1

University of Negros Occidental-Recoletos

SCHOOL OF LAW

Legal Research and Writing 2

Memorial Brief

Name: Emmanuel B. Cuenca

Section: LO1
Date: March 23, 2019
Professor: Atty. Maria Manelee Mijares

INTERNATIONAL CRIMINAL COURT

MEMORIAL FOR THE PROSECUTION

(Word Count: 4059)

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TABLE OF CONTENTS

Content Page No.

Table of Authorities 3
Statement of Jurisdiction 4
Synopsis of Facts 5
Conflict 8
Issues Raised 8
Summary of Pleadings 9
Pleadings: 10
Count 1- GENERAL REED IS CRIMINIALLY LIABLE FOR THE 10
WAR CRIME OF EXCESSIVE INCIDENTAL DEATH, INJURY, OR
DAMAGE
COUNT 2 - GENERAL REED IS CRIMINALLY LIABLE FOR 12
SOLICITING THE WAR CRIME OF ATTACKING PROTECTED
OBJECTS
COUNT 3 – GENERAL REED IS CRIMINALLY LIABLE FOR THE 14
WAR CRIME OF INHUMAN TREATMENT
Prayer for Relief 16
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TABLE OF AUTHORITIES

1. The Geneva Conventions of 12 August 1949

1.1 Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field
1.2 Geneva Convention Relative to the Treatment of Prisoners of War
1.3 Geneva Convention Relative to the Protection of Civilian Persons in
Times of War
2 Statute of the International Criminal Court
3 Protocols Additional to the Geneva Conventions of 12 August 1949
3.1 Protocol Additions to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of International Armed
Conflicts
3.2 Protocol II Additional to the Geneva Conventions of 12 August 1949
and Relating to the Protection of Victims of Non-International
Armed Conflicts
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STATEMENT OF JURISDICTION

The International Criminal Court has jurisdiction in this case because Under
Article 8 of the Statute, the International Criminal Court has jurisdiction in respect
of war crimes. These include most of the serious violations of international
humanitarian law mentioned in the1949 Geneva Conventions and their 1977
Additional Protocols, whether committed during international or non-international
armed conflicts.1
Certain other serious violations of international humanitarian law, such as
unjustifiable delay in the repatriation of prisoners and indiscriminate attacks
affecting the civilian population or civilian objects, which are defined as grave
breaches in the Additional Protocol I, are not specifically referred to in the Statute.
There are only a few provisions concerning certain weapons whose use is
prohibited under various existing treaties, and these do not apply with respect to
non-international armed conflicts.2
Since, both Alphon and Bethius were parties to the Four Geneva
Conventions of 1949, Additional Protocols I and II of 1997, and the Statute of
International Criminal Court, the provisions of Geneva Conventions are deemed
applicable as Article 2 provides: In addition to the provisions which shall be
implemented in peacetime, the present Convention shall apply to all cases of
declared war or of any other armed conflict which may arise between two or
more of the High Contracting Parties, even if the state of war is not recognized by
one of them. The Convention shall also apply to all cases of partial or total
occupation of the territory of a High Contracting Party, even if the said
occupation meets with no armed resistance. Although one of the Powers in
conflict may not be a party to the present Convention, the Powers who are parties
thereto shall remain bound by it in their mutual relations. They shall furthermore be

1
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July
1998, ISBN No. 92-9227-227-6, available at: https://www.refworld.org/docid/3ae6b3a84.html [accessed 26 March
2019]
2
Ibid.
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bound by the Convention in relation to the said Power, if the latter accepts and
applies the provisions thereof.3

SYNOPSIS OF FACTS

The Federal Republic of Citrea (FRC) once consisted of three republics,

namely Citrea, Alphon and Bethuis. Citrea is located to the north of Alphon and
Bethuis. In 1990, the FRC disintegrated with the three FRC constituent republics
becoming independent states. The capital of Alphon is Alpha and that of Bethuis
is Beta.
The population in Alphon is mainly composed of two ethnic groups. The
Alphonians, which make up 70% of the population, and ethnic Bethuisians. The
majority of the latter community lives in the province of Kebia, which is located in
the south eastern part of Alphon bordering Bethuis. The Alphonians and
Bethuisians speak different languages and have different religions.
In 2007, very large deposits of a rare metal call "urie" were discovered in
Kebia. Urie is an important material for the high-tech industry. Most Bethuisians in
Kebia believed that with the current discriminatory policies of the Alphonian
government, they are not likely to benefit much from the exploitation of the urie
deposits. “Reuniting” with Bethuis is becoming increasingly popular among the
Bethuisian people.
Since 2007, Bing had been recruiting people to form a paramilitary group
named the “Democratic Kebian Front" (DKF). With the covert support of the
Bethuisian government, Bing hired Ventures, a multinational security and military
company based in Citrea, to train recruits with military skills. The trainings took
place in some isolated part of Kebia. Bethuis has also supplied weapons to the
DKF. In June 2008, a succession of mass demonstrations was organized by the
BPM, demanding that a referendum be organized on the future of Kebia. The
Alphonian government’s response was swift and brutal. The manifestations were

