IN THE INTERNATIONAL CRIMINAL COURT

AT
THE HAGUE, NETHERLANDS

CHANAKYA NATIONAL LAW UNIVERSITY

MCI SPECIAL INTRA MOOT COURT COMPETITION 2016

THE CASE CONCERNING CHARGES OF CRIMES AGAINST HUMANITY & WAR CRIMES

IN THE PRESENT MATTER INVOLVING:

THE PROSECUTOR V. BRIGADIER ZACHESU

{PROSECUTION} {DEFENCE}
WITH

THE PROSECUTOR V. BRIGADIER VASVODINA

{PROSECUTION} {DEFENCE}
 II

TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................................................................ III

STATEMENT OF JURISDICTION ..................................................................................................................... V

QUESTIONS PRESENTED ................................................................................................................................ VI

STATEMENT OF FACTS ................................................................................................................................. VII

SUMMARY OF ARGUMENTS .......................................................................................................................... XI

ARGUMENT ADVANCED .................................................................................................................................. 1

I. CRIMES AGAINST HUMANITY, FOR KILLING OF CIVILIANS ON THE NIGHT OF 16 APRIL 2012
AT RUKAMA, UNDER ARTICLE 7 (1) (A) OF THE ROME STATUTE. .................................................... 1

A. The act was not directed against the civilian population. ......................................................................... 1

B. There was lack of knowledge. .................................................................................................................. 2

II. WAR CRIMES, FOR KILLING OF THE AFD FIGHTERS AND CIVILIANS AT RUKAMA ON 17
APRIL 2012, UNDER ARTICLE 8 (2) (C) (I) OF THE ROME STATUTE. ................................................... 4

A. Rukama was found deserted. .................................................................................................................... 4

B. Forensic report was not able to establish the link between dead bodies. .................................................. 4

I. CRIMES AGAINST HUMANITY, FOR ENFORCED DISAPPEARANCE OF CAPTURED MINES

EMPLOYEES AND RODINGAN PARAMILITARY FORCES DURING DECEMBER 2011 STRIKE,
UNDER ARTICLE 7(1) (I) OF THE ROME STATUTE. ................................................................................ 6

A. The arrest, detention or abduction was not carried out by, or with the authorization, support or
acquiescence of, a State or a political organization. ...................................................................................... 7

B. There was no deprivation of fundamental rights. ..................................................................................... 7

C. The Conduct was neither widespread nor systematic in nature. ............................................................... 8

II. WHETHER VASVODINA IS LIABLE FOR WAR CRIMES, FOR LAUNCHING ATTACKS ON
INDUSTRIES IN REKHT CITY THAT RESULTED IN WIDESPREAD, LONG-TERM AND SEVERE
DAMAGE TO THE NATURAL ENVIRONMENT, UNDER ARTICLE 8 (2) (B) (IV) OF THE ROME
STATUTE.......................................................................................................................................................... 9

A.Widespread long tern and severe nowhere defined in Rome statute. ........................................................ 9

B. It is an internal armed conflict. ............................................................................................................... 11

PRAYER FOR RELIEF ....................................................................................................................................... 13

-MEMORENDUM ON BEHALF OF THE DEFANDANTS-

 III

INDEX OF AUTHORITIES

CASES
1. Nicaragua v. United States, 1986 I.C.J. 14, ICJ Merits, Judgment, 27 June 1986,
para. 115.
2. Prosecutor v Kunarac et al, IT-96-23 & 23/2,
3. Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424.
4. Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Judgement), ICTR-95-
1-T, International Criminal Tribunal for Rwanda (ICTR), 21 May 1999.
5. Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International
Criminal Tribunal for Rwanda (ICTR), 2 September 1998. \
6. Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717.
7. Prosecutor v. Limaj et al. (Trial Judgment), IT-03-66-T, International Criminal
Tribunal for the former Yugoslavia (ICTY), 30 November 2005, ¶ 183. [hereinafter
“Limaj”].
8. Prosecutor v. Milutinovic et al, IT-05-87-T.
9. The Prosecutor v. Bahr Idriss Abu Garda, ICC-02/05-02/09.
10. The Prosecutor v. Ferdinand Mahimana, Jean-Bosco Barayagwiza and Hassan Ngeze
ICTR-99-52-T.
11. The Prosecutor v. Mathieu Ngudjolo Chui, ICC-01/04-02/12..
12. The Prosecutor v. Uhuru Muigai Kenyatta ,ICC-01/09-02/11.
13. United States v. Von Weizsäcker et al. TWC, Vol. XIV at pg. 322 and, referred to in
AMBOS, DER ALLGEMEINE TEIL DES VÖLKERSTRAFRECHTS, at pg.124.

