bereton Forces, that involves its sovereign claim over
Page 9 of 21

Yukule, is great. These factors having been proven, adheres to the principle of
proportionality.

PLEADINGS
It is an international human right that an accused is to be presumed
innocent unless the contrary is proven. To overcome this presumption, the onus is
on the prosecution to convince the Court of the guilt of the accused beyond
reasonable doubt1. It is the contention of the defense that the charges against the
accused do not overcome this presumption.
I.

NO INTERNATIONAL ARMED CONFLICT EXISTED

The International Criminal Tribunal for the former Yugoslavia (ICTY) proposed a
general definition of international armed conflict. In the Tadic case, the Tribunal
stated that "an armed conflict exists whenever there is a resort to armed force between
States". This definition has been adopted by other international bodies since then 2.
1

Rome Statute, Art 66 (1)-(3).

ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion

for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para.
70.
2

Page 10 of 21

According also to D. Schindler, "the existence of an armed conflict within the

meaning of Article 2 Common to the Geneva Conventions can always be assumed
when parts of the armed forces of two States clash with each other. [] Any kind of
use of arms between two States brings the Conventions into effect" 3. However, in
this case, Yukule, not being a State, can not give rise to an international armed
conflict with Astro which is a State.
For an armed conflict to be classified as non-international, the ICTY went on to
determine its existence of whenever there is [] protracted armed violence between
governmental authorities and organised armed groups or between such groups within
a State" . There is organization when the following factors are present: the groups
internal hierarchy, the command structure, military equipment availability, ability to
plan and carry out military operations and the extent of military involvement. 4 On the
other hand, protraction5 is present when these factors are satisfied: seriousness of
attacks, spread over territory, period of time, extent of government forces,
mobilization and the distribution of weapons. 6 In this case, the requisites are met for a
non international armed conflict to exist.7
The absence of international armed conflict can not hold Gusman liable for
the three charges of war crime against him.

D. Schindler, The different Types of Armed Conflicts According to the

Geneva Conventions and Protocols, RCADI, Vol. 163, 1979-II, p. 131
3

Limaj para.90; Haradinaj para.60.

Mrksic para.407

6Ibid.

para. 538.

Compromis, paras. 7, 8.
Page 11 of 21

II.

GUSMAN IS NOT CRIMINALLY RESPONSIBLE FOR THE WAR

CRIME OF STARVATION UNDER ARTICLE 8 (B) (XXV) AND ARTICLE 25

(3) (A)
A. There is no deprivation to civilians of objects indispensable to their
survival.
Extermination, defined as including the intentional infliction of
conditions of life, inter alia, the deprivation of access to food and medicine,
calculated to bring about the destruction of part of a population, constitutes a
crime against humanity when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack.

There is deprivation when the supply of essential commodity, of something

necessary for the sustenance of the civilian population to exist, which includes
food stuffs, agricultural areas for the production of food stuffs, crops, livestock,
drinking water instillations and supplies, irrigation works,9 medicine and
blankets10 are inadequate.
Upon Yukules surrender to the Astro the measures were imposed by the
Administration to Astro as its Administrator. Due to the unpredictable situation of
Yukule , importation of goods was restricted but not prohibited to stop attacks and
abate continued resistance sustained by entry of weapons. The Administration
enforced the Maritime Control Zone in Yukule, where a state may declare a
contigous zone to an area not extending beyond 24 nautical miles in order to
enforce and punish any infringements of its customs laws, imigration laws,
sanitary laws, and fiscal laws. The checkpoint imposed was not intended to
8

ICC Statute, Article 7

9 Art

10

54 (2), Protocol I

Dorman, Commentaries on API

Page 12 of 21

deprive the civilians of resources for survival but only to seize prohibited items.
Banning of certain fertilizers and pesticide, which may be used in the production
of explosives and strict scrutiny on imported construction materials are
regulations, as these are products not directly essential to food sources, but
significant because it posts as security threat. The suspension of importation of
humanitarian aids is not to deny the civilians to their sources of basic essentials
but construed as prevention to militia members seeking help from humanitarian
organizations.
B. There is no intention to starve civilians as a method of warfare
Starvation as a method of warfare must be intentional 11. Intent is a mental
element that will ascertain the purpose to use a particular means to affect such
result. However, although it may not be easy to prove, the existence of intent may
be inferred from relevant facts and totality of the circumstances.12
The is a need to stop the supply of weapon of the Militia and pressure the
population to disengage from the unrest

and prevent creation of explosive

materials intended to be used against them were operative on their part. The
suspension by the Administration of importation of all goods including
humanitarian aids happened only when Militia attacked the Administration, which
caused the death of Astron soldiers and its deputy. Suh action is for preventive
measures and for security reason where the wounded members of Militia were
seeking shelters to humanitarian organizations. The Administration protects those
who are wounded or sick persons, whether military or civilian, who because of
trauma, disease or other physical or mental disorder or disability, is in need of
medical assistance or care and refrain from any act of hostility. The Militia
members are, even if wounded, not part of the protected person for they did not
cease to the act of hostility. Humanitarian organization, as a rule, shall not take
11 ICC

