11Defense

Prosecutor v. Hassan Amir

October 2015

TABLE OF CONTENTS
I.TABLE OF AUTHORITIES...............................................................................................4
II.STATEMENT OF FACTS................................................................................................5
The Republic of Alin is governed by the Revolutionary Party whose leader, Yousef Aflan,
seats as the President. The Republic's defense force (Alini Defense Force or ADF) is
led by General Hassan Amir. Aflan regime was marred by corruption, abuse of power,
arbitrary arrests and stringent restrictions on political activity and freedom of expression.
...........................................................................................................................................5
III.SUMMARY OF PLEADINGS.........................................................................................7
A.General Amir is not liable for the war crime of rape under the command
responsibility doctrine.....................................................................................................7
B.GENERAL AMIR BEARS NO CRIMINAL LIABILITY FOR THE WAR CRIME OF
THE ATTACK ON THE ISSF PERSONNEL...................................................................7
C.GENERAL AMIR BEARS NO CRIMINAL LIABILITY FOR THE WAR CRIME OF
KILLING THE PERSONNEL ON THE ISSF OUTPOST................................................7
IV.PLEADINGS..................................................................................................................7
A.GENERAL AMIR IS NOT LIABLE FOR THE WAR CRIME OF RAPE UNDER THE
COMMAND RESPONSIBILITY DOCTRINE..................................................................7
A.1.NATURE OF THE ARMED CONFLICT...............................................................7
A.2.General Amir is not liable for the war crime of rape under the command
responsibility doctrine.................................................................................................8
A.3.The alleged perpetrators did not invade the body of any of the victims..............9
A.4.There is no invasion of the body of the victims by the alleged perpetrators,
hence, there is no invasion committed by force, or by threat of force or coercion...11
A.5.Hasaan Amir is not liable on the basis of the command responsible doctrine...11
B.GENERAL AMIR BEARS NO CRIMINAL LIABILITY FOR THE WAR CRIME OF
THE ATTACK ON THE ISSF PERSONNEL ................................................................12
B.1.An international armed conflict existed in the Repubic of Alin from September
..................................................................................................................................12
B.2.General Hassan Amir is not liable of the war crime of intentionally directing
attacks against personnel, installations, material, units or vehicles involved in a
peacekeeping mission..............................................................................................13
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B.3.General Amir did not direct the attack................................................................13

B.4.By failing to observe impartiality, the ISSF Personnel lost their protective status,
and violated their peacekeeping mission in accordance with the UN Charter.........14
B.5.The intended object of the attack was not the ISSF Compound or Personnel,
but the ALA bases, a valid military object. ...............................................................15
B.6.By firing at the aircraft jets of the ADF, the ISSF lost the protection given to it
under the international law of armed conflict............................................................15
B.7.General Amir is not criminally liable as an individual, jointly with another or
through another person under Article 25 (3) (a).......................................................16
C.General Amir is not liable for the attack against ISSF outpost in suburban Orkan on
20 October 2013, on the basis of individual criminal responsibility. ...........................18
C.1.The perpetrator did not invite the confidence or belief of one or more persons
that they were entitled to, or were obliged to accord, protection under rules of
international law applicable in armed conflict...........................................................19
C.2.The perpetrator has no intention to betray that confidence or belief.................20
C.3. Such person or persons did not belong to an adverse party............................20
C.4.The conduct did not take place in the context of and was not associated with an
international armed conflict.......................................................................................20
C.5.The perpetrator was aware of factual circumstances that established the
existence of an armed conflict..................................................................................21
D.General Amir is not responsible for ordering, soliciting or inducing the commission
of war crime under Art. 25 (3) (b).................................................................................22
D.1.Actus reus .........................................................................................................22
D.2. Mens rea ..........................................................................................................22
V.PRAYER........................................................................................................................24

