I.

STATEMENT OF FACTS
Yukule Island is one of the largest islands of the archipelago, which is currently under

Beretos control. This island is rich of its natural resourceslarge bird populations, massive
group of coral reefs and large oil reserves.
Astro has been contesting to Bereton over the archipelago of Yukule. Astro was struck by
political crisis, Astron Armed Forces invaded Yukule and quickly gained control of Port
Solferino.
February 10, 2008, Resistance Militia was formed by Bereton armed forces and police
forces, led by Colonel Spartan from the Bereton army. July 2008, the Military Administration
established check-points in key areas of the island. Restraints were also imposed on the flow of
goods in and out of Yukule. Anti-Astro attacks were, however, still on rise.
Control measures
September 1, 2008, Admiral Gusmans Administration announced that all foreign ships
entering a Maritime Control Zone, area within 24 nautical miles from the Yukule Island
coastline, had to request prior authorization from the Military Administration. The Military
Administration also limited the activities of local fishermen to 6 nautical miles offshore.
Admiral Gusman announced that only goods exclusively used for civilian purposes
would be allowed into Yukule. Importation of raw materials and manufactured goods was
reduced, and prices soared.
On November 15, 2009, the Astron Military Administration in Solferino was attacked by
militia members. The next day, Admiral Gusman announced suspension of all imports for
security reasons.

Operation Blue
On April 15, 2010, ten NGOs decided to form a coalition under the name of Free Yukule
Movement. The Movement was led by the Bereton NGO Sacred Fighters, whose chairman was
Mr Jonas Borman.
On May 30, 2010, the Free Yukule Movement announced that it had chartered a Casaregistered merchant vessel, Nirvana, to deliver humanitarian packages to Yukule. The Bereton
government expressed support for the just cause of the Movement. Thirty employees of a
Bereton private security company, Sphinx, were hired to provide escort to the convoy.
Nirvana had 2,000 tons of cargo on board, mostly food, medicine and basic necessities.
Admiral Gusman received intelligence that the Nirvana was also carrying a stock of weapons,
notably rifles, ammunition and grenades. He soon established a commando of 60 marines to deal
with the potential threat. The operation was named Blue. Gusman appointed Commander
Hanson to lead operation.
In the late evening of July 20, 2010, Nirvana was informed that he was approaching a
controlled maritime zone and that the ship would not be authorized to proceed to Port Solferino
unless its cargo was inspected and its passengers controlled before entering the zone. Despite of
warnings, Nirvana still proceeds. When Nirvana was 24 nautical miles away from the Port,
Commander Hanson sent a final warning via radio that all available measures would be taken to
prevent unlawful entry. He then ordered to board and seize the Nirvana. After one hour of intense
exchange of fire, the Sphinx guards surrendered after running out of ammunition.
One month after Operation Blue, Astro issued a statement noting a decline of militia
attacks in Yukule and promised to loosen the import controls. In September 2010, a report
released by the Astron Ministry of Defence concluded that Operation Blue was conducted
lawfully on grounds of national security and self-defence. Commander Hanson was cleared of
any responsibility.

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Oil spills and oil fires

On August 25, 2010, a Bereton naval task force set sail for Yukule. On 17th September,
Bereto launched an intensive air campaign against the Astron land and naval forces in Yukule,
while the Bereton navy engaged Astron navy on the high seas.
On September 24, 2010, Captain Ardent, after consulting Rear Admiral Freedman,
ordered to open the valves of three oil terminals on the western side of the island, while Astros
ships moved eastward towards the Astron coast. Admiral Gusman told Captain Ardent to take
all measures possible to stop the advancement of the Bereton forces. On the same day, large oil
storage tanks on a site by the sea near the Port burst into huge fires. Astron soldiers in Yukule
retreated to the mainland.
II.

PRELIMINARY MATTERS
A. THERE IS AN INTERNATIONAL ARMED CONFLICT IN EXISTENCE
As pronounced by the Honorable Court in the case of Prosecutor vs. Tadic, armed

conflict is international in character if it takes place between two or more States. In addition, in
case of an internal armed conflict breaking out on the territory of a State, it may become
international (or, depending upon the circumstances, be international in character alongside an
internal armed conflict) if (i) another State intervenes in that conflict through its troops, or
alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that
other State.
In the case at hand, the Bereto exercised the overall control over the armed group in
Yukule since the former provided military supplies to the local militia. It is expedient to
consider also that the leader of the local militia was led by Colonel Sparta who was promoted
to Major General by the President of Bereto alongside with the local militias composition of
armed and police forces of the Bereton. Therefore, though the conflict was internal, it was
internationalized by the fact that the participants in the internal armed conflict act on behalf of
that other State and is assisted by another State. As such, there exist an international armed
conflict in this case.