12

Statute, Article 7

EC, ICC

Page 13 of 21

any side in armed conflict13. Hence, the act of Militia in resorting shelter to the
said organization would help the Militia from recovering and advancing a further
attacks. Also, the banning of goods was justified under the Scorched Earth Policy
because the civilian objects were used in direct support of military action of the
adverse party. Resuming importation of goods and supplies two months after the
attack and from relevant facts showed that the Administration did not intend to
deprive the Yukuleans of essentials for their survival as a warfare method but its
actions were directed exclusively for preventive mechanism and security measure.
C. No individual criminal liability exists under Article 25 (3) (a)
In Jokic Miodrag, individual criminal responsibility attaches to person
who planned, instigated, ordered, committed or otherwise aided and abetted in the
planning, preparation or execution of crime.14 Gusman did not perform any of the
these acts which would render him liable. Gusman did not plan nor instigate,
much more ordered nor committed the charges imputed to him for such control
measures were intended exclusively as a security measure and preventive
mechanism.
III.

GUSMAN

IS

NOT LIABLE

OF THE WAR

CRIME

OF

ATTACKING CIVILIANS UNDER ARTICLE 8 (2) (b) (i)

The war crime of attacking civilians requires five elements,
conducts failed to meet these requisites.
A. The alleged attacks did not target civilians.
13

ICRC, Law of Armed Conflict

14

Jokic Miodrag, 56

15

EC, ICC.
Page 14 of 21

15

but the alleged

When Nirvana, suspected to have been carrying a stock of weapons,

notably rifles, ammunition and grenades, was 24 miles away from Port Solferino,
it, despite repeated warnings, refused to stop for inspection and proceeded to Port
Solferino. Its purpose, location and use provide an effective contribution and
attacking it offers a definite military advantage. Thus, despite the unavoidable
damage to civilians, the attack did not target civilians.
The Commando encountered strong resistance from the Sphinx Guards
and passengers upon boarding. Activists also used improvised weapons and fired
some gunshots against the marines15 they lost their protection as a civilian and
becomes a valid military objective.16
B. Intent as an element does not exist.
The intent to commit the crime is wanting. Donald Piragoff asserts that
"'intent' . . . connotes some element, although only minimal, of desire or
willingness to do the action, in light of an awareness of the relevant
circumstances." In Blaskic, it was held that the mens rea of recklessness
incorporates (i) the awareness of a risk that the result or consequence will occur or
will probably occur, and (ii) the risk must be unjustifiable or unreasonable. The
mere possibility of a risk that a crime or crimes will occur as a result of the actor's
conduct generally does not suffice to ground criminal responsibility.16
Gusman, as the acting Commander-in-Chief of the Armed Forces 17,
appointed Hanson to lead Operation Blue to strictly implement the inspection
and regulation within the Maritime Controlled Zone. 18 The mere possibility that a
Donald K. Piragoff, Mental Element, in COMMENTARY ON THE
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
16

17

Compromis, Par.2.

18

Compromis, Par. 24.

Page 15 of 21

war crime may result between the marines and Nirvana does not suffice to ground
criminal responsibility. He did not comprehend that Nirvana would breach the
blockade despite repeated warnings that their entry in the Maritime Control Zone
is unlawful and will be prevented in any means available. 19
C. Gusman is not responsible as a military commander under Article
28(a)
1. There was no effective control
In Bemba, effective control is an element of superior responsibility20 and
must be obtained by modality, manner or nature by a commander over his
forces or subordinates.21 The standard of it requires commander to have
material capability to prevent or punish criminal acts.22
Hanson, in-charge of Operation Blue ordered to board and seize Nirvana
and to conduct an open fire, without receiving or even asking Gusman for
instructions.23 Gusman did not have any direct communication with Hanson
during the armed conflict. Thus, Gusman had no effective control in Operation
Blue.
2.

Neither Gusman knew nor had reason to know of Hansons acts.

19

Compromis, Par. 26

20

Bemba, Paras. 410, 411.

21

Bemba, Paras. 410, 411.

22

Delalic (Celebici), Para. 378.

23

Compromis, Par. 26.

Page 16 of 21

The ICTY, in Delalic, held that a superior can be held criminally

responsible only if some specific information was in fact available to him
which would provide notice of offences committed by his subordinates.24
Hanson`s decision to board and seize Nirvana, and to open fire was done
without notifying Gusman.25 No amount of knowledge or information enabled
Gusman to draw from the circumstances from which he can infer that Hanson
will commit such act. Hence, Gusman neither knew nor had reason to know
that the alleged crime would be committed.
IV.