BOOKS
1. AMBOS, DER ALLGEMEINE TEIL DES VÖLKERSTRAFRECHTS.
2. ANTONIO CASSESE, PAOLO GAETTA, & JOHN R.W.D. JONES, THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT: A COMMENTARY, Oxford Univ. Press 2002.
3. C. GREENWOOD, BELLIGERENT REPRISALS IN THE JURISPRUDENCE.
4. CARNAHAN, LINCOLN, LIEBER AND THE LAWS OF WAR.
5. ELIES VAN SLIEDREGT, INDIVIDUAL CRIMINAL RESPONSIBILITY IN INTERNATIONAL LAW,
Oxford University Press 2012.
6. FRIEDMAN, THE LAW OF WAR.
7. HANS-HEINRICH JESCHECK, THE RESPONSIBILITY OF STATE ORGANS: A STUDY OF
NUREMBERG TRIALS), BONN: RÖHRSCHEID (1952)
8. HENCKAERTS, J.-M., DOSWALD-BECK, L., CUSTOMARY INTERNATIONAL HUMANITARIAN
LAW, Cambridge University Press, Cambridge, 2005, Vol.1.
9. KAI AMBOS in Triffterer (ed.), COMMENTARY ON THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT,Vol. 1.
10. L. MOIR, THE LAW OF INTERNAL ARMED CONFLICT, Cambridge Studies in International
and Comparative Law, Cambridge University Press, UK, 2002
11. OTTO TRIFFTERER, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL
CRIMINAL COURT, 1999.

-MEMORENDUM ON BEHALF OF THE DEFANDANTS-

 IV

STATUTES
1. Geneva Convention I
2. Geneva Convention IIGeneva Convention III
3. Geneva Convention IV
4. Protocols Additional to Geneva Convention I, 1977
5. Rome Statute, 1998

UN DOCUMENT
1. International Criminal Court, Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add.2
(2000)
2. Report of the International Commission of Inquiry on Darfur to the United Nations
Secretary-General, UN Doc. S/2005/60, 25 January 2005.
3. UN Doc. A/Conf.183/C.1/WGGP/L.4/Add.3
4. UN General Assembly, Rome Statute of the International Criminal Court (last
amended 2010), 17 July 1998, ISBN No. 92-9227-227-6
5. UNGAOR, 49th Sess,. Supp. No. 10, A/49/10(1994)
6. UNWCC, Vol. XV pg. 175-176.

MISCELLANEOUS
1. ICRC Commentary on the Four Geneva Conventions of 1949.
2. ICRC Customary Rules of International Humanitarian Law.
3. The ILC Draft Code of Crimes.

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 V

STATEMENT OF JURISDICTION

The instant matter has been submitted before the jurisdiction of the International Criminal
Court at Hague, the Netherlands, pursuant to the Rome Statute of the International Criminal
Court, 1998 by the Defendants. The case has been referred to the International Criminal
Court pursuant to Paragraph (1) of Article 5 read with Article 13 (c) of the Rome Statute,
1998 subsequent to which the Defendants have undertaken to accept this Hon’ble Court’s
decision as final and binding upon them and commit to comply with it in its entirety and in
good faith.

Article 5 (1) provides that:-

“Crimes within the jurisdiction of the Court: The jurisdiction of the Court shall be limited to
the most serious crimes of concern to the international community as a whole. The Court has
jurisdiction in accordance with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.”

Article 13(c) provides that:-

“Exercise of jurisdiction: The Court may exercise its jurisdiction with respect to a crime
referred to in Article 5 in accordance with the provisions of this Statute if:
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance
with Article 15.”

-MEMORENDUM ON BEHALF OF THE DEFANDANTS-

 VI

QUESTIONS PRESENTED

Pursuant to Rome Statute of International Criminal Court, 1988 (hereinafter “the Statute”)
the questions presented before this Hon’ble Court,

CHARGES AGAINST BRIGADIER ZACHESU

I.
CRIMES AGAINST HUMANITY, FOR KILLING OF CIVILIANS ON THE NIGHT OF 16 APRIL
2012 AT
RUKAMA, UNDER ARTICLE 7 (1) (A) OF THE ROME STATUTE.