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III.

SUMMARY OF PLEADINGS
A. ADMIRAL TONY GUSMAN IS NOT CRIMINALLY RESPONSIBLE FOR
COMMITTING, AS AN INDIVIDUAL OR JOINTLY WITH ANOTHER
OR

THROUGH

ANOTHER

PERSON,

THE

WAR

CRIME

OF

INTENTIONALLY USING STARVATION OF CIVILIANS.

As embodied in Customary International Law and as reflected in Protocol I and Protocol
II of 1977 to the 1949 Geneva Conventions, the use of starvation of the civilian population as a
method of warfare is prohibited in international and non-international armed conflicts. Tony
Gusman is not liable because he did not have the intention to starve the civilian population in
Yukule and that the control measures did not amount to the deprivation of the objects of the
Yukule population needed to their survival.
B. ADMIRAL TONY GUSMAN IS NOT CRIMINALLY RESPONSIBLE FOR
THE WAR CRIME OF INTENTIONALLY DIRECTING ATTACKS
AGAINST CIVILIAN POPULATION.
In this case, there was no clear proof that the passengers of Nirvana are considered
individual civilians not taking direct part of hostilities.
C. ADMIRAL TONY GUSMAN IS NOT CRIMINALLY RESPONSIBLE FOR
ORDERING THE WAR CRIME OF INTENTIONALLY LAUNCHING AN
ATTACK THAT WILL CAUSE SEVERE DAMAGE TO THE NATURAL
ENVIRONMENT.
Admiral Tony Gusman is not criminally responsible for ordering the war crime of
intentionally launching an attack that will cause widespread, long-term and severe damage to
the natural environment which would be clearly excessive in relation to the concrete and
direct overall military advantage anticipated.
IV.

PLEADINGS
A. COUNT 1: ADMIRAL TONY GUSMAN IS NOT CRIMINALLY
RESPONSIBLE FOR COMMITTING, AS AN INDIVIDUAL OR JOINTLY
WITH ANOTHER OR THROUGH ANOTHER PERSON, THE WAR
CRIME OF INTENTIONALLY USING STARVATION OF CIVILIANS.
Page 4 of 14

Starvation as a method of warfare is prohibited both in international both in

international and non-international armed conflict.1 The prohibition of starvation as a method
of warfare does not prohibit siege warfare as long as the purpose is to achieve a military
objective and not to starve a civilian population. 2 Corollary, as expressed in AP II 3, the
prohibitions in attacking, destroying, removing or rendering useless objects indispensable to
the survival of the civilian population shall not apply to such of the objects covered by it as
are used by an adverse party if: i) such objects are used as sustenance solely for the
members of its armed forces; or ii) if not as sustenance, then in direct support of military
action, provided, however, that in no event shall actions against these objects be taken which
may be expected to leave the civilian population with such inadequate food or water as to
cause its starvation or force its movement. Essentially, the material elements of starvation 4
as provided under the Rome Statute are not met.

1. There Was No Intention Of Starving The Yukule Civilians.

Intention may be inferred from the totality of the circumstances of the military
campaign. Particularly relevant to assessment of intention is the effort the attacker makes to
comply with the duties to distinguish between civilians and military targets and to avoid
harming civilians and the civilian economy.5 The prohibition of starvation as a method of
warfare does not prohibit the imposition of a naval blockade as long as the purpose is to
achieve a military objective and not to starve a civilian population. 6 The restrictions on the
importation of goods was only tightened in such a way that only goods exclusively for civilian
purposes would be allowed into Yukule due to the sporadic attacks of the local militia. Fishing

Article 54 (1) of 1977 Additional Protocol I and Article 54 of 1977 Additional Protocol II to the
1949 Geneva Convention.
2
France, LOAC Manual (ibid., 136); New Zealand, Military Manual (ibid., 138).
3
Article 54(3) 1977 Additinoal Protocol II to the 1949 Geneva Convention.
4
Article 8 (2)(b)(xxv) of the Rome Statute.
5
U.N. General Assembly Resolution 2444, Respect for Human Rights in Armed Conflicts,
United Nations Resolution 2444, G.A.
Res. 2444, 23 U.N. GAOR Supp. (No. 18) p. 164, U.N. Doc. A/7433 (1968).
6
San Remo Manual, 102103 (ibid., 160); military manuals of Australia (ibid., 162),
Canada (ibid., 163), France (ibid., 165) and United States (ibid., 169).
1

Page 5 of 14

activities were not also totally banned but was only regulated due to the increasing volatile
situation in Yukule. As such, there was no intention to starve the Yukule civilians.
2. The Civilians Were Not Deprived Of Objects Indispensable To Their Survival
As an element of the war crime of starvation, the deprivation should pertain to objects
indispensable to the civilian populations survival.7 Covered by the prohibition is the
deprivation of the civilian population on their foodstuffs, agricultural areas for the production
of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.

