Henry Dunant 2012 Defence Memorial

TABLE OF CONTENTS INDEX OF AUTHORITIES……………………………………………………………….....4-9 STATEMENT OF JURISDICTION…………………………………………………………..10 IDENTIFICATION OF ISSUES………………………………………………………………10 STATEMENT OF FACTS…………………………………………………………………10-11 SUMMARY OF PLEADINGS…………………………………………………………......11-12 PLEADINGS………………………………………………………………………...………13-33 I.MR. MAVEJ MINNOHI IS NOT LIABLE FOR COMMITTING THE WAR CRIME OF WILFUL KILLING UNDER ARTICLE 8(2)(a)(i) OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT A. WILFUL KILLING…………………………………………………………………….…13-22 1. Mr.Mavej Minnohi is not The Perpetrator: Element 1 not Fulfilled…………...……13-14 a. Threshold of guilt b. Reasonable doubt as to the actusreus 2. Persons Abducted were not Protected by the Geneva Conventions of 1949: Element 2 Not Fulfilled…………………………………………………………………….……14-15 3. Perpetrator was not Awareof Factual Circumstance that Established the Protected Status: Element 3 Not Fulfilled………………………………………………………………15-16 4. The Conduct did not Take Place in the Context of and was not Associated withan International Armed Conflict: Element 4 Not fulfilled………………………………16-21 a. Characteristics of armed conflict b. No armed conflict exists in Zavaria c. Assuming existence of armed conflict, it was not of aninternational character (i) Characteristics of an international armed conflict

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(ii) Validity of the theory of internationalization of armed conflict (iii)Conflict was not of international character 5. Perpetrator was not Aware of the Factual Circumstances that Established the Existence of An Armed Conflict: Element 5 Not Fulfilled……………………………...…………21-22 II. MR. MAVEZ MINNOHI IS NOT LIABLE FOR COMMITTING THE CRIME OF GENOCIDE BY KILLING MEMBERS OF THE GROUP UNDER ARTICLE 6(a) OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT A. GENOCIDE…………………………………………………………………………….…22-33 1. Mr. Mavej Minnohi is Not the Perpetrator: Element 1 Not Fulfilled……………………23 a. Threshold of guilt b. Reasonable doubt as to the actusreus 2. The Attack was on a Political Group and Not on a National, Ethnical, Racial or ReligiousGroup:

Element

2

Not

Fulfilled……………………………………………………...23- 25 3. The Perpetrator did not Intend to Destroy, in Whole or in Part, that National, Ethnical, Racial or Religious Group, as such: Element 3 not fulfilled……………………...…25- 27 a. Mr. MavejMinnohi had no dolusspecialisto destroy b. In whole or in part 4. The Conduct Took Place in the Context of a Manifest Pattern of Similar Conduct Directed Against that Group or was not Conduct that could Itself Effect Such Destruction: Element 4 NotFulfilled……………………………………...…………27-28 III. LACK OF INDIVIDUAL CRIMINAL RESPONSIBILITY……………………..…28- 29 1. The “commission” requirement under the Rome Statute of the ICC is not fulfilled 2. The “ordering” requirement is not fulfilled 3. The “instigated” requirement is not fulfilled [2]

IV.

NO

LIABILITY

UNDER

THE

DOCTRINE

OF

SUPERIOR

RESPONSIBILITY………………………………………………………………………...30- 33 1. Superior- subordinate relationship 2. Non-fulfillment of prerequisite of “effective control” 3. No presumption of knowledge merely on account of position of superiority 4. Failure to act PRAYER FOR RELIEF…………………………………………………………………….…34

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INDEX OF AUTHORITIES STATUTES, CONVENTIONSAND OTHER PRIMARY DOCUMENTS 1. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949……………………...…………………….14 2. Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949……………..15 3. Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949……………………………………………………………………………………....15 4. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949………………………………………………………………..…………15 5. Elements of Crimes, Rome Statute of the ICC, UN doc. PCNICC/2000/1/Add.2 (2000)………………………………………………………………………………...13, 23 6. Protocol Additional to Geneva Convention of 12 August 1949, and relating to the protection of the victims of international armed conflicts (Additional Protocol I)……21 7. Protocol Additional to the Geneva Conventions of August 12, and relating to the victims of non-international armed conflicts (Additional Protocol II)………...……………..16, 17 8. Rome Statute of the International Criminal Court............................................................13, 14, 20, 21, 22, 23, 24, 25, 29, 30, 31, 32, 33 9. Report of the International Law Commission on the Work of its 48th Session, Draft Code of Crimes Against Peace and Security of Mankind, U.N.GAOR, 51st Session., Supp. No. 10, U.N. Doc. A/51/10 (1996)………………………………………………………..….26

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BOOKS 1. Antonio Cassese, International Criminal Law (New York: Oxford University Press, 2003)………………………………………………………………………………..……16 2. Claude Pilloudet al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Nijhoff, 1987)………………………33 3. J. Pictet, (ed.), ICRC Commentary on Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (Geneva: International Committee of the Red Cross, 1958)……………………………………………………………………..16 4. L. N Sadat, The International Criminal Court and the Transformation of International Law: Justice for the new Millennium, (New York: Transnational Publishers Inc., 2002)…………………………………………………………………………………..…16 5. Marco Sassoli and Antoine A. Bouvier, How Does Law Protect In War; Volume 1 (Geneva: International Committee of the Red Cross, 2006)……………………..………26 6. Martin Hess (1983), The Applicability of International Humanitarian Law, Particularly in Joint Conflicts, (Zurich: SchulthessPolygraphiserVerlag, 1985)………………..…..20 7. Robert Kryer (et al.),An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2010)………………………….…………….28 8. William A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2007)………………………………………...……21, 24, 25 9. Y. Sandoz (et al.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: International Committee of the Red Cross, 1987)…………………………………………………………………………...…16

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ARTICLES 1. Geraldine Van Bueren (1994), “The International Legal Protection of Children in Armed Conflicts”, International and Comparative Law Quarterly, 43(1994): 809- 819……….16 2. CherifBassiouni and Bruce Broomhall (1999), “The International Criminal Court: Overview and Cooperation with States, in ICC Ratification and National Implementing Legislation”, Nouvelles Etudes Penales, 13(1): 45-63…………………………..………32 3. D. Schindler (1979), “The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols”, Hague Recueil, 163: 147………………………………….17 4. Anwar T. Frangi (1993), “The Internationalized Non-International Armed Conflict in Lebanon, 1975-1990: Introduction to Confligology”, Capital University Law Review, 22: 965-1038…………………………………………………………………………...…….20 5. Major James D. Levin (2002), “The Doctrine of Command Responsibility and its Application to Superior Civilian Leadership: Does the International Criminal Court have the Correct Standard?”,Military Law Review,52: 64……………………...……………32 6. PayamAkhavan (2005), “The Crime of Genocide in the ICTR Jurisprudence”, Journal of International Criminal Justice, 3(4): 989- 1006…………………………….……….24, 25 7. Sylvain Vite (2009), “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations”, International Review of the Red Cross, 91(873): 69-94………………………………………………………………...……………….18, 19 8. William J. Fenrick (1999), “Article 28: Responsibility of Commanders and Other Superiors”, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal

Court:

Observers´

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Notes,

Article

by

Article,

NomosVerlagesgesellschaft……………………………………………………………… ……..32 CASES 1. Prosecutor v Al Bashir,ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Al Bashir, (4 March, 2009)…………………………………..28 2. Prosecutor v. Akayesu, ICTR-96-4-T, ICTR Trial Chamber, Judgment, (2 September, 1998)……………………………………………………………………………..17, 19, 28 3. Prosecutor v. Aleksovski, IT-95-14/1-A, ICTY Appeals Chamber, Judgment (24 March, 2000)……………………………………………………………………….…………….30 4. Prosecutor v. Imanishimwe&Ntagerura, ICTR-99-46-T, ICTR Trial Chamber III, (1 December, 2000)………………………………………………………………...……….32 5. Prosecutor v. Bagilishema, ICTR-95-1-A-T, ICTR Trial Chamber (7 June, 2001).…….32 6. Prosecutor v. Blagojevic and Jokic, Trial Chamber, (17 January, 2005)…………..……26 7. Prosecutor v. Blaskic, IT-95-14-T, ICTY Trial Chamber, (3 March, 2000)……...7, 22, 29 8. Prosecutor v. Blaskic, IT-95-14-A, ICTY Appeals Chamber, (29 July, 2004)……..7, 30 9. Prosecutor v. Boskoski, IT-04-82-T, ICTY Trial Chamber, (10 July, 2008).........….17, 18 10. Prosecutor v. Brdjanin,IT-99-36-T, ICTY Trial Chamber, (1 September, 2004)………29 11. Prosecutor v. Delalic, IT-96-21-T, ICTY Trial Chamber, (4 September, 1998)…….….31 12. Prosecutor v. Furundzija, IT-95-17/1-T, ICTY Trial Chamber (21 July, 2002)……..….16 13. Prosecutor v. Haradinaj, IT-04-84-T, ICTY Trial Chamber, Judgment, (3 April, 2008)……………………………………………………………………………...….17, 18 14. Prosecutor v. Jean de DieuKamuhanda, ICTR-96-4-T, ICTR Trial Chamber, (2 September, 1998)…………………………………………………………………….…..33

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15. Prosecutor v. Jelisic, IT-95-10-T, ICTY Trial Chamber, Judgment, (14 December, 1999)…………………………………………………………………………..……....7, 27 16. Prosecutor v. Jelisic, IT-95-10-A, ICTY Appeals Chamber, (5 July, 2001)…….……7, 26 17. Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-717, Pre- Trial Chamber I, (26 September, 2008)………………………………………………………….……………..31 18. Prosecutor v. Kayishemaand Ruzindana, ICTR-95-1-A, ICTR Appeals Chamber, Judgment, (21 May, 1999)……………………………………………………………….26 19. Prosecutor v. Kordic and Cerkez, IT- 95-14/2, ICTY Trial Chamber, Judgment, (26 February, 2001)…………………………………………………………………..20, 22, 29 20. Prosecutor v. Krstic, IT-98-33-T, ICTY Trial Chamber, (2 August, 2001)…...…….26, 29 21. Prosecutor v. Kunarac,IT-96-23/1-A, ICTY Appeals Chamber, (12 June, 2002).…16, 31 22. Prosecutor v. Limaj, IT-03-66-T, ICTY Trial Chamber, Judgment, (30 November, 2005)…………………………………………………………………………….17, 18, 19 23. Prosecutor v. Lubanga, ICC-01/04-01/06-803, Pre-Trial Chamber I, (14 March, 2012)……………………………………………………………………………………..20 24. Prosecutor v. Lubanga, ICC-01/04-01/06-803, Pre-Trial Chamber I, Decision on the Confirmation of Charges, (29 January, 2007)………………………..………………….31 25. Prosecutor v. Musema, ICTR 96-13-A, ICTR Appeals Chamber I, (16 November, 2001)………………………………………………………………………………….….29 26. Prosecutor v. Naletilic and Martinovic, IT-98-34-T, ICTYTrial Chamber, (31 March, 2003)…………………………………………………………………………..…………21 27. Prosecutor v.Rajić, IT-95-12-R61, ICTY Review of the Indictment Pursuant to Rule 61, (13 September, 1996)…………………………………………………...………………..20

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28. Prosecutor v. Rutaganda, ICTR-96-3, ICTR Trial Chamber, Judgment, (6 December, 1999)……………………………………………………………………..16, 17, 24, 25, 28 29. Prosecutor v.Semanza, ICTR 97-20-T, ICTR Trial Chamber, (15 May, 2003)……...…29 30. Prosecutor v. Stakic, IT-97-29-T, ICTY Trial Chamber, (31 July, 2003)…………….....25 31. Prosecutor v. Tadic, IT-94-1-T, ICTY Trial Chamber II, Opinion & Judgment (7 May, 1997)………………………………………………………………………………..……20 32. Prosecutor v Tadic, IT-94-1-AR72, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, (2 October, 1995)…………...…17, 19 33. Prosecutor v. Vasiljevic, IT-98-32-T, ICTY Trial Chamber, (29 November, 2002)…….29 OTHER MATERIALS 1. Tamás Hoffmann, “Can foreign military intervention internationalize a non-international armed conflict? – A critical appraisal”, Available on the Web, accessed on 13/09/12, URL: http://www.isisc.org/portal/images/stories/PDF/Paper%20Hoffman.pdf................20 2. ICRC (2008), “How is the Term “Armed Conflict” Defined in International Humanitarian Law? (Opinion Paper)”, 1-5, available on the web, accessed on 15 August, 2012, URL: http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article170308/$file/Opinion-paper-armed-conflict.pdf...............................................................17

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STATEMENT OF JURISDICTION The Prosecutor, in pursuance of Article 13(c) of the Rome Statute has been empowered by Article 15 of the Rome Statute to initiate proceedings in the Honorable International Criminal Court, which may subsequently exercise its jurisdiction in pursuance to the crime committed under Article 5 of the Rome Statute. The Accused most humbly and respectfully submits to the jurisdiction of the Honorable International Criminal Court (ICC) in the present matter. IDENTIFICATION OF ISSUES I. Whether Mr. Mavej Minnohi is liable for crime of wilful killing of civilians who were abducted on 30 March 2008 in the province of Krubia under article 8(2)(a)(i) of the Rome Statute of the International Criminal Court? II. Whether Mr. Mavej Minnohi is liable for the crime of genocide of killing members of the group for the acts of killing of people in and around the Krubia province from 05 June 2008 till the end of June 2008, under article 6(a) of the Rome Statute of the International Criminal Court? STATEMENT OF FACTS Mr. Mavej Minnohi was the Prime Minister of Zavaria from 1982 till June 2007. After the Democratic Front won the 2007 general elections, Mr. Tokino was elected as the Prime Minister of Zavaria. The new Government alleged that Mr. Minnohi had entrusted government funded infrastructure projects to his supporters flouting rules. Mr. Minnohi went into hiding fearing arrest.