II.
WAR CRIMES, FOR KILLING OF THE AFD FIGHTERS AND CIVILIANS AT RUKAMA ON
17 APRIL
2012, UNDER ARTICLE 8 (2) (C) (I) OF THE ROME STATUTE.

CHARGES AGAINST BRIGADIER VASVODINA

I.
CRIMES AGAINST HUMANITY, FOR ENFORCED DISAPPEARANCE OF CAPTURED MINES
EMPLOYEES
AND RODINGAN PARAMILITARY FORCES DURING DECEMBER 2011 STRIKE, UNDER
ARTICLE 7(1) (I)
OF THE ROME STATUTE.

II.
WAR CRIMES, FOR LAUNCHING ATTACKS ON INDUSTRIES IN REKHT CITY THAT
RESULTED IN
WIDESPREAD, LONG-TERM AND SEVERE DAMAGE TO THE NATURAL ENVIRONMENT,
UNDER ARTICLE 8(2) (B) (IV) OF THE ROME STATUTE.

-MEMORENDUM ON BEHALF OF THE DEFANDANTS-

 VII

STATEMENT OF FACTS

HISTORY OF RODINGA

Rodinga is a country that has a cherished history of unity in diversity. It was gradually
colonized by suzophia during 19th century. Suzophain authorities divided into five states,
namely, Sinsula in north, Kambhatka in the east, Nilodonia in the west., Radusaria in the
south and Sanrolia in central. Trisone was the capital city. The population of Rodinga mostly
consisted of three religions: Radung- 45%, Niluk- 35%, Sanlum- 15% and rest 5% tribal
people. The followers of the Radung religion was in majority in all the states except Sinsula
and Kambhatka , where Niluk was in majority. After 40 years of struggle Rodinga declared
its independence from Suzophia in july 1970, under the Rodinga Nationalist Democratic
Party(RNDP).

RODINGA NATIONALIST DEMOCRATIC PARTY

RNDP was an umbrella political organisation, under the leadership of Mr Ragoba, the central
uniting force for RNDP. Almost all spectrums of religious and social identities were part of
RNDP. MR. Ragoba became the first Prime Minister of Rodinga after independence, and
blamed Suzophia for the internal religious violences in Sinsula and Kambhatka states,
claiming that this was intentionaly done to hinder the development of Rodinga as these were
mineral rich states and also had more than 75% lush green forest cover of Rodinga. Mr
Ragoba formed a constituent assembly ensuring fair representation of all religions and
communities, Mr Ragoba however was chairman of 4 committees out of the total 10
committees. The assembly prepared the constitution within 6 months, declaring that Rodinga
would be secular, democratic and republic country. The fundamental rights provided to the
citizens of Rodinga by this constitution were to be suspended during emergency which the
PM could declare. RNDP won the coming three elections under leadership of Mr Ragoba.
Rodinga Socialist Republican Party(RSRP) was formed in 1971 with Mr Sari Salania, a
Radung as there president.

MOVEMENT AGAINST GOVERNMENT

The extensive extraction of natural resources from the states of Sinsula and Kambhatka by
the Government. caused widespread health and environmental issues. In 1980, Enduring
federation: our rights (EFOR) was formed under the leadership of Mr Nasan Aldolo, a niluk
by religion, it spread awareness about the plight of these states. On 1 june 1985, EFOR’s

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 VIII

peaceful protest joined by RSRP was brutally suppressed by police , Mr Aldolo and Mr Sari
Salania along with 1000 protestors were arrested. The Chief editor of The Morning
newspaper was also arrested and charged with defamation when the newspaper published an
article on corruption of Mr Ragoba’s family. The elections of 1986 saw widespread violence
involving police and RNDP workers. RNDP won by a slim margin and these elections were
criticized by interntional media.

In september 1986, due to the sudden attacks by EFOR on Government installations in forests
of Sinsalu and Kambhatka and by RSRP in Nilodonia and Radusaria, 50 security personals
died and hundreds were reported missing. As a result almost 5000 workers of EFOR and
RSRP were arrested and 115 were reported dead.In 1990, large scale violence erupted in
Sinsalu, Kambhatka , Niodonia and Rudasaria.