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TABLE OF AUTHORITIES
Cases
The Prosecutor v. Bahar Idriss Abu Garda......................................................................14
Statutes
Additional Protocol I........................................................................................................19
AP II.....................................................................................................................16, 20, 21
ICC-Elements of Crimes..................................................................................................20
Other Authorities
ICL Database and Commentaries...................................................................................17
ICTY Rulings
Kordic and Cerkez, (Appeals Chamber)..........................................................................23
Prosecutor v. Anto Furunzija, IT-95-17/1-T, 10 December 1998.....................................11
Prosecutor v. Gali, IT-98-29-T (5 December 2003),......................................................23
Prosecutor v. Kunarac, Kovac, and Vokovic,(Appeals Chamber), June 12, 2002..........22
Prosecutor v. Strugar.......................................................................................................16
Prosecutor v. Tadic, (Appeals Chamber),........................................................................22
ICTR Rulings
Katanga............................................................................................................................15
Katanga and Chui......................................................................................................16, 18
Prosecutor v. Bemba, para.350.......................................................................................17
Prosecutor v. Gbagbo, ICC-02/1-01/11 (12 June 2014...................................................23
Prosecutor v. Lubang.......................................................................................................18
Articles
Elements of War Crimes under the Rome Statute of the International Criminal Court
Sources and Commentary, Knut Dormann..................................................................20
http://www.peaceandjusticeinitiative.org/implementation-resources/commandresponsibility.................................................................................................................11

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______________________________________________________________________
STATEMENT OF FACTS

The Republic of Alin is governed by the Revolutionary Party whose leader,

Yousef Aflan, seats as the President. The Republic's defense force (Alini Defense Force
or ADF) is lead by General Hassan Amir. Aflan regime was marred by corruption, abuse
of power, arbitrary arrests and stringent restrictions on political activity and freedom of
expression.
In January 2013, around 5,000 Alinis staged an anti-government protest in Orkan City.
They were dispersed by the ADF, killing and injuring protesters on the process. The
government then imposed censorship on anti-government criticisms. Alin Liberation
Army (ALA) attacked the police and security forces and took control of the local
administrative council of South Orkan. The government, through General Amir,
launched an attack against ALA. Colonel Adada, who directly reports and takes order
from General Amir, led the attack.
In June 2013, the Alinis staged another anti-government protest in Orkan Town
Hall. They were dispersed by the ADF. Protesters were arrested and killed while others
were able to occupy the National Technical College (NTC). ADF unit entered NTC to
carry out search which resulted to violence. A demonstrator testified that she, together
with several other women, was repeatedly raped by ADF members before being
transferred to a detention facility. Two other women described that they were raped by
the soldiers following their arrest and detention. Human Rights Protection, an
international activist NGO, estimated that a number of women were victims of rape.

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In July 2013, the UN Security Council adopted Resolution X which authorizes,

among others, the establishment of an International Security Support Force (ISSF) for
the maintenance of security and protection of civilians from threat of attack in Alin.
President Aflan announced that he would comply with the said resolution.
In September 2013, ISSF arrived and established its base in Alin. There are,
however, some violent confrontations between ISSF and ADF as the latter launches
attacks in suspected ALA bases in civilian areas. In one incident, identified ADF soldiers
attacked ISSF base which injured and killed ISSF personnel.
On 18 October 2013, President Aflan stated that ISSF was deployed to facilitate
regime change and declared it no longer welcome in Alin. Eighteen days later, vehicles
approached ISSF outpost where passengers claimed themselves as civilians. When
these vehicles were to be inspected, the passengers threw explosives killing and
injuring ISSF soldiers.
In May 2014, Alin referred the situation in its territory on March to December
2013 to the ICC.

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______________________________________________________________________
SUMMARY OF PLEADINGS
A. NATURE OF ARMED CONFLICT
For the period of March to June 2013, there was no existing armed conflict. There was no
armed violence between States or protracted violence between governmental authorities and
organized armed groups or between such groups within Alin. However, for the period of July to
October 2013, there exists an international armed conflict. The ISSF was not a peace-keeping
force but was an international adversary combatants. There was, moreover, intervention of
foreign states.

B. GENERAL AMIR BEARS NO CRIMINAL RESPONSIBILITY FOR THE

WARCRIME OF RAPE.
There was no clear proof that an invasion of the body of victim was committed. What
was only available is the uncorroborrated statements of the alleged victims. Assuming that such
invasion was committed, there was no proof that there was violence or threat of force or coercion
used to commit such. Moreover, General Amir cannot be held criminally reponsible since there
was cession of his effective command and control over Colonel Adada.
C. GENERAL AMIR BEARS NO CRIMINAL RESPONSIBILITY FOR THE
WARCRIME OF ATTACKING ISSF PERSONNEL.
The ISSF ceases its protection when it took direct part in the hostilities. The protection
afforede to civilians, thus, cannot apply to this entity. Moreover, there is no causal link between
the General Amir and the attack being the perpetrator is not conclusively identified.

