2015 NATIONAL MOOT COURT COMPETITION

ON INTERNATIONAL HUMANITARIAN LAW

INTERNATIONAL CRIMINAL COURT

THE PROSECUTOR

v.

HASSAN AMIR

_____________________________

MEMORIAL FOR THE DEFENSE

_____________________________

TEAM NUMBER: 13

WORD COUNT PLEADINGS: 3942

Page 1 of 23
 Table of Contents

INDEX OF AUTHORITIES........................................................................................................3
STATEMENT OF FACTS...........................................................................................................5
SUMMARY OF ARGUMENTS..................................................................................................8
PLEADINGS AND AUTHORITY............................................................................................11
PRELIMINARY FINDINGS.....................................................................................................11
I. THE ALLEGED WAR CRIME OF RAPE OCCURRED DURING AN INTERNAL
DISTURBANCE OR TENSION............................................................................................11
A. The act of rape as a war crime allegedly committed by the ADF Units took place
during an internal disturbance or tension............................................................................11
II. THE NIAC IN ALIN COMMENCED ON APRIL 2013 UNTIL DECEMBER 2013......13
DEFENSES TO THE CHARGES..........................................................................................15
I. WAR CRIME OF RAPE.....................................................................................................15
A. The elements of the war crime of rape have not been substantiated.............................15
i. No identifiable perpetrator to show that there was bodily penetration of the victims;
that there was invasion under force or threat of force or in a coercive environment; that
there was awareness of the factual circumstances that established the existence of an
armed conflict.................................................................................................................15
ii. There is no nexus of the alleged war crime of rape to an armed conflict not of an
international character....................................................................................................16
B. General Amir is not responsible as the commander under Article 28(a).......................16
i. No criminal liability under command responsibility arises when perpetrators of the
alleged crime have neither been identified nor convicted..............................................16
ii. General Amir had no effective command and control or authority and control.........16
II. WAR CRIME OF INTENTIONALLY DIRECTING ATTACK AGAINST PERSONNEL
INVOLVED IN PEACEKEEPING MISSIONS IN ACCORDANCE WITH THE
CHARTER OF THE UNITED NATIONS.............................................................................17
A. The required elements were not all satisfied..................................................................17
i. The ISSF personnel is not involved in a peacekeeping mission in accordance with the
Charter of the United Nations.........................................................................................17
B. General Amir is not individually responsible under Art. 25(3)(a).................................18
i. General Amir did not directly commit the crime charged............................................19
ii. No sufficient evidence of co-perpetration...................................................................19
iii. No commission of crime through another person......................................................19

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 III. WAR CRIME OF KILLING OR WOUNDING TREACHEROUSLY A COMBATANT
ADVERSARY........................................................................................................................20
A. The required elements of the crime of treachery or perfidy were not established.........20
i. No intent to betray that confidence or belief of one or more persons that they are
entitled to protection.......................................................................................................20
ii. The perpetrator did not make use of that confidence or belief and did not kill or
injure such person or persons.........................................................................................21
B. General Amir is not individually responsible under Art. 25(3)(a).................................21
i. The order had no direct effect on the commission of the crime...................................21
ii. No awareness that the war crime of treacherously killing or wounding a combatant
adversary would be committed.......................................................................................22
CONCLUSION/PRAYER FOR RELIEFS................................................................................22

Page 3 of 23
 INDEX OF AUTHORITIES
TREATIES

Additional Protocols I and II of 1977 to the Geneva Conventions of 12 August 1949

Charter of the United Nations

Convention on the Safety of United Nations and Associated Personnel

Geneva Conventions of 1949

Statute of the International Criminal Court

JURISPRUDENCE

Prosecutor v. Akayesu Judgment, Case No. ICTR-96-4-T, Trial Chamber 1, 2 September 1998

Kamuhanda v. The Prosecutor, Case No. ICTR-99-54AA, Judgement, 19 September 2005

Prosecutor v. Bemba, Case No. ICC-01-05-01-08, Decision (Pre-Trial Chamber), 15 June 2009

Prosecutor v. Katanga, (Case No. ICC-01/04-01/07), ICC T. Ch. II, ICC-01/04-01/07-3436,

Judgment, 7 March 2014

Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-A, Appeal Judgement, 1 June
2001

Prosecutor v. Kordic, Case No. IT-95-14/2-A, Appeal Judgment, 17 December 2004

Prosecutor v. Limaj, Case No. IT-03-66-T, Judgment (Trial Chamber), 30 November 2005

