Professional Documents
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Issue 1
Issue 1
believe that Brigadier G. Kumunova has committed the crimes charged with sufficient
2. That, in the present case the perpetrator in order to prove him liable under Article
above mentioned article, out of which the first element is satisfied( transfer of the
civilian population). The remaining two requisites are not established, because the
crime is committed by a person who does not contemplate the material element with
the requisite mental element, the perpetrator bears primary responsibility for
B. Conduct took place in the context of and was associated with an international
3. Applying the terminology in the present case a matter of international criminal law,
has resulted in a situation where “the real villain” in the wake of the crime has been
pigeonholed, “the accomplice” i.e. Mr. H. Zambaza while the principal offender as a
1
Artilce 61(5), Rome Statute
2
Prosecutor v. Germain Katanga and Mathieu Ngubjolo Chui (2008), ICC 01/04-01/07, Pre Trial Chamber 1,
(Decision on the confirmation of charges.)[65]
matter of law would simply be a small cog in the machine 3 . Each mode of
participation in the crime was in a defined form of conduct and an intentional element.
These are commonly referred to as the material and mental elements (or the actus reus
and mens rea) of the mode participation. ZOAK through its order no. 16, of 15th
January 2012 provided for bringing workman from Zamharta to provide training to
local and wiling residence of occupied territory for fulfilling the gap of required
workforce to conduct smooth administration i.e. relevant to state that the conduct of
the perpetrator was only for smooth administration of work because only five percent
of employees turned up to take up their jobs, which affected the excavation of the
mineral resources under the control of perpetrator. It is pertinent to mention here that
aforementioned conduct was not associated with IAC, because main motive of the
perpetrator was to administer the work effectively and efficiently, therefore the
4. That perpetrator is not individually responsible for the war crime as there are 3 subjective
a. The accused was aware that by implementing the common plan, the criminal
c. The accused was aware of the factual circumstances that established the existence of
an armed conflict, and of the link between these facts and his conduct.
3
W Schabas, Genocide in International Law. The crime of crimes, 2 nd Ed.,(Cambridge University press 2009),
340.
4
Prosecutor v. Thoms Lubanga Dyilo (2012), ICC, ICC-01/04-01/06, Trial Chamber 1, (Judgement pursuant to
Article 74 of the Staute), [1008]
However, perpetrator was not aware of an existence of an armed conflict as his
understanding was that the conduct took place for smooth administration of work, by
the workforce.5
5. Thus, perpetrator is not individually responsible for the war crime as the subjective
6. “Ordering” under article 256, requires the superior to have actively contributed to the
crime in question7 therefore, as per the facts pursuant to the present case an order is
required to be drafted, agreed upon and signed by the head of the authority that is Mr. H
Zambava, because perpetrator was receiving salary under the defence head of the budget
authority which is sufficient to prove that orders passed does not induces the commission
7. That the perpetrator did not had any effective command and control over the act of
for command responsibility to attack11, because finality of the order wholly depends upon
ZOAK12 . However he was not the de facto military commander who had the “effective
command and control”, and did not execute any order that calls for an evacuation of
relationship, namely the effectiveness is that perpetrator possessed “the material ability to
5
Para 2, Pg.No. 9, Moot Problem
6
Rome Statute
7
Prosecutor v. Bemba, ICC PT Ch.II, Decision pursuant to article 61(7)(a) and (b) of the Rome Statue on the
charges of the prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, 15 June 2009, §405.
8
Para 1, Pg.no.9, Moot Problem
9
Article 25(3)(b) of the Rome Staute
10
Article 28(a), Elements of Crime
11
Prosecutor v. Mucic et. Al, ICTY T. Ch., 16 November 1998, [370].
12
Para 1, Pg.no.9, Moot Problem
prevent or punish the material conduct of his subordinates” 13 .The perpetrator was the
principal administrator who had “that had substantial influence” or Zamharta military
forces, however he did not have the “material ability to prevent/punished” 14 . The
provided on a case by case basis16. Therefore, in reference to the facts of the present case
perpetrator is under the control of Mr. H which is sufficient to state that conduct, transfer
of population of Khawransik took place through the orders of superior not of perpetrator.
ARMED CONFLICT.
8. Under Article 30 (1) of the Rome Statute, 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. In the present case, perpetrator transferred the population
because majority of the employees of Khawransik did not turned up for their job
moreover; the supply of raw materials to the industries of Zamharta from the mines of
Khawransik started dwindling17, which reached almost half from their previous record.
Furthermore, due to lack of material, ten heavy industries of Zamharta were shut down in
2010 which caused severe economic strain to Zamharta and worsened the condition of
unemployment.
9. Hence, the aforementioned facts indicate that Khawransik developed worst situations to
run and maintain the industries and other associated works, which turned out to be the
13
Prosecutor v. Mucic et al., ICTY A. Ch., Judgement, 20 February 2001, [256].
14
Para 2, Pg.no.9, Moot Problem
15
Prosecutor v. Blaskic (2004), ICTY, IT-95-14-A, Appeals Judgment (“Blaskic”), [69].
16
Prosecutor v. Mucic et al., ICTY A. Ch., Judgement, 20 February 2001, §197
17
Para 2, Pg.no. 8, Moot Problem
main reason for which perpetrator transferred the population into the occupied territories.
Blaskic stated that intention exists where one acts with knowledge or the possibility of
knowing that civilians are being targeted 18 . Thus, there is no criminal intent of the
perpetrator to establish the existence of an armed conflict, to make him accountable for
the same.
10. The ICC found that contributions to the alleged crimes must be “significant”19. In the
present case, the perpetrator didn’t contribute to the alleged international war crime.
When assessing the contribution, it is considered that “whether the person created or
executed the plan?”20 It is pertinent to mention here that on 20th December 2011, war was
initiated against Khawransik by Mr. H. Zambawa in result of which thirty out of sixty
crystal clear from the facts that perpetrator had power only in reverence of “orders, rules
and regulations22”, in respect of ZOAK. Furthermore, perpetrator was bound by the acting
control of Mr. H. Zambawa, which is sufficient to state that perpetrator neither created or
executed the plan because aforementioned allegations were committed before his
appointment23.
11.
18
ICTY, Blaskic Trial Judgment, para.180.
19
ICC, Mbarushimana Decision on Confirmation of Charges, para.276.
20
Ibid., para.284.
21
Para 4, Pg.no.8, Moot Problem
22
Para 1, Pg.no.9, Moot Problem
23
Para 4, Pg.no.8, Moot Problem