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After the blasting of oil pipeline on 25 March 2008, innocent civilians ranging from 540 to 660 from across the Krubia and Nikkoni provinces who were returning to their respective villages and towns after participating in a rally in support of the government and condemning violence of the PRF were abductedon 30 March 2008. Throughout the night of 05 June 2008, nearly 500 plain clothed armed men blocked the Naropa locality. The armed men went to as many houses as possible searching for young men, dragged them out of their houses and warned other family members not to get out of their houses. Next day morning, when the paramilitary and armed forces reached the locality, they encountered fierce armed resistance from the armed men which led to the killing of 26 armed men and 23 police and armed personnel and by evening, 379 dead bodies were found in different parts of the locality. Another 178 people were killed, along with incidents of sexual violence and incidents of rape of 15 women on 7 June 2008. The violence continued during the month of June and on 1 July 2008, Waltora City Ikshavu Welfare Society claimed that more than 1000 Ikshavu ethnicity people had been killed. At the request of the Prosecutor of the ICC, who made two charges against Mr. Minnohi under Rome Statute i.e., war crime of „willful killing‟ under Article 8(2)(a)(i) and crime of genocide of „killing members of the group‟ under Article 6 (a), the pre- trial chamber of the ICC issued the trial arrest warrant against Mr. Mavej Minnohi. On 04 March 2009, Mr. Minnohi was arrested by the police forces of Zavaria and was surrendered to the ICC on 31 March 2009. Hence the present matter before this Honorable Court SUMMARY OF PLEADINGS I. Mr. Minnohi is not liable for committing the war crime of wilful killing under Article 8(2)(a)(i) of the Rome Statute of the International Criminal Court.

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There is no conclusive proof as to the direct involvement of Mr. Minnohi in the killings of the persons abducted on 30 March 2008. Further, the abducted persons are not protected under Geneva Convention IV as no conflict or occupation existed in Zavaria and consequently, the question of Mr. Minnohi being aware of their protected status does not arise. Further, there is no armed conflict as the situation was in the nature of a riot. Even if there was armed conflict, it was not international as it was between the Government of Zavaria and the PRF within Zavarian territory. Since there was no armed conflict, there is no question of Mr. Minnohi being aware of any circumstances of an armed conflict. Hence, all the elements of crime are disproved. Ii. Mr. Minnohi is not liable for committing crime of genocide of killing members of the group under Article 6(a) of the Rome statute of International Criminal Court. The objective acts which comprise the actusreusof genocide must be committed with a specific intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such in order to constitute genocide. There is no conceivable connection between the armed men carrying out the killings and Mr. Minnohi. Also, the attack was on a political group and not on a national, ethnical, racial or religious group. Further, there is not a single instance showing Mr. Minnohi‟s intent to destroy. Lastly, there is no such manifest pattern of similar conduct of killing; they are just isolated and sporadic acts of violence. Hence, all the elements of crime are disproved. III. Individual Criminal Responsibility Individual responsibility cannot be attributed to Mr. Minnohi due to lack of evidence. IV. Superior Responsibility Superior responsibility also cannot be attributed to Mr. Minnohi due to lack of evidence.

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PLEADINGS I) MR. MAVEJ MINNOHI IS NOT LIABLE FOR COMMITTING WAR CRIME OF WILFUL KILLING UNDER ARTICLE 8(2)(a)(i) OF THE ROME STATUTE OF INTERNATIONAL CRIMINAL COURT The jurisdiction and the functioning of the International Criminal Court are governed by the provisions of the Rome Statute of the ICC1. Article 21 provides that in order to constitute a crime under the Rome Statute of the ICC the “Elements of Crime”2 must be proved. A. Wilful Killing To constitute the crime of wilful killing, the elements as per the “elements of the crimes” have to be proved.3 The “Elements of Crime” to be proved to constitute a crime of “Wilful Killing” are: 1.

The perpetrator killed one or more persons;

2.

Such person or persons were protected under one or more of the Geneva Conventions of 1949;

3.

The perpetrator was aware of the factual circumstances that established that protected status;

4.

The conduct took place in the context of and was associated with an international armed conflict;

5.

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.4

1

2

3

4

Article 1, Rome Statute of the ICC. Elements of Crime, UN doc. PCNICC/2000/1/Add.2 (2000); See Article 9, Rome Statute of the ICC Article 9, Rome Statute of the ICC. Elements of Crimes for Article 8(2) (a) (i), Rome Statute of the ICC.

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1. Mr. Mavej Minnohi is not the perpetrator: Element 1 not fulfilled a. Threshold of guilt Element 1 requires the perpetrator to have committed the act (actusreus) of killing one or more persons.5 The accused remains innocent until proven guilty and the onus is on the prosecutor to establish his guilt beyond reasonable doubt6. In case of any ambiguity, the definition of a crime shall be interpreted in favor of the person being prosecuted7. b. Reasonable doubt as to the actusreus Mr. Minnohi had no ill- will against the people abducted on 30 March 2008. They belonged to the provinces of Krubia and Nikkoni8 which were headed by the people belonging to the Nationalist Party of Mr. Minnohi9. As such the protection of the people was his interest rather than their abduction. Thus, there exists a reasonable doubt as to the actusreuson part of Mr. Minnohi and he should be given benefit of doubt. 2. Persons abducted were not protected by the Geneva Conventions of 1949: Element 2 not fulfilled Geneva Convention I provides protection to the wounded and sick, and to members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict, received or interned in their territory, as well as to dead persons found.10 Geneva Convention II provides protection to the wounded, sick and shipwrecked, and to members of the medical personnel and 5

Ibid.

6

Article 66, Rome Statute of the ICC.

7

Article 22 (2), Rome Statute of the ICC.

8

Moot Court Problem, paragraph 10.

9

Moot Court Problem, paragraph 8.

10

Article 4, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949.