Prosecutor v. Lubanga, ICC T. Ch. I, Judgment, 14 March 2012

Prosecutor v. Lubanga, ICC PT. Ch. I, ICC-01/04-01/06-803, 29 January 2007

Prosecutor v Mudacumura, ICC-01/04-01/12, PT Ch II, 13 July 2002

Prosecutor v. Ntaganda, (Case No. ICC-01/04-02/06), ICC PT. Ch. II, Decision on the
Confirmation of Charges, ICC-01/04-02/06-309, 9 June 2014

Prosecutor v Ori , Case No. IT-03-68-A, Judgment, Appeal Chamber, 3 July 2008

Prosecutor v. Tadic, Case No. IT-94-1-T, Judgment (Trial Chamber), 7 May 1997

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BOOKS, JOURNALS, AND PUBLICATIONS

Ambos, Kai. Superior Responsibility, in Otto Cassese (ed.), The Rome Statute of the
International Criminal Court A Commentary, Oxford University Press, 2002

Coleman, K. International Organisations and Peace Enforcement. The Politics of International

Legitimacy. Cambridge University Press As of 2012

Elements of Crimes. Official Records of the Assembly of States Parties to the Rome Statute of
the International Criminal Court, First Session, New York, 3-10 September 2002. UN
Publications Sales No. E.03.V.2 and Corrigendum, Part II B

Findlay, T. The use of Force in UN Peace Operations. SIPRI, Oxford University Press 2002. As
of 2012

ICRC, Protection of Victims of Non-International Armed Conflicts, Document presented at the

Conference of government experts on the reaffirmation and development of international
humanitarian law applicable in armed conflicts, Vol. V, Geneva, 24 May12 June 1971

Maier, Nicole. The Crime of Rape Under the Rome Statute of the ICC: with a Special Emphasis
on the Jurisprudence of Ad Hoc Tribunals. Amsterdam Law Forum, Vol 3:2. VU University
Library, 2014

Roxin, Claus. Goltdammer's Archiv fr Strafrecht. 1963

United Nations General Assembly - Security Council, "Report of the Panel on United Nations
Peace Operations", A/55/305-S/2000/809, 21 August 2000

United Nations (UN) Peacekeeping PDT Standards. Specialized Training Material for Police 1st
edition, 2009

Vite, Sylvain. Typology of Armed Conflict in International Humanitarian Law, Legal Concepts
and Actual Situations, International Review of the Red Cross, Vol 91, Number 873 March 2009

Weiner, Philip. The Evolving Jurisprudence of the Crime of Rape in International Criminal Law.
Boston College Law Review, Vol 54, Issue 3. 23 May 2013

Y. Sandoz et al. (eds). Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949
Page 5 of 23
 STATEMENT OF FACTS

Yousef Aflan, leader of the ruling Revolutionary party, is the current president of the
Republic of Alin since his election in 2010. His administration was exercised with corruption,
abuse of power, arbitrary arrest and stringent restrictions on political activity and freedom of
speech.

Disappointed with its government, an estimated 5,000 protesters turned up at Liberation

Square in Orkan City on January 15, 2013. Protesters called for the immediate resignation of
President Alin.

On March 15, 2013, a militant group attacked the police and security forces in southern
Orkan and took control of a local administrative council. Colonel Aziz Nur, leader of the Alin
Liberation Army (ALA), announced in the media that ALA is a voluntary force striving for a
free Alin through armed struggle. Colonel Nur also called for President Aflans resignation.

President Aflan, in consultation with General Hassan Amir a close political ally, and
head of the Alini Defense Army (ADF) launched an attack against the ALA. The ADF troops in
Orkan is commanded by Colonel Adada who is a popular figure among the troops and who
directly reports to General Amir.

To regain control over the city, the government of Alin declared martial law in Orkan.
General Amir, invoking its martial law power, prohibited the demonstration of local activists and
instructed ADF to take necessary measures to prevent it.

On June 13, 2013, around 2000 residents gathered to demonstrate towards the Town Hall.
As they approached, ADF used tear gas and plastic bullets to disperse the crowd. Some
demonstrators with concealed weapons attacked the ADF soldiers. The demonstration ended with
the arrest of some demonstrators but 200 of them also succeeded in occupying the National
Technical College (NTC) Building.

Thereafter, ADF units searched the NTC which resulted in violence. A demonstrator later
testified that she was taken with several other women to the basement where they were raped
repeatedly before being transferred to a detention facility. Two other women were arrested
outside the NTC, detained, and was raped before they were released the following morning. The

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week following the demonstration, the ADF raided a number of homes and arrested persons
suspected of participation in the demonstration or supporting the ALA. Al Jazeera and BBC
reported several incidents of rape, and sexual violence perpetrated by pro-government militants.