GUSMAN IS NOT LIABLE FOR THE WAR CRIME OF CAUSING

WIDESPREAD, LONG-TERM AND SEVERE DAMAGE TO THE NATURAL

ENVIRONMENT UNDER ARTICLE 8 (2B) (IV) AND ARTICLE 25 (3) (A) OF
THE ROME STATUTE OF ICC
A. Astro has great military advantage
Under the principle of proportionality, collateral damage of an attack cannot
be excessive in relation to the concrete and direct military advantage
anticipated.26 To establish this principle, two factors shall be proved; military
advantage is great and environmental damage caused is not greater than said
attack.27

24

Delalic, Para. 393.

25

Compromis. Par. 27.

26

ICRC Commentary on additional Protocol I

27

Ibid.
Page 17 of 21

Military advantage should be foreseeable at a substantially relevant time28 and

relatively close to the actual armed conflict. 29 In this case, Astrons objective is
crystal-clear.30 This objective is substantial, foreseeable at the relevant time and
relatively close, for this involves imminent defeat of the Astro by the Bereton.
In Rendulic,31 the Nuremberg Military Tribunal acquitted General Rendulic of war
crime of causing vast destruction in Norway in order to escape the advancing
Russian troops on the basis that the military necessity justified his action. 32 In this
case, the military necessity is great, thus, justifying the damage to the natural
environment33
.

Military necessity has been defined as an urgent need, admitting of no delay,

for the taking by a commander of measures which are indispensable for forcing as
quickly as possible the complete surrender of an enemy by means of regulated
violence , and which are not forbidden by the laws and customs of war. Thus, this
definition, taken from The Hostages Trial by W. Downey, is based on four
foundations:

urgency, measures which are limited to the indispensable, the

control in space and time of the force used, and the means which should not
infringe an unconditional prohibition.
28

ICTY, Final Report to the Prosecutor by the Committee Established to Review

the NATO Bombing Campaign, para. 50.

29

Commentary on the AP to the Geneva Conventions, (ICRC Study),

para. 2209.
30

Compromis, para. 39.

31

Rendulic 69.

Mark A. Drumbl, Waging War Against the World: The Need to Move From War
Crimes to Environmental Crimes, 22 FORDHAM INTL L. J. 122, 134 (1998).

32

33

Compromis, para. 39.

Page 18 of 21

B. Environmental damage is not clearly excessive

Environmental damage should be widespread, long-term and severe.34
These three qualities of damage must be satisfied.35 In this case, the damage
caused by Astro was estimated to take a few years. 36 Clearly, a period of few
years does not qualify as a long-term damage. Furthermore, a study on Yukules
coral reefs concluded that there was no significant difference found between the
species of oiled and non-oiled reefs off the Yukulean coastline.
C. The mental element is not present
The requisites of mens rea are: (1) perpetrator knew that the attack would cause
widespread, long-term and severe damage to the natural environment; and (2)
perpetrator knew that environmental damage would be clearly excessive.37
In Galic, the ICC held that knowledge of the circumstances requires that the
perpetrator assess the possible casualties based on requisite information which
enables him to know the excessive damages as a consequence of the attacks.38

34

Rome Statute, Art. 8 (2) (b) (iv) and API, Art. 35 (3).

W.J. Fenrick, "Article 8(2)(b)(iv), in: O. Triffterer (ed.), Commentary on the

Rome Statute of the International Criminal Court, 1999, 197.

35

36

Compromis, para. 42.

37Rome

38

Statute, Art. 8 (2) (b) (iv).

Galic para. 58.

Page 19 of 21

In this case, Gusman merely gave Freedman and Ardent general order.39 It was the
latter who had direct control of the military actions taken by the Astron Force.40
In Strugar41 a perpetrator is liable for the attack if he has direct intent to damage
or destroy. In this case, Astro was forced by circumstances to employ such attack
with the belief that they would be able to stop the advancement of Bereton Force
towards Yukule.42
D. Gusman is not responsible for ordering, soliciting or inducing the
commission of war crime under Art. 25 (3) (b)
Mudacumura laid down the elements for establishing liability under Art. 25(3)
(b). One of these elements was not satisfied.
The requisite actus reus is missing. To prove actus reus, it must be established
that Gusmans order has a direct effect on the commission of the alleged crime. In
Kamuhanda43, order shall have direct and substantial authority over the perpetrator of
the crime. Akayesu44 provides that the evidence must prove: in what capacity the
accused supported the act; and order has direct effect on the commission of the crime.
In this case, Gusman only gave a general order. After this was given, Gusman
never performed succeeding acts showing that he influenced the military actions taken by
Astron Force on the ground. Moreover, there were no clear proofs to show in what
39

Compromis, para. 36.

40

Compromis, para. 37.

41

Strugar, para. 311.

42

Compromis, paras. 36, 39.

43

Kamuhanda para. 75.

44

Akayesu, para. 642.

Page 20 of 21

capacity Gusman supported the act or how the order affected the commission of the
crime.

PRAYER FOR RELIEF

Wherefore, the defense prays that this Honoroble Court, render judgement
finding the accused not guilty of the crime charged.
Counsel of Defense

Page 21 of 21