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to chaplains of the armed forces of the Parties to the conflict received or interned in their territory, as well as to dead persons found.11 Geneva Convention III provides protection to the prisoners of war.12 In the present matter, the persons abducted on 30 March 2008 do not enjoy the status of protected persons under these three Geneva Conventions. Persons protected by the Geneva Convention IV are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.13 In the present matter, the persons abducted on 30 March 2008 were the residents of Waltora and Nikkoni provinces of Zavaria who were abducted by armed men.14 In this case, no conflict or occupation existed in Zavaria and the armed men were neither the party to any conflict or Occupying Power. It was only a random criminal act of abduction and hence, the abducted people do not come under the purview of protected persons as per Geneva Convention IV. 3. Perpetrator was not aware of the factual circumstances that established the protected status: Element 3 not fulfilled The third element of willful killing requires the perpetrator to be aware of the factual circumstance that established the protected status of such persons. As has already been stated and established above15, in the present matter, the people abducted on 30 March 2008 did not enjoy the status of protected persons as per Geneva Convention IV. In this light, no question arises with regard to the awareness about the protected status of those persons by anyone. Hence, it can 11

Articles 4 and 5, Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949. 12

13

Article 4, Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949. Article 4, Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949.

14

Moot Court Problem, paragraph 10.

15

See, Section I (A)(2) of this Memorial.

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be inferred that even assuming Mr. Minnohi to be the perpetrator, he was not aware of the protected status of the abducted persons. 4. The conduct did not take place in context of and was not associated with an international armed conflict: Element 4 not fulfilled a. Characteristics of armed conflict As war crimes can, by their name only exist in context of a state of armed conflict 16, the existence of a state of armed conflict is essential to establish the indictment.17An armed conflict exists whenever there is a resort to armed forces between states or protracted armed violence between governmental authorities and organized armed groups within a state.18 The “situations of internal disturbances, such as riots, isolated and sporadic acts of violence or other acts of a similar nature”19 do not constitute an armed conflict, which require high level of hostilities.20 Article 1(2) of Additional Protocol II21 also distinguishes “armed conflict” from “internal disturbances and tensions”.22 The minimum threshold for an armed conflict to exist requires

16

Prosecutor v. Furundzija, IT-95-17/1-T, ICTY Trial Chamber (21 July, 2002), paragraph 258; Prosecutor v. Kunarac,IT-96-23/1-A, ICTY Appeals Chamber, (12 June, 2002) [Hereinafter “Kunarac”]. 17

Antonio Cassese, International Criminal Law (New York: Oxford University Press, 2003), p. 49; L. N Sadat, The International Criminal Court and the transformation of International Law: Justice for the new millennium, (New York: Transnational Publishers Inc., 2002), p. 161. 18

J. Pictet, (ed.), ICRC Commentary on Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (Geneva: International Committee of the Red Cross, 1958), p. 29; ICTY, Prosecutor v. Tadic, Trial Chamber, Judgment, paragraph 70[Hereinafter “Tadic‟‟]. 19

Geraldine Van Bueren (1994), “The International Legal Protection of Children in Armed Conflicts”, International and Comparative Law Quarterly, 43(1994): 809- 819, pp.809, 813. 20

Prosecutor v. Rutaganda, Case No. ICTR-96-3 (Trial Chamber), 6 December, 1999, paragraph 92; See also Y. Sandoz (et al.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: International Committee of the Red Cross, 1987), p. 1384. 21

Protocol Additional to the Geneva Conventions of August 12, and relating to the victims of non-international armed conflicts (Additional Protocol II), 8 June 1977, 1125 U.N.T.S. 609. [Hereinafter “Additional Protocol II”]. 22

Article 1(2), Additional Protocol II (“This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”).

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rebels to have organized armies under their control23, with the capacity to sustain military operations.24 b. No armed conflict exists in Zavaria Article 3 common to the four Geneva Conventions of 1949 assumes that an international armed conflict‟ exists when the situation reaches a level that distinguishes it from other forms of violence to which international humanitarian law does not apply, viz. „situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature‟.25 The threshold of intensity is reached every time that the situation can be defined as „protracted armed violence‟26 for which the two fundamental criteria are: (a) the intensity of the violence and (b) the organization of the parties.27 With regard to the criterion of intensity, these data can be, for example, the collective nature of the fighting or the fact that the State is obliged to resort to its army as its police forces 23

Prosecutor v. Akayesu, ICTR-96-4-T, ICTR Trial Chamber, Judgment, (2 September, 1998) paragraph 621 (2 September, 1998) [Hereinafter “Akayesu”]. 24

D. Schindler (1979), The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols, Hague Recueil, 163: 147. 25

Additional Protocol II, Article 1(2). Although this quote is taken from Additional Protocol II, it is accepted that the threshold established is also valid for conflicts covered by common Art. 3. See ICRC (2008), “How is the Term “Armed Conflict” Defined in International Humanitarian Law? (Opinion Paper)”, 1-5, available on the web, accessed on 15 August, 2012, URL: http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article170308/$file/Opinion-paper-armed-conflict.pdf, p. 3. See also Prosecutor v. Limaj, IT-03-66-T, ICTY Trial Chamber, Judgment, (30 November, 2005), paragraph 84 [Hereinafter “Limaj”]. 26

Prosecutor v. Tadic, IT-94-1-AR72, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October, 1995), paragraph 70. 27

See Tadic, paragraph 561–568, especially paragraph 562. See also Limaj, paragraph 84; Prosecutor v. Boskoski, IT-04-82-T, ICTY Trial Chamber, (10 July, 2008), paragraph 175. These criteria have since been taken up by other international bodies. See, in particular, ICTR, Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgment (Trial Chamber I), 6 December 1999, paragraph 93; International Commission of Inquiry on Darfur, Report Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, paragraph 74–76. In the Haradinaj case, the ICTY adopted a slightly different position, stating that the notion of „protracted armed violence‟ must therefore be understood broadly. It does not cover the duration of the violence only, but also covers all aspects that would enable the degree of intensity to be evaluated. The ICTY also seems to equate this notion with that of intensity; Prosecutor v. Haradinaj, IT-04-84-T, ICTY Trial Chamber, Judgment, (3 April, 2008), paragraph 49 [Hereinafter “Haradinaj”].

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are no longer able to deal with the situation on their own. The duration of the conflict, the frequency of the acts of violence and military operations, the nature of the weapons used, displacement of civilians, territorial control by opposition forces, the number of victims (dead, wounded, displaced persons, etc.) are also pieces of information that may be taken into account.28 However, these are assessment factors that make it possible to state whether the threshold of intensity has been reached in each case; they are not conditions that need to exist concurrently.29 As for the second criterion, those involved in the armed violence must have a minimum level of organization. With regard to government forces, it is presumed that they meet that requirement without it being necessary to carry out an evaluation in each case.30 For nongovernmental armed groups, the indicative elements that need to be taken into account include, for example, 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.31 When one or other of these two conditions is not met, a situation of violence may well be defined as internal disturbances or internal tensions.