The ADF bombed alleged ALA bases, including residential areas where ALA militants
were suspected to be. The humanitarian situation in Alin drew attention in the international
community. UN Secretary-General condemned the number of civilian casualties in the country.
On July 10, 2013, the UN Secretary General called on all parties in Alin to exercise restraint in
the use of force and warned of an impending humanitarian crisis. On July 20, the UN Security
Council adopted Resolution X. The resolution demanded cease-fire and complete end to violence
and attacks against civilians. It also authorized the establishment of the International Security
Support Force (ISSF) to protect civilians and civilian populated areas.

President Aflan announced that the government would comply with Resolution X and
would implement cease-fire and allow the deployment of the ISSF in Alin. The ISSF was
mandated to protect the civilian population and ISSF non-military personnel. Blin and Clin, and
other neighboring countries contributed to the ISSF components. The Protection Force Unit
(PFU) of the ISSF later had several encounters with ADF as the latter were firing at areas where
civilians were concentrated.

On September 15, 2013, ADF fighter jets attacked suspected ALA bases in civilian areas
near the ISSF compound. ISSF immediately requested General Amir to cease the attack after the
shells landed on civilian buildings but it went unheeded. Subsequently anti-aircraft machineguns
fired at the fighter jets from the ISSF compound. After sunset of the same day, a group of around
one hundred armed assailants attacked the ISSF base, the PFU sustained the most casualties.
Many ISSF soldiers said they were able to identify the assailants as the ADF. Colonel Adada was
also spotted outside the compound during the attack. Both ADF and ALA blamed each other for
the attack. President Aflan blamed the ISSF for siding with the ALA. On September 20, 2013, a
meeting was held between General Amir and Colonel Adada, the latter was spotted in the region
for a few days, supervising ADF operations.

On October 2, ISSF received intelligence that ADF was increasing its air strikes. Blin and
Clin intervened by bombing two major air bases thus immobilizing most of ADFs air forces.
President Aflan stated that the international force was deployed to facilitated regime change in

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violation of its state sovereignty and that the latter was no longer welcome in the country and
should leave immediately.

In Orkan, on October 4, the ISSF repelled ADFs advances to protect civilians from the
effect of hostilities. The ISSF also gave military and law enforcement trainings to the ALA
members. The ISSF and ALA shared intelligence when necessary while communication with
ADF was reduced to minimum.

In a meeting held on October 15, General Amir demanded that measures be taken to end
the illegal occupation of the international force.

On October 20, four cars and a minivan approached the ISSF outpost with around twenty
passengers who claimed to be civilians. The passengers told the ISSF that ADF suspected them
of supporting ALA, and that they wished to take shelter in the ISSF station. As the vehicles were
instructed to drive into a certain area for inspection, the vehicles suddenly drove at the ISSF
members and opened fire. Grenades and explosives were thrown in the buildings and personnel.
After their capture, some of the attackers admitted that they were members of ADF. The ISSF
requested the Alini government to ensure that the attackers were held responsible. General Amir
denied knowledge of the attack and that he had no control over the assailants. However in an
interview with the leader of the group of assailants, Imad Mousse, he stated that the attack was
planned and coordinated with the ADF and that he was personally greeted by Colonel Adada for
the success of the operations.

On December 6 President Aflan stepped down and upon the end of hostilities, a new
election has held wherein Aziz Nur was elected president of Alin. Alin referred the situation in its
territory from March to December 2013 to the ICC. On August 20, 2014, General Amir was
surrendered by Alin to the ICC.

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 SUMMARY OF ARGUMENTS
I. The alleged war crime of rape occurred during an internal disturbance or tension and
the non-international armed conflict (NIAC) in Alin only commenced on April 2013 until
December 2013
II. The elements of the war crime of rape has not been substantiated and the alleged acts
cannot be charged to General Amir under command responsibility
A. Elements of the war crime of rape has not been substantiated
i. No identifiable perpetrator to show that there was bodily penetration of the victims; that
there was invasion under force or threat of force or in a coercive environment; that there
was awareness of the factual circumstances that established the existence of an armed
conflict
ii. There is no nexus of the alleged war crime of rape to an armed conflict not of an
international character.
B. General Amir is not responsible as the commander under Article 28(a)
i. No criminal liability under command responsibility arises when perpetrators of the
alleged crime have neither been identified nor convicted
ii. General Amir had no effective command and control or authority and control
III. War crime of intentionally directing attack against personnel involved in peacekeeping
missions in accordance with the charter of the United Nations has not been substantiated
and the alleged acts cannot be charged to General Amir under individual responsibility
A. The required elements were not all satisfied
i. The ISSF personnel is not involved in a peacekeeping mission in accordance with the
Charter of the United Nations because the personnel, installations, material, units or
vehicles were not entitled to that protection given to civilians under the international law
of armed conflict.
B. General Amir is not individually responsible under Art. 25(3)(a)
i. General Amir did not directly commit the crime charged.
ii. No sufficient evidence of co-perpetration because there was no agreement or common
plan and no coordinated contribution by each co-perpetrator.