3
Geneva I: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, August 12, 1949.
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ruthlessly suppressed with scores of persons killed and several hundred persons
injured by the police and security forces. The Alphonian government blamed
“foreign” elements stirring violence. Reacting on the condemnation of the
conduct of the Alphonian security forces, Alphon sternly denounced the
“irredentism” of the Bethuisian government and its intervention in Alphon’s internal
affairs, while reiterating that Kebia was and would remain an integral part of
Alphon.
On 13 July 2008, President Arrow vividly condemned Bethuis’ "act of
aggression" and seized the UN Security Council. The Bethuisian ambassador and
the diplomatic staff in Alpha were immediately called back to Bethuis. The
following day, the Bethuisian government severed all diplomatic relations with
Alphon.
The Alphonian Defence Minister Tom Atom, the Head of National
Intelligence Agency (NIA), Perry Ash, General Reed, his deputy, Colonel Harvey
Simms as well as other military staff met to plan Operation Thunderstorm. There
was a general agreement that recapturing Kiesh was the utmost priority. In a
meeting of 7 January 2009, it was decided that artillery attacks and air strikes
would be used to “shock, disorient, disrupt the Bethuisians”, before undertaking
the takeover of the city.
General Reed approved a list of targets for artillery attacks and air strikes,
with detailed coordinates for each target. The targets were dispersed all over the
city, including the DKF/PAB command centre, the BAS factory, the army barracks,
the main communication centre and Colonel Bing's residence. The privately-
owned BAS factory mainly produced bolts, screws and other metal products, but
was also known to have produced certain explosive devices prior to 2007.
The targets’ coordinates were determined on the basis of the records of
Alphonian authorities, information collected by pilotless drones and informants in
Kiesh. The location and residence of Colonel Bing was constantly monitored.
Artillery spots were established on the western periphery of Kiesh and deployed
with well-trained artillery personnel.
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On 17 July 2009, General Reed ordered the AAF to engage in a vigorous

attack with artillery and air support. Alphonian reconnaissance drones were
circling above Kiesh to observe targets, assess the damages and advise the
commanders of artillery units how to adjust their fire. Armed drones were
occasionally used to carry out air strikes. Drones were operated by a Special Unit
of the NIA.
In the morning of 19 July, the PAB convened a press conference
condemning the AAF for targeting civilians and civilian objects. Colonel Bing said
the AAF’s only aim was to spread terror among innocent civilians. When talking
about the BAS factory, Bing stated that it was a "purely civilian facility". He stressed
to the media that all the lights in the factory were on at the time of the attack,
which could be easily observed from a distance and was a clear indication that
there were people inside the factory.
In the afternoon of 21 July 2009, the AAF was combing the Rosemount
District to eliminate potential threats. At 17:30, the Head of NIA, Ash informed
General Reed that eye-witnesses had seen Bethuisian soldiers taking refuge in the
Municipal Hospital and in the Kebia Military College, an adjoining compound.
General Reed immediately ordered a squad to be sent to the hospital area. The
squad commander was reminded that "any threat should be eliminated”, but
that “non-threatening persons should be spared as much as possible."
Professor Mange and his students were detained in the Westwood Prison.
Ever since his first day in detention, Professor Mange had been protesting his arrest
and advocating freedom of speech. He had been put in solitary confinement for
four months from April to July 2009. To hasten his release and that of other
detainees arrested under the Emergency Decree, on 25 August 2009, Professor
Mange embarked on a hunger strike, only sipping water from time to time.