Mr Radula, son of Mr Ragoba was declared as the Prime Minister of Rodinga after the
assassination of Mr Ragoba on 1st feb 1990. On the very next day he declared emergency in
the whole country banning EFOR and RSRP and elections were suspended. The brutality of
Government during the January 1990 suppression was criticized by the Human Rights Quest.
The hiding workers of EFOR and RSRP united under the name “Army For
Democracy”(AFD) and engaged in violence against Government until the 3 sensational jail
breaks on 2nd march 2011 resulting in escape of Mr Aldolo, Mr Salania and Mr. Alberto.
They were declared the joint presidents of AFD which declared its intentions to fight for
democracy under the leadership of Brigadier Vasvodina.

FIRST SERIES OF ATTACK AT RUKAMA

In the series of attack by the AFD in Sinsalu and Kambhatka the coal mines of Rasinia and
Kaluma (both in Sinsalu) and gold mines of Samchatka and Tikalu( in Kambhatka) were
captured by AFD fighters. Some 50 employees and 50 paramilitary fighters were also alleged
to be captured. On 15th January 2012 Rodingan army attacked training camp of AFD fighters
killing 50 AFD fighters and 5 civilians.

On there way to liberate the captured coal mines, the Government army under Brigadier
Zachesu faced intense fighting from AFD in Rukama and lost 50 armed personnel without
any achievement. Brigadier Zachesu’s army dropped pamphlets in Rukama on 15 april 2012
containing warning and instructions to all civilians to leave Rukama immediately. After a
reasonable period of time for the civilians to vacate the place, Zachesu’s army started

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 IX

bombing, drones and fighter jets were used to attack positions of the AFD fighters on the
night of 16 april 2012 . On next morning, on entering Rukama, it is alleged that Zachesu’s
forces found and killed 50 assumed civilians hiding in natural caves. Invasion on private
organs is also alleged but all this charges are denied by the Government claiming that they
found Rukama deserted and pleaded operational constraint to search for missing
civilians.Rukama was made a temporary base camp.

SECOND SERIES OF ATTACK AND ENVIRONMENTAL HAZARD

AFD sought support from Zawalu and on 1 may 2012, Zawalu declared war against Rodinga
even after getting no instructions from UN after Suzophia vetoed peace resolution.On 1 may
2012 Zawalu forces under Colonel M. Samwolia entered Rodinga from border of Kambhatka,
With Zawalu’s support AFD wiped out the Government forces from Kambhatka and took
administration of it under their control. Though Zawalu forces had no effective control, they
were merely assisting AFD. During this week, 2000 Rodinga solidiers surrendered and were
held prisoners of war by AFD.

Zawalu invited IHEA officials to visit these prisoners and during their first meeting also
informed IHEA officials that the captures coal and gold mines employees and paramilitary
forces had voluntarily embraced the ideals for which the AFD was fighting and were out in
Rodinga to spread the AFD ideals.

After the announcement of independence of of Kambhatka from Mr. Radula’s regime

incident of killing of 10 supporters of RNDP by AFD fighter took place.On 10 may 2012, the
AFD and Zawaluan forces started deploying its personnel at the border of Rekht city, the city
of industries, situated at the banks of Sanrole river. On 11th may 2012, the Government of
Rodinga declared its intention to provide uninterrupted movement to Zawaluan forces and
AFD fighters with the intention to keep these forces away from the industries. The
Government indicated probable environmental catastrophe if fighting took place in Rekht but
upon the attack by Brigadier Vasvodina in an attempt to capture the industries, whose
strategic importance was very high for AFD, the Government equally used the arsenals as
AFD and Zawalu forces. This resulted into leakage of “Agent X” and other dangerous
chemicals into the Sanrole river. The whole ecology was vitiated beyond human
contemplation. This resulted in death of 100 people.

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 X

UN RESOLUTION AND CEASFIRE

Mr Radula, through a personal letter addressed to president of UN Security Council,

communicated his intentions to negotiate a ceasefire, to incorporate changes in constitution,
to withdraw emergency and to conduct elections.The last hour high level negotiations at the
Security Council resulted in the passage of resolution 2061 on 15 May 2012 that appealed to
all parties to the conflict to stop the hostilities immediately and requested the UN Secretary
General to appoint a Special Representative to help the parties to find an amicable solution.
The UN Peacekeeping forces were also deployed in Rodinga to keep peace and security.