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IV. War crime of killing or wounding treacherously a combatant adversary has not been
substantiated and the alleged acts cannot be charged to General Amir under individual
responsibility
A. The required elements of the crime of treachery or perfidy were not established
i. No intent to betray that confidence or belief of one or more persons that they are
entitled to protection
ii. The perpetrator did not make use of that confidence or belief and did not kill or injure
such person or persons
B. General Amir is not individually responsible under Art. 25(3)(a)
i. There was no order from General Amir that had direct effect on the commission of the
crime
ii. No awareness that the war crime of treacherously killing or wounding a combatant
adversary would be committed

Page 10 of 23
 PLEADINGS AND AUTHORITY

PRELIMINARY FINDINGS

I. THE ALLEGED WAR CRIME OF RAPE OCCURRED DURING AN INTERNAL

DISTURBANCE OR TENSION

A. The act of rape as a war crime allegedly committed by the ADF Units took place during
an internal disturbance or tension
An armed conflict not of an international character is characterized by two fundamental criteria:
(a) the intensity of the violence and (b) the organization of the parties 1. When one or other of
these two conditions is not present, the conflict fails to meet the minimum threshold of a non-
international armed conflict and is, at most, considered as an internal disturbance or tension.

The ICRC considered that internal disturbances are situations in which there is no non-
international armed conflict as such, but there exists a confrontation within the country, which is
characterized by a certain seriousness or duration and which involves acts of violence. These
latter can assume various forms, all the way from the spontaneous generation of acts of revolt to
the struggle between more or less organized groups and the authorities in power. In these
situations, which do not necessarily degenerate into open struggle, the authorities in power call
upon extensive police forces, or even armed forces, to restore internal order. 2As for internal
tensions, they cover less violent circumstances involving, for example, mass arrests, a large
number of political detainees, torture or other kinds of ill-treatment, forced disappearance
and/or the suspension of fundamental judicial guarantees.3

i. Low intensity of violence

What took place in Alin did not reach a certain level of intensity to qualify as an armed conflict
not of an international character in as much as they were at most manifestations of social unrest
and isolated acts of revolt which the Republic of Alin has every right to respond to with force to
restore internal order:
1
ICTY, Prosecutor v. Tadic, Case No. IT-94-1-T, Judgment (Trial Chamber), 7 May 1997, para
561568; Prosecutor v. Limaj, Case No. IT-03-66-T, Judgment (Trial Chamber), 30 November
2005, para 170
2
ICRC, Protection of Victims of Non-International Armed Conflicts, Document presented at the
Conference of government experts on the reaffirmation and development of international
humanitarian law applicable in armed conflicts, Vol. V, Geneva, 24 May12 June 1971, p. 79
3
Y. Sandoz et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949, para 4476
Page 11 of 23
 When 5,000 protesters turned up at Liberation Square in Okran on 15 January 2013
resulting to the death of 20 persons and unknown number of injuries4
When 2,000 protesters gathered in North Okran, resulting in the death of 8 persons (2
ADF soldiers and 6 protesters), the arrest of 150 protesters, and the alleged rape of three
women on 13 June 20135

The extent of the violence reached in Okran as shown by the number of victims (dead, wounded,
displaced persons, etc.) when taken into account, is not of sufficient gravity as to justify its
classification as a non-international armed conflict.

ii. Low level of organization of the ALA

For non-governmental armed groups, the indicative elements that need to be taken into account
include, the existence of an organizational chart indicating a command structure, the authority to
launch operations bringing together different units, the ability to recruit and train new
combatants or the existence of internal rules.

In the case of ALA, there is an absence of a command structure sophisticated enough to launch
operations as it consists merely of a voluntary force6 and irregular number of supporters who
took independent action without direction from the ALA like the protest they staged in North
Okran on 13 June 2013 which was coordinated by said supporters through social media
channels7 which escalated into the occupation of the NTC Building by 200 demonstrators
without involvement of the ALA8. In fact, the supporters, although sympathetic to the ALA
cause, nonetheless did not advocate the use of violence by the ALA9.

II. THE NIAC IN ALIN COMMENCED ON APRIL 2013 UNTIL DECEMBER 2013

4
Moot Problem, Para 3
5
Moot Problem, Para 9-10
6
Moot Problem, Para 5
7
Moot Problem, Para 7
8
Moot Problem, Para 9
9
Moot Problem, Para 7
Page 12 of 23
The ICC has stated that (1) the nature of a conflict can change over time 10 and (2) conflicts of
different nature can take place on the same territory 11. As a result any determination of the
qualification of an armed conflict must be based on an evaluation of the facts at the relevant
time.