As Professor Mange's health condition deteriorated, Wall requested Dr. Paul

Malade, the doctor attached to the facility to examine Mange. Dr. Malade
reported that Mange was susceptible to heart irritability and arrhythmias. Mange
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was sent to the prison infirmary and placed under medical supervision. More
hunger strikers were taken to the infirmary in the ensuing days.
After 27 days of strike, Professor Mange resumed taking liquid nutritional
supplements. Following Mange's step, twelve other hunger strikers ended their
strike. The others continued to be subject to forced feeding until their release by
the new Alphonian government.
Professor Mange was finally released on 15 November 2009. On 1
December, he gave an interview to Global Times, an independent newspaper
based in Citrea. He claimed that the force-feeding was a punishment for his
leading role in the hunger strike in prison. He told the Global Times the ordeal he
went through during the feeding, "it took several attempts to rightly position the
tube," Mange said, "I almost lost my breath when it (the tube) when down my
throat. There was a gag reflex." He also mentioned that the size of the tube was
"too large" for his nostril and "caused great pain".
On 20 February 2010, the Prosecutor of the International Criminal Court
(ICC) indicted General Reed, who was surrendered to the ICC by the new
Alphonian government.

CONFLICT
Bethuis on July 12 2008 sent troops from the People’s Army of Bethuis into
Kiesh, and gained control over Kiesh and the eastern part of Kebia. The facts
support the existence of an International Armed Conflict on both accounts,
“partial occupation” and “intervention. Thus, the International Armed Conflict
between Alphon and Bethuis commenced.

ISSUES RAISED

In this particular case, there are three issues which must be discussed in
order to fairly give out final judgment:
1. Whether General Reed can be held liable with respect to:
1.1 The artillery attack and air strikes on Kebia;
1.2 The attacks against the municipal hospital in Kiesh; and,
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1.3 The treatment of detainees in Westwood Prison (solitary

confinement and forced feeding).
Under the Rome Statute for War crimes under Article 8(2)(a)(iv), 8(2)(b)(ix),
8(2)(a)(ii) respectively.

SUMMARY OF THE PLEADINGS

General Reed bears criminal liability under the Rome Statute for War
crimes under Article 8(2)(a)(iv), 8(2)(b)(ix), 8(2)(a)(ii) for the elements of the said
crimes were satisfied by the facts of the case.
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PLEADINGS

1. COUNT 1 – GENERAL REED IS CRIMINIALLY LIABLE FOR THE WAR CRIME OF

EXCESSIVE INCIDENTAL DEATH, INJURY, OR DAMAGE.4
1.1 The elements of the crime under Article 8(2)(b)(iv) are:
1.1.1 The perpetrator launched an attack.
1.1.2 The attack was such that it would cause incidental death or
injury to civilians or damage to civilian objects or widespread,
long-term and severe damage to the natural environment and
that such death, injury or damage would be of such an extent
as to be clearly excessive in relation to the concrete and direct
overall military advantage anticipated.5
1.1.3 The perpetrator knew that the attack would cause incidental
death or injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the natural
environment and that such death, injury or damage would be
of such an extent as to be clearly excessive in relation to the
concrete and direct overall military advantage anticipated.6
1.1.4 The conduct took place in the context of and was associated
with an international armed conflict.
1.1.5 The perpetrator was aware of factual circumstances that
established the existence of an armed conflict.

4
In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime
within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with
another or through another person, regardless of whether that other person is criminally responsible. ARTICLE
25(3)(a) (See: Rome Statute of the Criminal Court (Printpartners Ipskamp, Enschede, 2011), 18.
5
The expression “concrete and direct overall military advantage” refers to a military advantage that is
foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically
related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and
collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address
justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in
determining the legality of any military activity undertaken in the context of an armed conflict. (see: Elements of
Crimes, International Criminal Court, 2011)
6
As opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element
requires that the perpetrator make the value judgement as described therein. An evaluation of that value judgement
must be based on the requisite information available to the perpetrator at the time. (see: Elements of Crimes,
International Criminal Court, 2011)
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1.2 The elements of the crime are present in the case