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D. GENERAL AMIR BEARS NO CRIMINAL RESPONSIBILITY FOR THE

WARCRIME OF KILLING AND TREACHEROUSLY WOUNDING COMBATANT
ADVERSARIES.
There was an absence of confidence or belief because upon approaching of the alleged
perpetrators in the outpost, they were ordered to be inspected. Assuming, however, that the crime
was committed, General Amir cannot be hel responsible. The alleged perpetrators were not ADF
members over whom he has effective command and control. Moreover, he has no prior
knowledge nor intention to launch such attack.

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______________________________________________________________________
PLEADINGS

I. GENERAL AMIR IS NOT LIABLE FOR THE WAR CRIME OF RAPE UNDER THE
COMMAND RESPONSIBILITY DOCTRINE.

A. NO ARMED CONFLICT EXISTS.

An armed conflict is said to exist whenever there is a resort to
armed force between States or protracted violence between governmental
authorities and organized armed groups or between such groups within a
State.1, In this case2, a search for demonstrators was just conducted by
the ADF, which eventually led to acts of violence. The subject of ADF
which leads them to conduct a search on NTC building is considered as
civilians, as provided insofar as to their classification and participation on
the said incident.

B. GENERAL AMIR HAS NO EFFECTIVE COMMAND AND CONTROL OVER THE

PERPETRATORS.
Military commander or person effectively acting as a military
commander shall be criminally responsible for crimes committed by forces
under his or her effective command and control (Article 28 (a), Rome

1
Prosecutor vs. Tadic. IT-94-1-A.
2
Facts of the Case Paragraph 10.
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Statute), or effective authority and control. In this case, 3 Amir did not have
effective command and control over the alleged perpetrators in the latters
commission of the war crime of rape.

C. ADF MEMBERS DID NOT INVADE THE BODY OF ANY VICTIMS

The perpetrator must invade the body of a person by conduct
resulting in penetration, however slight, of any part of the body of the
victim or of the perpetrator with a sexual organ, or of the anal or genital
opening of the victim with any object or any other part of the body (article
8 2 e iii, eoc). The relevant paragraph makes no mention of ADF members
to have committed such act. What was only available was the
uncorroborrated statements of the alleged victims (para 10, compromis).

D. ALTERNATIVELY, THE INVASION WAS NO COMMITTED BY FORCE OR BY

THREAT OF FORCE OR COERCION.
The second element of rape as war crime is that the invasion was
committed by force, or by threat of force or coercion, such as that caused
by fear of violence, duress, detention, psychological oppression or abuse
of power, against such person or another person, or by taking advantage
of a coercive environment, or the invasion was committed against a
person incapable of giving genuine consent (article 8 2 e iii, eoc). In this
case, there was no use of force nor threat of force or coercion used by the
ADF members (para 10, compromis).
3
Facts, Par.10
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E. GENERAL AMIR IS NOT CRIMINALLY LIABLE ON THE BASIS OF COMMAND

RESPONSIBILITY DOCTRINE.
i. General Amir has no effective control over Colonel Adada.
Assuming arguendo that the member of the ADF units committed the
imputed crime, still, General Amir cannot be held criminally responsible.
Although there was a hierarchical structure (Semanza, trial chamber, para 401),
General Amir lost effective control over Colonel Adada (para 8, compromis).
ii. There is no longer superior-subordinate relationship between
General Amir and Colonel Adada.
Effective control is an essential element of superior-subordinate
relationship. In the absence of such, this relationship ceases to exist. In this case,
superior-subordinate relationship ceases (para 8 and 11, compromis).

II. GENERAL AMIR BEARS NO CRIMINAL LIABILITY FOR THE WAR CRIME OF
THE ATTACK ON THE ISSF PERSONNEL

A. THERE EXISTS AN INTERNATIONAL ARMED CONFLICT

Armed conflict exists whenever there is a resort to armed force
between States or protracted armed violence between governmental
authorities and organised armed groups or between such groups within a
State.4 The attacks of ISSF compound took place in the context of an
4
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international armed conflict. There is a resort to armed force and violence

between the Republic of Alin and ISSF5 whose members composed of Blin
and Clin, and seven other countries citizens. The said countries
contributed to the manpower of ISSF.