The intensity of violence and organization of the ALA met the threshold requirement for NIAC
on April 2013 and lasted until the hostilities ended on December 2013.

i. The hostilities were between governmental authorities and organized armed groups.

An armed conflict between Alini Defense Forces (ADF) and the Alin Liberation Army (ALF)
took place in several periods in Okran:

In April 2013 launch of offensive in the southern part of the country when the Air
Defense Force bombed alleged ALA bases including residential areas where ALA
militants were suspected to be12
On 4 October 2013 intensified ground battle of the ADF against both the ISSF and
ALA to prevent ADFs advancement to the south13
On 20 October 2013 intense exchange of fire in suburban Orkan between ADF and
ALA and the surprise attack of the ISSF station by ADF members14

And in the city of Astor where the International Security Support Force (ISSF) established its
main base:

On September 2013 resumption of fighting between the ADF and ALA two weeks after
the arrival of the ISSF15
In 15 September 2013 attack against the ISSF compound16

ii. The conflict was protracted.

10
Prosecutor v. Katanga, (Case No. ICC-01/04-01/07), ICC T. Ch. II, ICC-01/04-01/07-3436,
Judgment, 7 March 2014, para. 1181
11
Prosecutor v. Lubanga, ICC T. Ch. I, Judgment, 14 March 2012, para. 540; Prosecutor v.
Katanga, ICC T. Ch. II, Judgment, 7 March 2014, para. 1174, 1182; Prosecutor v. Ntaganda,
(Case No. ICC-01/04-02/06), ICC PT. Ch. II, Decision on the Confirmation of Charges, ICC-
01/04-02/06-309, 9 June 2014, para. 33
12
Moot Problem, Para 12
13
Moot Problem, Para 21
14
Moot Problem, Para 22
15
Moot Problem, Para 14
16
Moot Problem, Para 15
Page 13 of 23
The conflict spanned eight months, longer even than the five months that the Court had declared
as protracted in Bemba17.

iii. The ALA was able to attain a sufficient degree of organization

In the case of ALA, it is a well-organized combatant force headed by Colonel Aziz Nur, who
later on became the elected President of Alin. The ALA was able to expand their control over
several towns in southern Orkan18, maintain bases in Orkan19 and in Astor20, receive military and
law enforcement trainings and operate intelligence networks21.

iv. The conflict reached a certain level of intensity.

After ALAs first attack on 15 March 2013, the government of Alin under President Aflan, in
consultation with General Amir, launched an all-out offensive to neutralize the ALA22. The ALA
was able to spread their control from several towns until it covered the southern part of the city
of Okran in just a short period of time (March to June 2013) with their public influence gaining
hold in North Okran23, prompting the Aflan government to declare martial law in Okran and its
suburbs24. The increase in the number of government forces is shown in: the deployment of ADF
forces to take all necessary measures to prevent and crush protest demonstrations in North
Okran25, and the use of ADF fighter jets to bomb ALA bases and residential areas where ALA
militants were suspected to be26 and the use of heavy weaponry like rocket-propelled grenades 27.
The conflict drew the attention of the international community leading to the adoption of the
United Nations Security Council of Resolution X to implement immediate ceasefire and to
establish the ISSF to protect the civilian population of Alin28.

17
Prosecutor v. Bemba, ICC PT. Ch. II, 15 June 2009, para. 255
18
Moot Problem, Para 6
19
Moot Problem, Para 12
20
Moot Problem, Para 15
21
Moot Problem, Para 21
22
Moot Problem, Para 6
23
Moot Problem, Para 5, Para 7
24
Moot Problem, Para 7
25
Moot Problem, Para 8
26
Moot Problem, Para 15
27
Moot Problem, Para 17
28
Moot Problem, Para 12
Page 14 of 23
 DEFENSES TO THE CHARGES

I. WAR CRIME OF RAPE

Article 8(2)(e) must be read in conjunction with subparagraphs (f) and Article 8(3), as a result
internal disturbances and tensions are not covered by subparagraph (e). Article 8(3) clearly states
that Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to
maintain or re-establish law and order in the State or to defend the unity and territorial integrity
of the State, by all legitimate means29 Acts committed in internal disturbances and tensions
cannot be prosecuted as war crimes and consequently, the war crime of rape charged against
General Amir under command responsibility must fail.