28

See R. Pinto (rapporteur), „Report of the Commission of experts for the study of the question of aid to the victims of internal conflicts‟, International Review of the Red Cross, February 1963, especially pp. 82– 83: „The existence of an armed conflict, within the meaning of article 3, cannot be denied if the hostile action, directed against the legal government, is of a collective character and consists of a minimum amount of organization. In this respect and without these circumstances being necessarily cumulative, one should take into account such factors as the length of the conflict, the number and framework of the rebel groups, their installation or action a part of the territory, the degree of insecurity, the existence of victims, the methods employed by the legal government to re-establish order, etc.‟ For a review of the indicative factors taken into account by the ICTY in its case law, see ICTY, Prosecutor v. Boskoski, paragraph 177 [Hereinafter “Boskoski”]; See also Limaj, paragraph 168; ICTY, Haradinaj, paragraph 49. 29

Sylvain Vite (2009), “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations”, International Review of the Red Cross, 91(873): 69-94, p. 77. 30

Haradinaj, paragraph 60.

31

For a review of the indicative factors taken into account by the ICTY in its case law, see ICTY, Boskoski, paragraphs 199–203. See also Limaj, paragraphs 94–134; ICTY, Haradinaj, paragraph 60.

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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.32 The stray instances of violence witnessed in Zavaria since August 2007 was suspected to have been carried out by the Patriotic Resistance Forum (PRF). However, PRF never took responsibility of these incidents barring one33. Thus, there is a reasonable doubt as to these incidents of violence being the handiwork of PRF. Also, there was no evident leadership of the PRF. Thus, it can be inferred that even if the PRF was reportedly an armed political group 34, it was not an organized one. Further, the protestors demonstrated a lack of skill and resources to sustain military operations. This can be attributed to the fact that the attacks perpetrated by them lacked in strategizing and were amateur in nature. This clearly shows that the protestors were incapable of engaging in high level of hostilities which characterizes an armed conflict and are not sufficient to fulfill the criteria of protracted armed violence. Thus the acts of violence in Zavaria only classify as riots, isolated and sporadic acts of violence or other acts of a similar nature. Hence, there was no armed conflict in Zavaria. c. Assuming existence of armed conflict, it was not of an international character (i) Characteristics of an International armed conflict An International Armed conflict exists when there is armed violence between two States.35 A non-international armed conflict may rise to the level of international armed conflict when a 32

Sylvain Vite (2009), “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations”, International Review of the Red Cross, 91(873): 69-94, p. 77. 33

Moot Court Problem, paragraph 8.

34

Moot Court Problem, paragraph 7.

35

Prosecutor vs. DuskoTadic, IT-94-1-AR72, ICTY‟s Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, paragraph 70 [Hereinafter “Tadic Jurisdiction”]; ICTR, Prosecutor v. Akayesu,. ICTR-96-4, Judgement, paragraph 620 (2 September, 1998) [Hereinafter “Akayesu”].

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foreign State effectively controls the opposing faction to the conflict, or one of the parties to the armed conflict act on behalf of a foreign state.36 (ii) Validity of the theory of internationalization of armed conflict A non-international armed conflict is internationalized if another state directly (occupation of territory or by sending troops) or indirectly intervenes. 37 However, the fact of intervention is relevant if it is carried out “significantly and continuously”.38 The requirement of conformity to the nullumcrimen sine lege39principle demands that such standards as the concept of internationalization should only be applied if they are firmly grounded in customary international law.40 It is undeniable that States only accept the legal dichotomy of international and noninternational armed conflicts and decline to accept any third way.41 (iii)Conflict was not of international character By the mere recovery of weapons manufactured in Atoria wherefrom Pamila buys military equipments and weapons meant for the use by Pamilian armed forces, from the 14 people killed who had engaged in firing with the Zavarian armed forces42, the conflict is not internationalized 36

Anwar T. Frangi (1993), “The Internationalized Non-International Armed Conflict in Lebanon, 1975-1990: Introduction to Confligology”, Capital University Law Review, 22: 965-1038, p. 1038; See Prosecutor v. Kordic and Cerkez, IT- 95-14/2, ICTY Trial Chamber, Judgment, (17 December, 2004), paragraph 66 [Hereinafter “Kordic”]; See also Prosecutor v. Tadic, IT-94-1-T, ICTY Trial Chamber II, Opinion & Judgment (7 May, 1997), paragraph 84 [Hereinafter “Tadic”]. 37

Prosecutor v. Lubanga, ICC-01/04-01/06-803, Pre-Trial Chamber I, (14 March, 2012) [Hereinafter “Lubanga”].

38

Prosecutor v. Rajić, IT-95-12-R61, ICTY Review of the Indictment Pursuant to Rule 61, (13 September, 1996), paragraph 21, [Hereinafter “Rajić”]. 39

Article 22, Rome Statute of the ICC.

40Tamás Hoffmann, “Can foreign military intervention internationalize a non-international armed conflict? – A critical appraisal”, Available on the Web, accessed on 13/09/12, URL: http://www.isisc.org/portal/images/stories/PDF/Paper%20Hoffman.pdf. 41

Martin Hess (1983), The applicability of international humanitarian law, particularly in Joint conflicts, (Zurich: SchulthessPolygraphiserVerlag, 1985), p. 151. 42

Moot Court Problem, paragraph 12.

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as the important criterion of overall control and significant and continuous intervention are not fulfilled as overall control test satisfied where a state has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support43 Thus, the test of international armed conflict has not been met in the present case. The situation at hand would also not fall under Article 1(4) of Additional Protocol I44which categorically deals with colonial and racist regimes. 45The incident of 30 March 2008 was in the context of this non-international conflict and hence, the jurisdiction of the ICC is excluded, as evident from the elements of crime for wilful killing.

5. Perpetrator was not aware of the factual circumstances that established the existence of an armed conflict: Element 5 not fulfilled A person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.46 As proved above, there was no situation of armed conflict in the instant case. Mr. Minnohi viewed the whole situation as a struggle for establishment of the identity and numerical majority of the Hoyila people with no political aspirations. Thus, he lacked the requisite knowledge to associate the circumstances to an armed conflict as he associated the same to internal disturbances reflecting the popular sentiment of the Hoyila people47 against the disenchantment with the ruling government. Furthermore, Mr. Minnohi had neither the intention 43

Tadic, paragraph 137, 138; See also Prosecutor v. Naletilic and Martinovic, IT-98-34-T, ICTYTrial Chamber, (31 March, 2003), paragraph 184. 44

Article 1(4), Protocol Additional to Geneva Convention of 12 August 1949, and relating to the protection of the victims of international armed conflicts, June 8, 1977, 1125 U.N.T.S 3[Hereinafter “Additional Protocol I”]. 45

William A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2007), p. 75. 46

47

Article 30(1), Rome Statute of the ICC. Moot Court Problem, paragraph 21.