B. GENERAL AMIR DID NOT DIRECT THE ATTACK.

The requirement that the perpetrator directed the attack indicates
that, for this particular crime, a causal link between the perpetrators
conduct and the consequence is necessary, so that the concrete
consequence, the attack in this case,

can be seen as having been

caused by the perpetrator. 6

In this case, there is no causal link between the perpetrator and the
attack. The group who allegedly attacked 7 ISSF was not identified. The
statements of the ISSF soldiers regarding the identification of assailants
belonging to ADF and that they witnessed the presence of Colonel Adada

Tadic Appeals, 70.

5
Facts, par.12
6
The Prosecutor v. Bahar Idriss Abu Garda, 66-67.
7
Facts, pars 16 and 19
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outside the compound is self-serving. Alternatively, if the same were true,

Adadas mere presence8 does not impute to him the said attack9.

C. ISSF Personnel lost their protective status.

UN peacekeeping operations must implement their mandate
without favour or prejudice to any party. Impartiality is crucial to
maintaining the consent and cooperation of the main parties. United
Nations peacekeepers should be impartial in their dealings with the parties
to the conflict.10 It is very evident on the part of the ISSF that it failed to
observe impartiality by siding to ALA.11
ISSF also took direct part on the hostilities. Examples of this act
are: bearing, using or taking up arms, taking part in military or hostile acts,
activities, conduct or operations, armed fighting or combat, participating in
attacks against enemy personnel, property or equipment, transmitting
military information for the immediate use of a belligerent, and transporting

8
Facts, par. 17
9
Facts, par. 16
10
Abu Garda, 73.
11
Facts,s par. 19 and 21
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weapons in proximity to combat operations. 12 In this case, ISSF fired antiaircraft machineguns at the fighter jets of ADF.

D. THE INTENDED OBJECT OF THE ATTACK WAS ALA BASES.

The perpetrator must intend to make individual civilians not taking

direct part in the hostilities or the civilian population, the object of the
attack.13 In this case, the ISSF compound is not intended to be the object
of the attack of ADF but the ALA bases near the ISSF.14

E. GENERAL AMIR IS NOT CRIMINALLY RESPONSIBLE AS AN INDIVIDUAL,

JOINTLY WITH ANOTHER OR THORUGH ANOTHER PERSON.
Assuming, the crime was committed, still, General Amir cannot be
held individually responsible.
i. Criminal responsibility as an individual
To be held responsible as an individual, it must be act of his own
without relying or using another person. 15 General Amir was not near the
12
Prosecutor v. Strugar, 177
13
Katanga and Chui, 271.
14
Facts, par. 15
15
ICL Database and Commentaries
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compound, thus, there is nothing that proves that he took

part

in

the attack.16

ii. Criminal responsibility as co-perpetrator.

In Bemba17, co-perpetrator requires proof of two objective
elements: (i.) suspect must be part of a common plan or an agreement
with one or more person; and (ii.) the suspect must carry out essential
contribution in a coordinated manner which resulted in the fulfillment of the
material elements of the crime.
Lubang18 also requires the objective elements and further adds
subjective elements which includes (i) the accused was aware that by
implementing the common plan, the criminal consequences would occur
in the ordinary course of events;(ii) the accused was aware that he
provided an essential contribution to the implementation of the common
plan; and iii) the accused was aware of the factual circumstances that
established the existence of an armed conflict, and of the link between
these facts and his conduct.
Prior to the attack to the ISSF compound, there is no common plan
or agreement between General Amir and the ADF or Colonel Adada to
16
Facts, par.17
17
Prosecutor v. Bemba, par.350
18
Prosecutor v. Lubang, para.1008
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launch an attack. Even though General Amir is the head of ADF 19, there
is no direct order coming from him to direct an attack to the ISSF
compound.
iii. Criminal responsibility through another person
This requires more than inducing or soliciting a person, he must act
as a mastermind. Principal must use the executor as a tool or an
instrument for commission of the crime. 20 In this case, General Amir did
not give directives or act as a mastermind in executing the acts. Moreover,
General Amir's relationship with Colonel Adada is increasingly becoming
frictional and acrimonious.21

19
Facts, par.1
20
Prosecutor v. Katanga and Chui, para. 480-486
21
Facts, par.7
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III. GENERAL AMIR IS NOT LIABLE FOR THE ATTACK AGAINST ISSF
PERSONNEL ON THE BASIS OF INDIVIDUAL CRIMINAL RESPONSIBILITY.