According to the Tripartite ceasefire agreement, signed by representatives of Rodinga,

Zawalu and AFD fighters, the Zawaluan forces was to withdraw from Rodinga, the
Constitution of Rodinga was to be amended to accommodate the demands of the AFD, the
state of emergency was to be withdrawn and elections were to be conducted as per the
amended constitution. All political prisoners were to be released and the AFD had to
surrender its arsenal. The agreement also stated that the International Criminal Court would
investigate allegations of violations of international law committed during the past conflict.

On 23 may 2012, the members of the UN Peacekeeping forces discovered mass graves of
almost 450 persons in Rukama out of which almost 40 bodies were subjected to physical
invasions on their private body organs and 250 had marks of bullets on their skull with other
injuries.Some other were said to have died in heavy explosions.

Rodinga and Zawalu both are member of UN and both are parties to the four geneva
conventions and 2 additional protocols of 1977. Both are parties to ICC statute and have
signed IIIL conventions as well. Zawalu is a party to International covenant on Civil and
Political Rights.

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 XI

SUMMARY OF ARGUMENTS

CHARGES AGAINST BRIGADIER ZACHESU

I. CRIMES AGAINST HUMANITY, FOR KILLING OF CIVILIANS ON THE

NIGHT OF 16 APRIL 2012 AT RUKAMA, UNDER ARTICLE 7 (1) (A) OF THE
ROME STATUTE.

It is most respectfully submitted that the present situation has been brought before the
International Criminal Court under Article 7 (1) (a) of the Rome Statute of the International
Criminal Court for killing of civilians on the night of 16 April 2012 at Rukama under crime
against humanity. It is humbly submitted before the Hon’ble court that Brigadier Zachesu is
no way responsible for the alleged acts of crime against humanity for killing of civilians. As
it is not directed against the civilian Zachesu can not be held liable.

II. WAR CRIMES, FOR KILLING OF THE AFD FIGHTERS AND CIVILIANS AT
RUKAMA ON 17 APRIL 2012, UNDER ARTICLE 8 (2) (C) (I) OF THE ROME
STATUTE.

It is most respectfully submitted that the allegations made against Brigadier Zachesu under
article 8 (2) (c) (i) of the Rome Statute for killing of the AFD fighters and civilians at
Rukama on 17 April 2012 were not true, he is no way responsible because the evidences are
not beyond reasonable doubt. As well as there is lack of evidence.

CHARGES AGAINST BRIGADIER VASVODINA

I. CRIMES AGAINST HUMANITY, FOR ENFORCED DISAPPEARANCE OF

CAPTURED MINES EMPLOYEESAND RODINGAN PARAMILITARY FORCES
DURING DECEMBER 2011 STRIKE, UNDER ARTICLE 7(1) (I)OF THE ROME
STATUTE.
It is most respectfully submitted that the present situation has been brought before the ICC
under article 7(1)(i) of the Rome Statute for enforced disappearance of captured mines in
employees and Rodingan paramilitary forces during December 2011 strike. It is humbly
submitted before the Hon’ble court that the brigadier Vasvodina is no way responsible for the
alleged acts of crime against humanity. As the essentials are not being fulfilled.

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 XII

II. WAR CRIMES, FOR LAUNCHING ATTACKS ON INDUSTRIES IN REKHT

CITY THAT RESULTED IN WIDESPREAD, LONG-TERM AND SEVERE
DAMAGE TO THE NATURAL ENVIRONMENT, UNDER ARTICLE 8(2) (B) (IV)
OF THE ROME STATUTE.
It is humbly submitted before this Hon‟ble court that Brigadier Vasvodina is no way
responsible for the alleged acts of war crimes , for launching attacks on industries in Rekht
city that resulted in widespread, long-term and severe damage to the natural environment,
under article 8 (2) (b) (iv) of the Rome statute as the elements of crime are not being satisfied
as widespread long term and severe is nowhere defined in the rome statute, the injury or
damage that is made is not clearly excessive in relation to the concrete and direct overall
military advantage anticipated & It is an internal armed conflict.