A. The elements of the war crime of rape have not been substantiated

i. No identifiable perpetrator to show that there was bodily penetration of the victims; that
there was invasion under force or threat of force or in a coercive environment; that
there was awareness of the factual circumstances that established the existence of
an armed conflict
The perpetrators knowledge and intent is material to prove that there was commission of the war
crime of rape. If such cannot be established, then the principal crime cannot be imputed to the
superior under command responsibility. The perpetrator has to be aware of the factual
circumstances that established the existence of an armed conflict 30 and there must also be intent
to penetrate the victims body and be aware that the penetration was by force or threat of force.

There being no identifiable perpetrator and due to the lack of factual description in this case, the
three elements of the crime cannot be proved. The reported incidents of sexual violence by the
Human Rights Protection, Al Jazeera, and BBC, in the absence of corroboration, is hearsay and
the evidentiary weight of which is lower than other evidence.

ii. There is no nexus of the alleged war crime of rape to an armed conflict not of an
international character.
The element that the rape should take place in the context of and be associated with an armed
conflict implies that the conduct could not have been committed but for the existence of the

29
Vite, Sylvain, Typology of Armed Conflict in International Humanitarian Law, Legal Concepts
and Actual Situations, International Review of the Red Cross, Vol 91, Number 873 March 2009,
page 81
30
Prosecutor v. Bemba, Case No. ICC-01-05-01-08, Decision (Pre-Trial Chamber), 15 June 2009,
Para 263
Page 15 of 23
armed conflict. Since there was no armed conflict that would fall within the scope of Article 8(2)
(e), then the conduct falls short of the threshold of rape as a war crime.

B. General Amir is not responsible as the commander under Article 28(a)

i. No criminal liability under command responsibility arises when perpetrators of the alleged
crime have neither been identified nor convicted
For criminal liability to arise under Article 28(a), the principal crime must have been committed
by identified subordinates who have been convicted of the crime. Even if the actus reus of the
crime has been perpetrated, nevertheless, since the primary perpetrator has not been identified or
convicted for the crime, it cannot be fully proven that all the elements of the crime are fulfilled
especially the mental element of intent and knowledge. If the material elements of the crime
cannot be established, then the crime cannot be considered as committed so as to charge General
Amir with command responsibility. In the Ori case the Appeals Chamber held that
notwithstanding the degree of specificity with which the culpable subordinates must be
identified, in any event, their existence as such must be established. If not, individual criminal
liability under Article 7(3) of the Statute cannot arise.31

In this case, the perpetrators of the war crime of rape have not been clearly identified, but only
the circumstances surrounding the arrest, detention and rape of the women by an ADF unit 32
were alleged.

ii. General Amir had no effective command and control or authority and control
A person who formally has been assigned the authority to issue orders may nevertheless have
lost control of the subordinates in real life. Despite attempts to make the subordinates adhere to
his/her orders, the commander might not be able to reach them.33

It was not General Amir who had control, instead, it was Colonel Adada, the ADF commander in
Orkan, whom the ADF Units swore loyalty and answered to 34. General Amir and Colonel Adada
had a reported disagreement over the operational strategy to prevent the demonstration in North

31
ICTY, Prosecutor v Naser Ori , Case No. IT-03-68-A, Judgment (Appeal Chamber), 3 July
2008, Para 35
32
Moot Problem, Para 10
33
Ambos, Kai. Superior Responsibility, in Otto Cassese (ed.), The Rome Statute of the
International Criminal Court A Commentary, Oxford University Press, 2002, pp. 857.
34
Moot Problem, Para 6
Page 16 of 23
Orkan35 and as early as July 2013, the relations between them was becoming increasingly
frictional and acrimonious36. General Amirs loss of control over the ADF Forces is shown
further by the Human Rights Protection report which stated that the attack against the ISSF was
probably carried out by a breakaway faction of the ADF and the leader of the group, Imad
Mousse, declared in an interview with Al Jazeera that it was Colonel Adada who personally
greeted him for the success of the attack. General Amir personally disavowed prior knowledge
and control of the said surprise attack37.

II. WAR CRIME OF INTENTIONALLY DIRECTING ATTACK AGAINST PERSONNEL

INVOLVED IN PEACEKEEPING MISSIONS IN ACCORDANCE WITH THE
CHARTER OF THE UNITED NATIONS

A. The required elements were not all satisfied

Article 8(2)(b)(e)(iii) of the Elements of Crime provides for seven (7) elements, two of which are
not satisfied.

i. The ISSF personnel is not involved in a peacekeeping mission in accordance with the
Charter of the United Nations.
Peacekeeping operations uses military forces at the behest of the parties to help supervise
ceasefire and/or to separate the parties 38. The three basic principles of a peacekeeping operation
are: consent of the parties, impartiality, and non-use of force except in self-defense and defense
of the mandate39.