A. THE PERPETRATOR DID NOT INVITE THE CONFIDENCE OR BELIEF OF ONE

OR MORE PERSONS THAT THEY WERE ENTITLED TO, OR WERE OBLIGED TO
ACCORD, PROTECTION UNDER RULES OF INTERNATIONAL LAW APPLICABLE
IN ARMED CONFLICT.
Civilians are all persons who do not take a direct part or who have
ceased to take part in hostilities, whether or not their liberty has been
restricted, are entitled to respect for their person, honour and convictions
and religious practices. They shall in all circumstances be treated
humanely, without any adverse distinction. 22 Civilians shall enjoy the
protection afforded by this Part, unless and for such time as they take a
direct part in hostilities.23 In this case, there is no such confidence or belief
because upon approaching of the passengers of four cars and minivans, Colonel
Crown, the ISSF Commander ordered a search of the vehicles to ensure no
weapons or dangerous items were hidden, before the group could be allowed to
take shelter.24

B. PERPETRATORS ARE NOT ADF MEMBERS.

22
Additional Protocol II, Article 4(1)
23
Additional Protocol II, Article 13 (3)
24
Facts, Paras. 22-23
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The perpetrators are militants whom General Amir had no control.

Human Rights Protection report stated that the attack was carried out by
an ADF unit which had broken away from the ADF. 25

C. THE CONDUCT TOOK PLACE IN THE CONTEXT OF AND WAS ASSOCIATED

WITH AN INTERNATIONAL ARMED CONFLICT.

International armed conflict exists whenever there is a resort to

armed force between States.

26

The attacks of ISSF outpost took place in

the context of an international armed conflict. There is a resort to armed

force and violence between the Republic of Alin and ISSF whose
members composed of Blin and Clin27, and seven other countries citizens.
The said countries contributed to the manpower of ISSF.

D. THE PERPETRATOR WAS NOT AWARE OF FACTUAL CIRCUMSTANCES THAT

ESTABLISHED THE EXISTENCE OF AN ARMED CONFLICT.
In Kordic and Cerkez that, the nullum crimen sine lege principle
does not require that an accused knew the specific legal definition of each
element of a crime he committed. It suffices that he was aware of the
factual circumstances. 28In the facts, General Amir had no prior knowledge
25
Facts, Par. 24
26
Prosecutor v. Kunarac, Kovac, and Vokovic,(Appeals Chamber), June 12, 2002,
para. 56.
27
Facts, par.12
28
Kordic and Cerkez, (Appeals Chamber), December 17, 2004, para. 311
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of the attack. He had no control over the militants. They were former ADF
members who had broken away from the ADF. 29

E. GENERAL AMIR IS NOT RESPONSIBLE FOR ORDERING, SOLICITING OR

INDUCING THE COMMISSION OF WAR CRIME.
An action of a perpetrator satisfying the hereafter actus reus and
mens rea elements could be accused of criminal responsibility. 30
Actus reus requires: (i) the perpetrator was in position of authority,31
(ii) the perpetrator instructed another to commit an offence, 32and (iii) his
instruction had a direct effect on the commission of the crime. Mens rea
requires the perpetrator: (i) meant to instruct another to commit an
offence; and (ii) was aware that the crime would be committed in the
ordinary course of events as the consequence of his instructions. In this
case, General Amir had no prior knowledge of the attack and those assailants were
militants over whom he had no control. The Human Rights Protection report
stated that the attack was carried out by an ADF unit which had broken away from
the ADF.

______________________________________________________________________
PRAYER FOR RELIEF
______________________________________________________________________
29
Facts, Par. 24
30
ICC, Prosecutor v. Gbagbo, ICC-02/1-01/11 (12 June 2014), para. 244.
31
ICTY, Prosecutor v. Gali, IT-98-29-T (5 December 2003), para. 59.
32
ICTY, Prosecutor v. Gali, IT-98-29-T (5 December 2003), para. 59.
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It is respectfully prayed for the ICC not to confirm the respective charges
against General Hassan Amir.

Respectfully submitted,
The Defense

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