Thus, there was no deprivation that happened but only restrictions since fishing activities, and
importation of goods and goods exclusively for civilian purposes were allowed. It is worthy to
note that the control measures are for the safety of the civilians due to the sudden attacks of the
local militia. The imposition of a naval blockade as long as the purpose is to achieve a
military objective and not to starve a civilian population is allowed in an armed conflict. 9
Justifiably, the check-points in the key areas of the island, measures imposed on the
importation of goods and fishing activities by the Astro government were acceptable as to the
end view of protecting the civilian population. All restrictions made were only in furtherance to
military necessity.
3. Tony Gusman Is Not Individually Criminally Liable For Committing The
War Crime Of Starvation
The nature of the armed conflict is irrelevant for the determination of the crime of
starvation considering that the use of starvation of the civilian population as a method of
warfare is prohibited both in international and non-international armed conflicts. 10
In the very first place, crime of starvation was not committed. The specific elements
thereof were not met i.e. depriving the civilian population of objects indispensable to their
survival, and was done intentionally.11 With regard to the first specific element, the control
measures imposed on the importation of goods and on the fishing activities were done in
furtherance for the security of the archipelago and the goods exclusively for civilian purposes
were allowed for entry. The local fishermen can still fish just 6 miles offshore. Goods were also
Article 8 (2)(b)(xxv) of the Rome Statute.
Article 14 of the Additional Protocol II of 1977.
9
San Remo Manual, 102103 (ibid., 160); military manuals of Australia (ibid., 162),
Canada (ibid., 163), France (ibid., 165) and United States (ibid., 169).
10
Article 54 (1) of 1977 Additional Protocol I and Article 14 of 1977 Additinoal Protocol II
11
Article 8(2)(xxv) of the Rome Statute.
7
8

Page 6 of 14

brought to different areas of island though delayed due to the damaged roads predicated on the
road bombs implanted by the local militiamen. As to the second element, there was no proof
beyond reasonable doubt imputing Tony Gusman that he deliberately committed the war crime
of starvation. What he had done is just to impose control measures for the purpose of the
security of the archipelago due to the increasing volatile situation in Yukule.
B. COUNT 2: ADMIRAL TONY GUSMAN IS NOT CRIMINALLY
RESPONSIBLE

FOR

THE

WAR

CRIME

OF

INTENTIONALLY

DIRECTING ATTACKS AGAINST CIVILIAN POPULATION.

1) Individual Civilians Were Considered As Combatants From The Moment
They Direct Part In Hostilities
As a general rule, civilians are protected against attack, unless and for such time as
they take a direct part in hostilities. The rule whereby civilians lose their protection against
attack when and for such time as they take a direct part in hostilities is contained in Article
51(3) of Additional Protocol I, to which no reservations have been made 12. Numerous
military manuals state that civilians are not protected against attack when they take a direct
part in hostilities13. As per the facts of the case, Nirvana was also carrying a stock of weapons,
notable rifles, ammunition and grenades. We can conclude that these individual civilians has
the intention to take part of the hostility between Astro and Bereton.
2) Alleged Attacks Did Not Target Civilians.
Military objectives are limited to those objects which by their nature, location,
purpose or use make an effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage 14.
Additional Protocol I, Article 51(3) (adopted by 77 votes in favour, one against and 16
abstentions) (cited in Vol. II, Ch. 1, 755).
13
Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional
Protocols (ibid., 800).
12

14

Additional protocol Art 52(2)

Page 7 of 14

In this case, Nirvana, is located 24 nautical miles away from Port Solferino, is
alleged to have been carrying a stock of weapons, notably rifles, ammunition and grenades,
and have breached a blockade, and after prior warning intentionally and clearly refuse to
stop, or intentionally and clearly resist visit, search or capture. Its location, purpose 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.
3) The Element Of Intent Is Missing
The criminal intent of individual criminal responsibility is lacking. Gusman is the
acting Commander in chief of the armed forces, he appointed Commander Hanson to lead
Operation Blue because of the intelligence report about Nirvana carrying stocks of
weapon was reasonable because its purpose is to strictly implement the inspection and
regulation within the Maritime Controlled Zone. The mere possibility of the risk that a war
crime may arise between the marines and Nirvana does not suffice to ground criminal
responsibility.
C. COUNT 3: ADMIRAL TONY GUSMAN IS NOT CRIMINALLY
RESPONSIBLE