-MEMORENDUM ON BEHALF OF THE DEFANDANTS-

 1

ARGUMENT ADVANCED

ARGUMENTS ADVANCED WITH RESPECT TO BRIGADIER ZACHESU

I. CRIMES AGAINST HUMANITY, FOR KILLING OF CIVILIANS ON THE NIGHT OF

16 APRIL 2012 AT RUKAMA, UNDER ARTICLE 7 (1) (A) OF THE ROME STATUTE.

It is most respectfully submitted that the present situation has been brought before the
International Criminal Court under Article 7 (1) (a) of the Rome Statute of the International
Criminal Court (hereinafter ‘the Rome Statute’)1 for killing of civilians on the night of 16
April 2012 at Rukama under crime against humanity. It is humbly submitted before the
Hon’ble court that Brigadier Zachesu is no way responsible for the alleged acts of crime
against humanity for killing of civilians. As it is mentioned in the Article 7 (1) (a) of the
Rome Statute2 that an act when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack means ‘crime against
humanity’. But here the elements of this principle are not being fulfilled. As [A] The act was
not directed against the civilian population and [B] There was lack of knowledge.

A. The act was not directed against the civilian population.

It is humbly submitted that, it is well mentioned in the facts that Brigadier Zachesu
leading the brigade of government towards the forest of Sinsalu to liberate the coal
mines of Rasinia and Kaluma. On their way to the coal mines they had a intense fight
with AFD fighters at suburban town Rukma which is 50 kms away from Rasinia. It has
been alleged against the Brigadier Zachesu that the act that has taken place on the night
of 16 april 2012, heavy shelling from tanks, drones and fighter jets. 3 The whole attack
was planned against the rebellion group of AFD fighters who were prevailing in the
Rukama city creating havoc against government. As referring to the Article 7 (1) (a) of
Elements of Crime**4,

1
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998,
ISBN No. 92-9227-227-6.
2
Rome statute, 1998, Article7(1) (a).
3
Moot proposition ¶ 22, pg 10.
4
Official website of International Criminal Court, The Hagues.
https://www.icc-cpi.int/resourcelibrary/official-journal/elements-of-crimes.aspx (accessed at 30 july 2016, 3:00
pm).
**The Elements of Crimes are reproduced from the Official Records of the Assembly of States Parties to the
Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002 (United
 2

1. The conduct was not committed as part of a widespread or systematic attack

directed against a civilian population.

It is humbly submitted before the Hon’ble court that the act was not directed against
the civilian population. As per the facts of the case the subordinates of Brigadier
Zachesu had dropped the pamphlets from helicopters on 15 April 2012 in Rukama
containing instructions to all civilians to immediately evacuate the town.5 After that
only on the night of 16 April the shelling from tanks, drones, and jets had taken
place. The delivering of message to civilians through pamphlets depicts that the
attack was not directed against the civilians. the requirement of ‘directed against’
means that ‘the civilian population must be the primary object of the attack and not
just an incidental victim of the attack’ given in the case law of Prosecutor v Bemba6,
in particular Prosecutor v Kunarac et al7Hence it is humbly submitted that the attack
was not directed against the civilian population. So this element of crime is being
negated.

B. There was lack of knowledge.

It is humbly submitted before the Hon’ble court that, there was lack of knowledge of
the attack as the perpetrator must knowingly commit crimes against humanity in the
sense that he must understand the overall context of his act. But here he was unaware of
the presence of civilians. Accordingly, actual or constructive knowledge of the broader
context of the attack, meaning that the accused must know that his act(s) is part of a
widespread or systematic attack on a civilian population and pursuant to some kind of
policy or plan, is necessary to satisfy the requisite mens rea element of the accused.8 As
referring to the elements of crime9,

Nations publication, Sales No. E.03.V.2 and corrigendum), part II.B. The Elements of Crimes adopted at the
2010 Review Conference are replicated from the Official Records of the Review Conference of the Rome Statute
of the International Criminal Court, Kampala, 31 May-11 June 2010 (International Criminal Court publication,
RC/11).
5
Moot proposition ¶ 22, pg 10.
6
ICC PT. Ch. II, ICC-01/05-01/08-424.
7
IT-96-23 & 23/2, ICTY App. Ch., 12 June 2002, paras 91-92].
8
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 133-134.
9
Supra note 4, pg.1.

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 3

1. The perpetrator was not aware that the conduct was part of or intended the
conduct to be part of a widespread or systematic attack against a civilian
population.