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nor did he abduct or kill the abducted people who belonged to the provinces of Krubia and Nikkoni48 which were headed by the people belonging to the Nationalist Party of Mr. Minnohi49 because the protection of the people was his interest rather than their abduction and killing. Moreover, he himself stated that his concern was the welfare of every Zavarian citizen.50 Since, the minimum threshold to prove the guilt of the accused under the Rome Statute of the ICC is both knowledge and intent which has clearly not been fulfilled in the present case; Mr. Minnohi is not liable under the Rome Statute of the ICC. Additionally, the ICTY jurisprudence has also laid down that, to satisfy the mens rea for wilful killing, it must be established that the accused had the intent to kill, which is lacking in the case of Mr. Minnohi.51 II. MR. MAVEJ MINNOHI IS NOT LIABLE FOR COMMITTING THE CRIME OF GENOCIDE BY KILLING MEMBERS OF THE GROUP UNDER ARTICLE 6(a) OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT A. Genocide To constitute the crime of genocide, the elements as per the “elements of the crimes” have to be proved.52 The “Elements of Crime” to be proved to constitute a crime of “Genocide” are: 1. The perpetrator killed one or more persons. 2. Such person or persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 48

Moot Court Problem, paragraph 10.

49

Moot Court Problem, paragraph 8.

50

Moot Court Problem, paragraph 5.

51

Kordic, paragraph 229; Prosecutor v. Blaskic, IT-95-14-T, ICTY Trial Chamber, (3 March, 2000), paragraph 153; [Hereinafter “Blaskic”]. 52

Article 9, Rome Statute of the ICC.

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4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.53 1. Mr. Mavej Minnohi is not the perpetrator: Element 1 not fulfilled a. Threshold of guilt Element 1 requires the perpetrator to have committed the act (actusreus) of killing one or more persons.54 The accused remains innocent until proven guilty and the onus is on the prosecutor to establish his guilt beyond reasonable doubt55. In case of any ambiguity, the definition of a crime shall be interpreted in favor of the person being prosecuted56. b. Reasonable doubt as to the actusreus The killing of people on 5 June 2008 in the Naropa locality was carried out by 500 armed men in plain clothes and there was no connection between those armed men and Mr. Minnohi in any conceivable manner. There was also no evidence to show or prove that these armed men were members of the PRF. Hence, there is reasonable doubt that Mr. Minnohi was, in any manner, the perpetrator of the killings. 2. The attack was on a political group and not on a national, ethnical, racial or religious group: Element 2 not fulfilled For crime of genocide, it is necessary that the attack should be against a particular national, ethnical, racial or religious group.57The definition of „genocide‟ is restricted to the intentional

53

Elements of Crimes for Article 6 (a), Rome Statute of the ICC.

54

Ibid.

55

Article 66, Rome Statute of the ICC.

56

Article 22 (2), Rome Statute of the ICC.

57

Elements of Crimes for Article 6(a), Rome Statute of the ICC.

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destruction of „national, ethnical, racial, or religious groups‟.58 The plain language of the definition of genocide indicates that the listing of protected groups is exhaustive rather than illustrative. Furthermore, its interpretation is subject to the nullumcrimen sine lige principle which requires that „the definition of a crime shall be strictly construed and shall not be extended by analogy‟.59 Therefore, there is no basis to expand the list of protected groups beyond what is expressly included and to tamper with thus authoritative definition which has been widely accepted by States and reaffirmed under the Rome Statute of the ICC.60Also, the groups are defined to be national, ethnical, racial or religious according to the attitudes of those who persecute them rather than pursuant to some scientifically verifiable list of parameters.61 Further, political groups are not included under Article 6 of the Rome Statute of ICC as they have been excluded from the protected groups because they are considered to be mobile groups which one joins through individual, political commitment.62 In the present matter, it is evident from the speech of Mr. Minnohi given on 01 August 2007, where he stated that Mr. Tokino led government was targeting the Hoyilas with an intention to make them incapacitated politically and economically so that there would not be any challenge to Ikshavu domination in Zavaria clearly shows that his only intention was to establish the political and economic supremacy of the Hoyilas. It must be noted at this juncture that the

58

Article 6, Rome Statute of the ICC.

59

Article 22 (2), Rome Statute of the ICC.

60

PayamAkhavan (2005), “The Crime of Genocide in the ICTR Jurisprudence”, Journal of International Criminal Justice, 3(4): 989- 1006, pp. 999-1000. 61

William A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2007), p. 97. 62

Prosecutor v. Rutaganda, ICTR-96-3, ICTR Trial Chamber, Judgment, (6 December, 1999), paragraph 56 [Hereinafter “Rutaganda”].

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perpetrator‟s perception of the victim group63 is important in determining whether the act amounts to genocide or not and in the present matter, Mr. Minnohi perceived the Ikshavus as a political group led by Mr. Tokino, and not as an ethnical group. The situation in the present case was a conflict not between the two ethnical groups but between the two political groups led by Mr. Tokino and Mr. Minnohi. Political groups are not included under Article 6 of the Rome Statute of ICC as they have been excluded from the protected groups because they are considered to be mobile groups which one joins through individual, political commitment.64. Thus, the instant case cannot be called that of genocide. Since, the attack was not against a particular national, ethnical, racial or religious group but only a political group, it does not fulfill the protected group requirement of the definition of genocide. Hence, the instant case is not that of genocide. 3. The perpetrator did not intend to destroy, in whole or in part, that national, ethnical, racial or religious group, as such: Element 3 not fulfilled a. Mr.Mavej Minnohi had no dolusspecialisto destroy Genocide is a unique crime where special emphasis is placed on the specific intent.65Dolusspecialisrequires that the perpetrator „means to cause‟ a certain consequence or „is aware that it will occur in the ordinary course of events‟.66 In Krstic Trial Judgment, the chamber held that the intent to destroy a group as such, in whole or in part, presupposes that the

63

William A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2007), p. 97. 64

65

Rutaganda, paragraph 56. See Prosecutor v. Stakic, IT-97-29-T, ICTY Trial Chamber, (31 July, 2003), paragraph 520.

66

Article 30, Rome Statute of the ICC; See PayamAkhavan (2005), “The Crime of Genocide in the ICTR Jurisprudence”, Journal of International Criminal Justice, 3(4): 989- 1006, p. 989.

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victims were chosen by reason of their membership in the group whose destruction was sought.67 Simple knowledge or awareness that the killings etc. would, could or even might result in the (partial) destruction of a group does not suffice.68 The intention cannot be easily identified. It may be deduced from the words or the general behavior of the perpetrator.69 In Kayishema and Ruzindana,70the tribunal held that, “The mens rea must be formed prior to the commission of the genocidal acts.” The individual acts themselves, however, do not require premeditation; the only consideration is that the act should be done in furtherance of the genocidal intent.71 In Jelisic Case72, the chamber held that the specific intent requires that the perpetrator, by one of the prohibited acts, seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such. In the present matter, Mr. Minnohi had no intention whatsoever to commit the acts of genocide or to incite the public to commit the same. It is evident from the speech given by Mr. Minnohi on 01 August 2007 that he intended on preventing the Tokino government from incapacitating the Hoyilas politically and economically and also seeked the support of every Hoyila person in that regard. He further said that his concern was the welfare of every Zavarian citizen and he would strive for that.73 There is not a single instance where he has incited anyone 67

See Prosecutor v. Krstic, IT-98-33-T, ICTY Trial Chamber, (2 August, 2001) [Hereinafter “Krstic”].