FOR

ORDERING

THE

WAR

CRIME

OF

INTENTIONALLY LAUNCHING AN ATTACK THAT WILL CAUSE

SEVERE DAMAGE TO THE NATURAL ENVIRONMENT.
Command or superior responsibility is often misunderstood. First, it is not a form
of objective liability whereby a superior could be held criminally responsible for crimes
committed by subordinates of the accused regardless of his conduct and regardless of what
his knowledge of these crimes. Nor is it a form of complicity whereby the superior is held
criminally responsible for some sort of assistance that he has given to the principal
perpetrators. Instead, superior responsibility is a form of responsibility for omission to act: a
superior may be held criminally responsible under that doctrine where, despite his
awareness of the crimes of subordinates, he culpably fails to fulfill his duties to prevent and
punish these crimes 15.
K. Ambos, Superior Responsibility, in A. Cassese et al., The Rome Statute of the
International Criminal Court: A Commentary, Volume 1, (Oxford: Oxford University Press,
15

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1. Admiral Tony Gusman Is Not Criminally Responsible For Intentionally

Launching An Attack That Will Cause Severe Damage To The Natural
Environment.
To hold a person criminally responsible under the doctrine of command responsibility
for an international crime, the prosecution must prove three legal elements (1) The existence
of a superior-subordinate relationship between the accused as superior and the perpetrator of
the crime as his subordinate;(2) That the superior knew or had reason to know that the crime
was about to be or had been committed; and (3) That the superior failed to take the necessary
and reasonable measures to prevent the criminal acts or punish the perpetrators thereof16.
In this case, Gusman merely gave Freedman a general order. It was Freedman who had
direct control of the military actions taken by the Astron forces. Gusman therefore, had no
immediate means to know the surrounding circumstances since Freedman had the direct
command on the ground.
Also, the actus reus of criminal responsibility requires the perpetrator to instruct
another person in any form to commit a crime 17. Instructing requires a positive action by the
person in a position of authority18. Gusman neither specifically ordered Captain Ardent
directly nor indirectly to cause oil spills and fires, despite his plan of taking all measure
possible to stall the enemy.
2. The Attack Did Not Cause Widespread, Long-Term And Severe Damage To
The Natural Environment Of Yukule

2002), 823.
16
Blaki Appeal Judgment, 484; Prosecutor v. Aleksovski, Case No. IT-95-14/1- A, Judgment,
Mar. 24, 2000
17
ICC, Prosecutor v. Gbagbo, ICC-02/1-01/11 (12 June 2014), para. 244.
18
ICTY, The Prosecutor v. Gali, Case No. IT-98-29-A (30 November 2006), para. 176
Page 9 of 14

Widespread is defined to encompass an area on the scale of several hundred square

kilometers19, long-term or long-lasting was interpreted as a matter of decades 20, and
severe is described to involve serious or significant disruption or harm to human life,
natural and economic resources or other assets21. The actual damage conclusion must be based
not only on reliable sources but also on various researches conducted objectively,
independently and in high expertise. The United Nations Environment Programme (UNEP)
reported that the oil spills could have a major impact on the massive reef habitation, but failed
to mention to which extent they spread and affect the habitation.
Besides, in November 2013, a study on coral reefs offshore Yukule concluded that
two-way analysis of variance between those oiled and non-oiled reefs showed no significant
differences. It can be inferred from the research that the damage lasted more than three years.
Since the incident but could not amount to a decade. Besides, Dr Sulivan from the Casa,
ensured that the damage to the marine environment in the region was not devastating.
Therefore, based on those diverse sources, the damage caused in the attack cannot be assumed
widespread, long-term and severe damage.
3.