1.2.1 Under the command of General Reed, the Alphonian Armed
forces committed the war crime of excessive incidental death,
injury, or damage. All the elements of the said crime are
fulfilled. Reed launched the attack that caused damage to
civilian and civilian objects or widespread, long term and
severe damage to the natural environment. Reed knew that
the attack would cause the casualties. He even made it in a
rush decision due to the campaign of the president.
1.2.2 The indiscriminate attack on the BAS factory compound
caused excessive incidental civilian loss. Indiscriminate attacks
include those that are not directed at a specific military
objective; employ a method or means of combat which
cannot be directed at a specific military objective; or may be
expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects, which would be excessive
in relation to the concrete and direct military advantage
anticipated. The privately-owned BAS factory which produced
civilian materials, by its nature, purpose or use, was not a valid
military objective. The military advantage of bombing this
civilian facility is marginal compared to the consequences, 15
dead civilians and 30 severely injured.
1.2.3 The knowledge of the possible collateral damage requires
value judgements based on requisite information available.
General Reed was aware of the list of targets. Given the use of
reconnaissance drones in collecting intelligence, Reed was
conscious of civilian presence in the BAS factory and the dense
population around Bing’s residence. As a “reasonably well-
informed person in the circumstances of the actual
perpetrator,” Reed “could have expected excessive civilian
casualties,” and thus launched the attacks “willfully and in
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knowledge of circumstances giving rise to the expectation of

excessive civilian casualties.”
1.2.4 General Reed was aware of the attacks and the relevant
consequences, and he and other perpetrators were mutually
aware of and accepted the circumstances and
consequences resulting from the ordinary course of attacks.

2. COUNT 2 – GENERAL REED IS CRIMINALLY LIABLE FOR SOLICITING THE WAR

CRIME OF ATTACKING PROTECTED OBJECTS. (Individual Criminal
Responsibility)7
2.1 Article 8(2)(b)(ix): “Intentionally directing attacks against buildings
dedicated to religion, education, art, science or charitable
purposes, historic monuments, hospitals and places where the sick
and wounded are collected, provided they are not military
objectives;”8
2.2 The elements of the crime under Article 8(2)(b)(ix) are:
2.1 The perpetrator directed an attack;
2.2 The object of the attack was one or more buildings
dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals or
places where the sick and wounded are collected,
which were not military objectives9;
2.3 The perpetrator intended such building or buildings
dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals or
places where the sick and wounded are collected,

7
In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime
within the jurisdiction of the Court if that person: (b) Orders, solicits or induces the commission of such a crime which
in fact occurs or is attempted; ARTICLLE 25(3)(b) (See: Rome Statute of the Criminal Court (Printpartners Ipskamp,
Enschede, 2011), 18.
8
Rome Statute of the Criminal Court (Printpartners Ipskamp, Enschede, 2011), 5-6.
9
The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police
forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military
objective. (see: Elements of Crimes, International Criminal Court, 2011), 23.
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which were not military objectives, to be the object of

the attack;
2.4 The conduct took place in the context of and was
associated with an international armed conflict; and,
2.5 The perpetrator was aware of factual circumstances
that established the existence of an armed conflict.
2.3 The elements of the crime are present in the case.
2.3.1 The Alphonian Armed Forces was directed by General
Reed and the squad attacked and caused damages to
a civilian object which was protected as known by both
sides.
2.3.2 The attack was directed to buildings and to the
Municipal Hospital.
2.3.2.1 Attack to such establishments are
prohibited and the protection clause does
not cease even when it is armed in its
defense for the wounded and the sick.
Municipal Hospital has long been
recognized as a medical facility in Kebia
and was used for medical functions byboth
parties since the conflict started. The
defending security guards were necessary
to protect the establishment purposes, is
used for military purpose, it shall be
presumed not to be so used, and the status
of the hospital as a protected object
remains. Alternatively, if the hospital was of
military function, a warning and a time-limit
should be given before the protection
ceases, which the AAF squad failed to
achieve.
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2.3.3 The Alphonian Armed Forces was clearly directed to

launch the attack against the hospital and to eliminate
any threat that arise therein.
2.3.4 General Reed knew the presence of the security
personnel of the hospital, but still directed the execution
of the attack.
2.3.5 General Reed bears individual criminal responsibility for
soliciting10 the commission of the war crime. As general
commander, Reed was in a position of authority to
convince another to commit an offence. His squad had
an implicit intent to violently eliminate the enemy soldiers
in the hospital zone. Reed’s reminder to the squad
commander suggests that he incited an act of violence
against a protected object “with the awareness of the
substantial likelihood that a crime will be committed in
the execution of that order.” Knowledge of the situation
suffices for the imposition of criminal responsibility for
soliciting the commission of the crime.