68

See Report of the International Law Commission on the Work of its 48th Session, Draft Code of Crimes Against Peace and Security of Mankind, U.N.GAOR, 51st Session, Supp. No. 10, U.N. Doc. A/51/10 (1996). 69

Marco Sassoli and Antoine A. Bouvier, How Does Law Protect In War; Volume 1; (Geneva: International Committee of the Red Cross, 2006), p. 310. 70Prosecutor v. Kayishemaand Ruzindana, ICTR-95-1-A, ICTR Appeals Chamber, Judgment, (21 May, 1999), paragraph 91. 71 See Ibid. 72

Prosecutor v. Jelisic, IT-95-10-A, ICTY Appeals Chamber, (5 July, 2001), paragraph 46 [Hereinafter “Jelisic”]; See also Prosecutor v. Blagojevic and Jokic, Trial Chamber, (17 January, 2005), paragraph 656. 73

Moot Court Problem, paragraph 5.

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to kill the Ikshavus which clearly shows that he never intended to kill anyone, his only concern was to establish the political and economic supremacy of the Hoyilas and also the welfare of every Zavarian citizen, including the Ikshavus. b. In whole or in part The words „in whole or in part‟, indicates a quantitative dimension. The quantity contemplated must be significant and a substantial part of a group must be destroyed. 74The Naropa locality is mainly inhabited but not wholly inhabited by Ikshavus. Although 379 dead bodies were recovered after the incident of 5 June 2008, there is no proof that they belonged to the Ikshavu group as.75 Moreover, there is also a discrepancy regarding the number of people killed as the Waltora city police Chief and Waltora City Ikshavu Welfare Society gave out different numbers. In the present matter, although there were killings, neither can the number be said to be substantial enough as there is no proof as to how many people were exactly killed, nor can it be said that a substantial number of a particular group was killed. Hence, these killings do not amount to genocide. 4. The conduct did not take place in the context of a manifest pattern of similar conduct directed against that group or was not conduct that could itself effect such destruction: Element 4 not fulfilled The first branch of this element reflects a situation where the individual accused is acting within a broader context in which others are also committing acts of genocide against the targeted group. The adjective „manifest‟ means that the pattern must be a clear one and not one of a few isolated crimes occurring over a period of years. The second branch applies where the conduct in question „could itself effect such destruction‟. This could occur where a group is particularly

74

75

Prosecutor v. Jelisic, IT-95-10-T, ICTY Trial Chamber, Judgment, (14 December, 1999), paragraph 82. Moot Court Problem, paragraph 18.

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small or where the accused has access to powerful means of destruction with genocidal intent. The contextual element requires either a pattern of crimes, or a concrete danger to a group, thereby ruling out isolated hate crimes.76 In the present matter, there is no such manifest pattern of similar conduct of killing directed against the Ikshavu group. It must be noted that the term „manifest pattern‟ means that the killing should take place over a considerable period of time but in the present matter, the incidents concerned took place in the course of less than a month i.e. from 5 June 2008 till the end of June 2008. Moreover, the incident of 5 June 2008 and the rest of June 2008 were isolated crimes committed mostly by unidentified men.77“Manifest pattern” refers to a systematic, clear pattern conduct in which the alleged genocidal conduct occurs78 and these acts of the unidentified men cannot be considered to be part of systematic and clear pattern, they are just isolated and sporadic acts of violence. Hence, it does not amount to genocide. III. Lack of individual criminal responsibility Article 25(3) of the Rome Statute of the ICC promulgates individual responsibility for persons who commit, give orders to commit, or instigate the commission of the crimes in question.79 1. The “commission” requirement under the Rome Statute of the ICC is not fulfilled The term “commission”refers to the direct person or physical participation of an accused in the actual acts which constitute the material elements of the offence in question.80The head of liability of

76

Robert Kryer (et al.), An Introduction to International Criminal Law and Procedure, (Cambridge: Cambridge University Press, 2010). 77

Moot Court Problem, paragraph 19.

78

See Judge Ušacka‟s dissenting opinion in Prosecutor v Al Bashir,ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Al Bashir, (4 March, 2009), paragraph 58. 79

Akayesu, paragraph 483; Rutaganda, paragraph 39; Prosecutor v. Musema, ICTR 96-13-A, ICTR Appeals Chamber I, (16 November, 2001), paragraph 121.

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commission covers physically doing a crime.81Article 25(3)(a) of the Statute establishes individual criminal responsibility for persons who commits the crimes in question whether as an individual, jointly with another or through another person. In the present case there exists a reasonable doubt as to the actusreuson part of Mr. Minnohi as there is no instance of him being directly involved in the commission of a crime. 82 In light of the requirement that the definition of crime is to be strictly construed, 83the term “committed” must also be interpreted strictly as highlighted above.84 2. The “ordering” requirement is not fulfilled Under Article 25(3)(b) of the Statute,ordering requires that the person giving the ordermust have the required mens rea.85 In the present matter, there is not a single fact which shows any order given by Mr. Minnohi for the commission of the crimes. 3. The “instigated” requirement is not fulfilled The mental element for instigation requires that the accused wished to “provoke or induce” the commission of the crime or that he or she was aware of the “substantial likelihood”that the crime would be committed as a result of his or her conduct.86In the present matter, there is no evidence to indicate that Mr. Minnohi wished to “provoke or induce” the killing of individuals.87 80

Prosecutor v. Semanza, ICTR 97-20-T, ICTR Trial Chamber, (15 May, 2003), paragraph 383; Krstic, paragraph 601, Prosecutor v. Vasiljevic, IT-98-32-T , ICTY Trial Chamber, (29 November, 2002), paragraph 62 [Hereinafter “Vasiljević”]. 81

82

Krstic, paragraph 601. See Sections I (A)(1)(b) and II (A)(1)(b) of this Memorial.

83

Article 22 (2), Rome Statute of the ICC.

84

Article 25 (3) (a), Rome Statute of the ICC; Krstić, paragraph 601.

85

Blaskic, paragraphs 44, 42; Kordic, paragraphs 50, 30.

86

Blaskic, paragraphs 51, 278; Prosecutor v. Brdjanin,IT-99-36-T, ICTY Trial Chamber, (1 September, 2004), paragraph 269, [Hereinafter “Brdjanin”]; Kordic, paragraphs 50, 32. 87

See Section II (A)(3)(a) of this memorial.