Consent of the parties is not necessary in this case. As will be discussed below, the ISSF is a
peace enforcement operation sanctioned by the United Nations thru Article 42, of its Charter. 40
Peace missions in accordance with Article 42 do not rely on consent of the parties 41, but from the
binding authority of the Security Council.

35
Moot Problem, Para 8
36
Moot Problem, Para 14
37
Moot Problem, Para 24
38
Coleman, K - International Organisations and Peace Enforcement. The Politics of International
Legitimacy. Cambridge University Press As of
2012
39
United Nations General Assembly - Security Council, "Report of the Panel on United Nations
Peace Operations", A/55/305-S/2000/809, 21 August 2000
40
Article 42, Chapter VII, Charter to the United Nations
41
Findlay, T 2002 - The use of Force in UN Peace Operations. SIPRI, Oxford University Press.
As of 2012
Page 17 of 23
In peacekeeping operations, force will not be used to carry out the mandate. 42 But the ISSF used
force in excess of that necessary for self-defense and defense of the mandate when it launched an
air strike against ADF fighter jets43

a. Personnel, installations, material, units or vehicles were not entitled to that protection given
to civilians under the international law of armed conflict.

The ISSF is not entitled to protection given to civilians because they are considered combatants.
Peace enforcement missions under Article 42 of the UN Charter are forcible military
interventions by one or more states into a third country with the express objective of maintaining
or restoring international, regional or local peace and security by ending a violent conflict within
that country.44 The Convention on the Safety of United Nations and Associated Personnel
expressly exclude personnel authorized by the United Nations under this kind of operation. 45
Therefore, being considered as combatants, they are not entitled to the protection given to that of
a civilian.

B. General Amir is not individually responsible under Art. 25(3)(a)

The criminal responsibility of a person whether individual, jointly with another or through
another person must be determined under the control over the crime approach.46

i. General Amir did not directly commit the crime charged.

There is no sufficient evidence showing that General Amir was present at the time of the attack at
the ISSF Compound. He arrived on the region on 19 September 2013, which was five (5) days
after the attack.47

ii. No sufficient evidence of co-perpetration

The objective requirements common to both based on joint control are: (a) the existence of an
agreement or common plan between two or more persons; and (b) the coordinated essential

42
United Nations (UN) Peacekeeping PDT Standards, 2009. Specialized Training Material for
Police 1st edition.
43
Moot Problem, par. 15
44
Ibid
45
Article 2(2)
46
Prosecutor v. Katanaga and Ngudjolo, ICC-01/04-01/07
47
Moot Problem, par. 19
Page 18 of 23
contribution by each co-perpetrator resulting in the realization of the objective elements of the
crime.48

a. No agreement or common plan

In this case, while Colonel Adada was seen in the outside the compound during the attack 49, there
is no showing that there was an agreement or common plan between General Amir or Colonel
Adada.

b. No coordinated contribution by each co-perpetrator.

Existence of common plan can be inferred from the acts of the parties. Such is also absent in this
case. The mere presence of Colonel Adada outside the compound during the attack, and his
subsequent meeting with General Amir, cannot be equated as a common plan to attack such
compound.50

iii. No commission of crime through another person

The doctrine of perpetrator behind a perpetrator 51 applies when it is shown that the indirect
perpetrator exercised control over the will of the direct perpetrator. 52 In this case, there is no
showing that General Amir exercised control over Colonel Adada, or the ADF during the attack
at the compound.

III. WAR CRIME OF KILLING OR WOUNDING TREACHEROUSLY A COMBATANT

ADVERSARY
In order for the war crime of treacherously killing or wounding to be established, it must be
shown that the perpetrator invited the confidence or belief of one or more combatant adversaries
that they were entitled to, or were obliged to accord, protection under rules of international law
applicable in armed conflict; The perpetrator intended to betray that confidence or belief; The
perpetrator killed or injured such person or persons; the perpetrator made use of that confidence
or belief in killing or injuring such person or persons; such person or persons belonged to an
adverse party; the conduct took place in the context of and was associated with an armed conflict

48
Prosecutor v. Lubanga, ICC PT. Ch. I, ICC-01/04-01/06-803, 29 January 2007
49
Moot Problem, par. 17
50
Ibid.
51
Roxin, C. Goltdammer's Archiv fr Strafrecht, 963, pp. 193-207
52
Ambos, Kai. Article 25: Individual Criminal Responsibility
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not of an international character and the perpetrator was aware of factual circumstances that
established the existence of an armed conflict.53
Treachery involves inviting the confidence or belief of one or more persons that they are
entitled to, or were obliged to accord, protection under rules of international law with intent to
betray that confidence or belief.54
Combatant adversaries in the context of non-international armed conflicts are persons taking an
active or direct part in the hostilities.