3. COUNT 3 – GENERAL REED IS CRIMINALLY LIABLE FOR THE WAR CRIME OF

INHUMAN TREATMENT (Superior Responsibility)11
3.1 The elements of crime under Article 8(2)(a)(ii)-212 are:
3.1.1 The perpetrator inflicted severe physical or mental pain
or suffering upon one or more persons;

10
Soliciting means “urging, advising, commanding, or otherwise inciting another to commit a crime.” (See:
Black’s Law Dictionary, 9th Ed., 2009).
11
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of
the Court: (a) A military commander or person effectively acting as a military commander shall be criminally
responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command
and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control
properly over such forces. ARTICLE 28 (See: Rome Statute of the Criminal Court (Printpartners Ipskamp, Enschede,
2011), 19.
12
Torture or inhuman treatment, including biological experiments. (See: Rome Statute of the Criminal Court
(Printpartners Ipskamp, Enschede, 2011), 5.
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3.1.2 Such person or persons were protected under one or

more of the Geneva Conventions of 1949;
3.1.3 The perpetrator was aware of the factual circumstances
that established that protected status;
3.1.4 The conduct took place in the context of and was
associated with an international armed conflict; and,
3.1.5 The perpetrator was aware of factual circumstances
that established the existence of an armed conflict.
3.2 The elements of the crime under Article 8(2)(a)(ii)-2 are present in
the case.
3.2.1 There was infliction of severe physical or mental pain or
suffering upon one or more persons when Jackson Wall,
upon the command of General Reed, forced-fed
Professor Thomas Mange and other inmates.
3.2.1.1 “Inhuman treatment” refers to a deliberate
act which causes serious mental or physical
suffering or injury, constitutes a serious
attack on human dignity and/or was
committed against a protected person.13
The act of putting Professor Mange in
solitary confinement caused grave injury to
his human dignity and that cut him off
completely from the outside world. Force-
feeding is an involuntary and unjustifiable
act. Mange suffered from physical pain for
17 days, two hours per day, and was
exposed to the risk of irreversible
neurological disorder. Strikers are granted
treatment in accordance with

13
Davis, Michael, The Moral Justifiability of Torture and other Cruel, Inhuman, or Degrading Treatment
(Jourmal of Illinois Institute Technology, 2005).
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internationally accepted standards of

medical ethics. Prison’s physicians are
obliged to maintain “primary obligation to
the individual patient,” and provide
information on the probable consequences
of the strike. Failure to fulfil these duties
violated the rights of the hunger strikers and
added unnecessary mental burden and
suffering on the victims.
3.2.2 The said persons were under the protection of one or
more of the Geneva Conventions of 1949. Prisoners of
war (POWs) and civilians are protected respectively
under Geneva Conventions III and IV. The detainees
who went on hunger strike include members of the PAB,
DKF, as well as civilians suspected of presenting terrorism
and security threats.
3.2.3 There was evident awareness of the protection status of
the prisoners under the Geneva Conventions.
3.3 Since General Reed was the superior of Jackson Wall, he must
bear superior responsibility for the commission of the war crime of
inhuman treatment by his subordinate.
3.3.1 A superior-subordinate relationship is based on one
person being “formally or legally appointed to carry out
a military commanding function” or “exercising effective
control over a group of persons through a chain of
command. “The following are factors needed for
effective control:
3.3.1.1 the suspect’s official position;
3.3.1.2 power to issue/give orders;
3.3.1.3 capacity to ensure compliance with orders
issued;
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3.3.1.4 capacity to make changes to command

structure;
3.3.1.5 power to promote, replace, remove, or
discipline any forces;
3.3.1.6 authority to send forces into hostilities and
withdraw them therefrom.
3.3.2 General Reed was the de jure commander of several
AAF units. Reed appointed Wall as warden of Westwood
Prison, demonstrating his ability to change the
command structure, thus indicating that Reed had the
“material ability to prevent and repress the commission
of the crimes or submit the matter to the competent
authorities.” Reed was given the specific authority to
prevent and control inhuman treatment in the prison.
3.3.3 General Reed cannot invoke his ignorance of the fact
that his subordinate was committing a crime. Such
denial of knowing the act is negligence in his part as he
also failed to take the necessary action and reasonable
measures within his limit to prevent any commission of
crime under his scope.
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PRAYER

The Prosecution hereby requests this Honorable Court to adjudge and

declare that General Reed is criminally liable under the Rome Statute for:

War crimes under Article 8(2)(a)(iv), 8(2)(b)(ix), 8(2)(a)(ii).

Respectfully,

The Prosecution