Damage Was Not Clearly Excessive In Relation To The Concrete And Direct
Overall Military Advantage Anticipated

The word excessive does not refer to an absolute concept and it is always measured
in light of the military advantage that the attacker anticipates to attain through the attack22. It is
necessary to assess the importance of the target in relation to the incidental damage expected:
if the target is sufficiently important, a greater degree of risk to the environment may be
justified23.
Conference of the Committee on Disarmament, Understanding relating to Article 1 of the 1976
ENMOD Convention, UN Doc. A/31/27, 1976.
20
International Committee of the Red Cross (ICRC), Commentary on the Additional Protocols of
8 June 1977, 1987, para. 1452.
21
Conference of the Committee on Disarmament, Understanding relating to Article 1 of the 1976
ENMOD Convention, UN Doc. A/31/27, 1976.
22
The Turkel Commission The Public Commission to Examine the Maritime Incident of 31
May 2010, Report of the Commission for Examining the Maritime Incident of May 31, 2010 Part One, January 2010, para. 87.
23
ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO
Bombing Campaign Against the Federal Republic of Yugoslavia, para. 19.
19

Page 10 of 14

Here, Rear Admiral Freedman informed Gusman that he was unable to stop the
advancement of the Bereton Navy, even though Astron military forces had already been
mobilized and engaged the enemy on the high sea. In addition, after Astron warning was
widely given,Captain Ardent thus had no alternative but to depend on oil slicks to prevent
Bereton Navy from crossing the threshold of Yukule Island. Captain Ardent in defense of
Astros sovereignty over Yukule therefore decided to start the oil fires near Port Solferino
where the Bereton Navy headed in with the aim of not letting them arrive at the Port. Hence,
with a view to prevent the immediate threat of the opposing party over the sovereignty of his
country, Captain Ardent relied on the last resort: oil spills and oil fires and anticipated that
they could have assisted the achievement of Astron military purpose in such case of urgency.
Here, the anticipated degree of risk to the environment therefore may be justified.

4. Feasible Precautionary Measures Were Sufficiently Taken During The Attack

It has been emphasized that the obligations set out under AP I must be evaluated on
the basis of information that is reasonably available to the relevant decision maker at the time,
which will be influenced by the nature of the attack being carried out by the States military
force24. The term feasible should be understood to be practicable or practically possible,
taking into account all circumstances ruling at the time, including humanitarian and military
considerations

25

In this case, Astro and Captain Ardent did not take all the precautionary

measures regulated in AP I 26; however, they did take all the feasible measures to avoid and
minimize the damage in such imperative circumstance. In spite of the engagement between
two opposing naval forces on the sea, under the threat of disruption of the sovereignty, the
incident of discharging and burning oil occurred. Nonetheless, the incident took place on the
sea, where less people can be found than on the land. In fact, there were no recorded deaths in
the aftermaths the incident.

Dan Saxon, International Humanitarian Law and the Changing Technology of War, Martinus
Nijhoff Publishers, ISBN No. 978-9004229488, p. 166-167.
25
ICRC Study on Customary International Humanitarian Law, Rule 22; Explanation of San
Remo Manual, para. 46.3.
26
AP I, Art. 57; Art. 58
24

Page 11 of 14

V.

INDEX OF AUTHORITIES

TREATIES
Rome Statute of International Criminal Court
Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August
1949, Fourth Geneva Convention, 1949
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I and II) of 08 June 1977

JURISPRUDENCE
Prosecutor vs. Tadic(1995), Case No. IT-94-1-A, Judgment Trial Chamber, par. 84
Prosecutor v. Aleksovski, Case No. IT-95-14/1- A, Judgment, Mar. 24, 2000

Page 12 of 14

ICTY, Prosecutor vs Stanislav Galic, Trial Chamber I, IT-98-29-T (5 Dec 2003) par 58
ICTY, Prosecutor vs Strugar, Case No. IT-01-42-T (2005) par 311
ICC, Prosecutor v. Gbagbo, ICC-02/1-01/11 (12 June 2014), para. 244

BOOKS AND ARTICLES

France, LOAC Manual (ibid., 136); New Zealand, Military Manual (ibid., 138).
San Remo Manual, 102103 (ibid., 160); military manuals of Australia (ibid., 162),
Canada (ibid., 163), France (ibid., 165) and United States (ibid., 169).
Dan Saxon, International Humanitarian Law and the Changing Technology of War, Martinus
Nijhoff Publishers, ISBN No. 978-9004229488, p. 166-167.
ICRC Study on Customary International Humanitarian Law, Rule 22
The Turkel Commission, Report of the Commission for Examining the Maritime Incident of
May 31, 2010 - Part One, January 2010, para. 87.

Page 13 of 14

PRAYER FOR RELIEF

The Defendant respectfully requests the Honorable Court to deny the respective charges
anticipated against Admiral Tony Gusman.
Respectfully submitted,
Defendant

Page 14 of 14