A. The required elements of the crime of treachery or perfidy were not established

i. No intent to betray that confidence or belief of one or more persons that they are entitled to
protection
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.55

During the staff meeting in Orkan, General Amir only demanded that measures are to be taken in
order to end the illegal international force 56 but did not demonstrate that there was any intent to
betray confidence or belief. In the attack of the ISSF outpost, it was not established that the
operation was under the direction or upon the orders of General Amir. Rather, it was revealed
that the assailants were from a breakaway group from the ADF as reported by the Human Rights
Protection57.

ii. The perpetrator did not make use of that confidence or belief and did not kill or injure such
person or persons
One of the several categories of perfidious acts includes the usage of civilian status. During the
attack, the assailants may have used such perfidious acts, however the same cannot be attributed
as an instruction made by General Amir since there is no direct link as to the demand made 58 and
the acts of the group led by Imad Mousse, wherein the identity is not clearly proved. General
Amir did not make use of the said confidence nor belief thus failing to establish this element.

53
Article 8(2)(e)(ix) ICC Statute, Elements of the Crime
54
Elements of crimes, war crimes, Article 8(2)(e)(ix)
55
Article 30, ICC Statute
56
Moot Problem, Para 21
57
Moot Problem, Para 24
58
Moot Problem, Para 21
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B. General Amir is not individually responsible under Art. 25(3)(a)
General Amir did not instruct another person in any form to commit the war crime of killing or
wounding treacherously a combatant adversary as the two elements required have not been
observed59.

i. The order had no direct effect on the commission of the crime

The ICC and ICTR explained that there must be sufficient evidence to prove that the order has a
direct effect on the commission or attempted commission of the crime 60. In Kamuhanda, the
ICTR also held that an order has a direct and substantial authority over the perpetrator of the
crime61

Demand made by General Amir on 15 October 2013 was to take measures that would end the
occupation of the international force62 however he did not instruct to kill or wound any
combatant adversaries by use to treachery or perfidy. He did not order a specific action to be
taken by his subordinates during or even after the said meeting. No evidence shows that General
Amirs order had a direct or substantial effect on the commission of the crime. Therefore, the
requisite actus reus for establishing responsibility under Article 25(3)(b) has not been
substantiated.

ii. No awareness that the war crime of treacherously killing or wounding a combatant
adversary would be committed
The ICC has held that the person must at least be aware that the crime will be committed in the
ordinary course of events as a consequence of the execution 63 or that there is substantial
likelihood64 of such awareness. However, the perpetrators knowledge cannot be presumed;
solid evidence must prove it.65 The ICTR held that evidence must show how and in what capacity
the accused supported the act.66

59
ICC-01/04-01/12,P-tT Ch II (13 July 2002)
60
ICC Mudacumura decision on the Prosecutors application under Art.58; ICTR, Appeals
Chamber, Kamuhanda v. The Prosecutor, "Judgement", 19 September 2005, ICTR-99-54AA,
para. 75.
61
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-A, Appeal Judgement, 1 June
2001, para. 186.
62
Moot Problem, Para 21
63
ICC, Mudacumura, Decision on the Prosecutor's Application under Art.58, para.63.
64
ICC, Mudacumura, Decision on the Prosecutor's Application under Art.58, para.63
65
ICTY, Kordic Judgment, Para 427
66
ICTR, Akayesu Judgment, para.642.
Page 21 of 23
There is no solid evidence showing General Amirs knowledge of the alleged crime. He had no
prior knowledge of the attack and he had no control over the assailants 67. Based on the reports of
the Human Rights Protection it was not even clear as to whether the said assailants were member
of the Alin Defense Forces68.

CONCLUSION/PRAYER FOR RELIEFS

The Defense respectfully requests for the dismissal of the charges under the International
Criminal Court Statute against General Hassan Amir for the reason that Defendant is not guilty
on the basis of command and individual criminal responsibility under:
1. The war crime of rape under Article 8(2)(e)(vi) of the Rome Statute;
2. The war crime of intentionally directing attacks against personnel, installations, material,
units or vehicles involved in a peacekeeping mission in accordance with the Charter of
the United Nations, as long as they are entitled to the protection given to civilians or
civilian objects under the international law of armed conflict under Article 8(2)(e)(iii) of
the Rome Statute; and
3. The war crime of killing or wounding treacherously a combatant adversary under Article
8(2)(e)(ix) of the Rome Statute.
Pass any order, which the Court may deem fit in light of justice, equity and good conscience.

67
Moot Problem, Para 24
68
Moot Problem, Para 24
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 RESPECTFULLYSUBMITTED,
COUNSEL FOR THE DEFENDANT

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