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IV. No liability under the doctrine of Superior Responsibility To hold a person criminally responsible under the doctrine of superior responsibility for an international crime, the prosecution must prove four legal elements: 1. The existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate; 2. The crimes concerned activities that were within the effective responsibility and control of the superior; 3. That the superior knew or had reason to know or consciously disregarded information which clearly indicated that the crime was about to be or had been committed; and 4. That the superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators thereof.88 1. Superior- subordinate relationship There was no superior- subordinate relationship between Mr. Minnohi and the PRF. There is not a single fact that shows that Mr. Minnohi is the supreme leader of the PRF. Whilst there are no clear facts indicating that Mr. Minnohi was the leader of the PRF, hence, in their absence, it is established no superior- subordinate relationship between the two. 2. Non-fulfilment of prerequisite of “effective control” Mr. Minnohi did he have any “control over the crime” that occurred on 5 June 2008 till the end of June 2008. It is true that the crime of genocide took place but Mr. Minnohi had no role to play in it. In the Lubangacase the PTC observed that when a crime is committed by a plurality of persons, the Rome Statute separates out the commission strictusensoof a crime by a person, i.e.

88

Article 28(b) of Rome Statute of the ICC; See, Prosecutor v. Blaskic, IT-95-14-A, ICTY Appeals Chamber, (29 July, 2004), paragraph 484; Prosecutor v. Aleksovski, IT-95-14/1-A, ICTY Appeals Chamber, Judgment (24 March, 2000).

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principal liability, committed as “an individual, jointly with another or through another person” pursuant to Article 25(3) (a), from the responsibility of accessories to a crime under Article 25(3)(b)-(d).89In establishing the elements that allow for the criminal actions of subordinates to be attributed to their leaders, moreover, the Chamber held that three factors must apply: (i) the leader must control the organization that is used as an instrument of the crime; (ii) the organization must be based on hierarchical relations between superiors and subordinates, while composed of a sufficient number of subordinates to guarantee that the superiors‟ orders will be carried out, if not by one subordinate, then by another;90 and (iii) authority within the organization must be such that the leader‟s orders will be complied with automatically, in an almost mechanical manner, since the actual executioner of the order is a replaceable “gear in a giant machine” or is otherwise so brutalized by intensive, strict, and violent training regimens that the leader can ensure automatic compliance with his orders. 91 Superior may incur criminal responsibility for failure to take measures to repress the commission of crimes by his subordinates,92 or individuals whom he or she exercises effective control over.93 Effective control means that the superior had the material ability to prevent or punish the commission of crime by subordinates.94 Since, there is no evidence to prove that Mr.

89

Prosecutor v. Lubanga, ICC-01/04-01/06-803, Pre-Trial Chamber I, Decision on the Confirmation of Charges, (29 January, 2007), paragraph 320. 90

Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-717, Pre- Trial Chamber I, (26 September, 2008), paragraphs 513, 514. 91

92

Ibid, paragraph 518. Article 28 (b)(iii), Rome Statute of the ICC.

93

Prosecutor v. Delalic, IT-96-21-T, ICTY Trial Chamber, (4 September, 1998) [Hereinafter “Delalic”].

94

Prosecutor v. Kunarac, IT-96-23/1-A.

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Minnohi had effective control over the Patriotic Resistance Forum (PRF), he cannot be held criminally responsible. 3. No presumption of knowledge merely on account of position of superiority Although an individual‟s command position may be an indicator that he or she knew about the crimes, such knowledge may not be presumed95. Mr. Minnohi cannot be said to have knowledge about all abductions and killings by individuals not under his effective control. The standard for culpability of civilian superiors is “conscious disregard of information”. Thus, Article 28 (1)(b) entails stringent requirements in terms of information available to the civilian superior in contrast to the “owing to the circumstances at the time, should have known”standard applied to military superiors.96 It essentially eliminates culpability for negligent supervision.97 Mere inattentiveness, lack of due care or a failure to monitor or to investigate would not appear to be sufficient to satisfy this standard.98 In the present case, there was no “conscious disregard of information”by Mr. Minnohi and hence no liability can be attracted under Article 28(1)(b) of the Rome Statute of the ICC. 4. Failure to act The superior can be criminally responsible if he failed to take all necessary and reasonable measures99 to prevent or repress the commission of the offence100 or to submit the matter to the 95

Prosecutor v. Bagilishema, ICTR-95-1-A-T, ICTR Trial Chamber (7 June, 2001) [Hereinafter “Bagilishema”].

96

Article 28(b)(i) Rome Statute of the ICC; William J. Fenrick (1999), “Article 28: Responsibility of Commanders and Other Superiors”, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers´ Notes, Article by Article, NomosVerlagesgesellschaft. p. 529. 97

Major James D. Levin (2002), “The Doctrine of Command Responsibility and its application to Superior Civilian Leadership: does the International Criminal Court have the Correct Standard?” 193 Military Law Review,52: 64. 98CherifBassiouni and Bruce Broomhall (1999), “The International Criminal Court: Overview and Cooperation with States, in ICC Ratification and National Implementing Legislation”, Nouvelles Etudes Penales, 13(1): 45-63, pp. 45, 62, 63. 99

Prosecutor v. Imanishimwe&Ntagerura, ICTR-99-46-T, ICTR Trial Chamber III, (1 December, 2000), paragraph 630; Semanza, paragraph 406.

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competent authorities for investigation.101 However, it has already been established above that neither did Mr. Minnohi exercise any effective control on the PRF102 nor did he have any knowledge about their activities103 and hence, no question arises regarding his taking measures to prevent them.

100 Prosecutor v. Jean de DieuKamuhanda, ICTR-96-4-T, ICTR Trial Chamber, (2 September,1998), paragraph 606; Claude Pilloudet al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Nijhoff, 1987), p.1036. 101

Article 28(b), Rome Statute of the ICC.

102

See Section IV (2) of this Memorial.

103

See Section IV (3) of this Memorial.

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PRAYER FOR RELIEF Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced, it is most humbly prayed before this Honorable Court that it may be pleased to declare: 1. That Mr. Minnohi is not liable for the war crime of wilful killing of civilians who

were abducted on 30 March 2008 in the province of Krubia under article 8(2)(a)(i) of the Statute of the International Criminal Court. 2. That Mr. Minnohi is not liable for the crime of genocide of killing members of the group for the acts of killing of people in and around the Krubia province from 05 June 2008 till the end of June 2008, under article 6(a) of the Statute of the International Criminal Court. And pass any other order that it deems fit. All of which is respectfully submitted.

Date: 20 September, 2012

S/d 1. ……………

Place: The Hague, Netherlands

2. …………… (Counsels for the Accused)

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