It is humbly submitted that there was lack of knowledge. Perpetrator was not aware
that even after taking precautions by sending messages and signals to the civilians
through pamphlets to evacuate within a reasonable time, this large number of
civilians are going to be present there. According to the Pre-Trial Chamber in the
case Prosecutor v. Katanga and Ngudjolo10, the mental element of the crimes
against humanity of murder is that the perpetrator intended to kill one or more
persons with the knowledge.
It is humbly submitted that the elements of crime are not being satisfied because the
attack was not directed against the civilians as well as reasonable precautions to let
the civilians evacuate the Rukama was taken. Hence Brigadier Zachesu cannot be
held liable under Article 7 (1) (a) of the Rome Statute.

10
ICC PT. Ch. I, ICC-01/04-01/07-717.

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 4

II. WAR CRIMES, FOR KILLING OF THE AFD FIGHTERS AND CIVILIANS AT
RUKAMA ON 17 APRIL 2012, UNDER ARTICLE 8 (2) (C) (I) OF THE ROME
STATUTE.

It is most respectfully submitted that the allegations made against Brigadier Zachesu under
article 8 (2) (c) (i) of the Rome Statute11 for killing of the AFD fighters and civilians at
Rukama on 17 April 2012 were not true, he is no way responsible because the evidences are
not beyond reasonable doubt. As well as there is lack of evidence. 12As per the facts, [A]
Rukama was found deserted and [B] Forensic report was not able to establish the link
between dead bodies.

A. Rukama was found deserted.

It is humbly submitted before the Hon’ble court, as per the claim of the government
that there was no one , when forces invaded Rukama the caves were found to be
deserted.13 The accusations that has been made are not beyond reasonable doubt. As in
the case of prosecutor v Callixte Mbarushimana14The Majority of the Chamber found
that there was not sufficient evidence to establish substantial grounds to believe that
Callixte Mbarushimana could be held criminally responsible. Mr Mbarushimana was
released from the ICC custody, in accordance with the Chamber’s decision. Hence
there is no proof beyond reasonable doubt and charges can be withdrawn due to
insufficient evidence15that the cave was not deserted, hence brigadier Zachesu could
not be held liable.

B. Forensic report was not able to establish the link between dead bodies.

It is humbly submitted that the forensic report prepared by the medical team of UN
peacekeepers16 was not able to establish link between the dead bodies found in the
graves of Rukama city and those were as claimed to be subjected to death in the caves
were same. As we know that there has been armed rebellion taking place in the country

11
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998,
ISBN No. 92-9227-227-6.
12
The Prosecutor v. Bahr Idriss Abu Garda, ICC-02/05-02/09.
13
Moot proposition ¶ 23, pg 10.
14
ICC01/0401/10.
15
The Prosecutor v. Uhuru Muigai Kenyatta ,ICC-01/09-02/11.
16
Moot proposition ¶ 35, pg 14.

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from a time being. Hence it is not necessary that the bodies discovered are of the people
hiding in the caves only. Prosecution is not able to prove it beyond reasonable doubt.
As in referring to the cases where accused is acquitted be cause of absence of the
element beyond the reasonable doubt17 Similarly in the case of The Prosecutor v.
Mathieu Ngudjolo Chui18 he was acquitted of war crimes at the Hague by a three-judge
panel presided over by Bruno Cotte on the grounds that the prosecution had not proven
beyond reasonable doubt that he was responsible for the crimes committed, a decision
which led to criticism of the ICC. According to Judge Bruno Cotte, prosecutors had
"not proved beyond reasonable doubt [that] Ngudjolo was responsible" for war crimes,
and evidence presented had been "too contradictory and too hazy. Hence Brigadier
Zachesu cannot be held liable without any proof which is beyond reasonable doubt.

17
The Prosecutor v. Ferdinand Mahimana, Jean-Bosco Barayagwiza and Hassan NgezeICTR-99-52-T.
18
ICC-01/04-02/12.

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ARGUMENT ADVANCED WITH RESPECT TO BRIGADIER VASVODINA

I. CRIMES AGAINST HUMANITY, FOR ENFORCED DISAPPEARANCE OF

CAPTURED MINES EMPLOYEES AND RODINGAN PARAMILITARY FORCES
DURING DECEMBER 2011 STRIKE, UNDER ARTICLE 7(1) (I) OF THE ROME
STATUTE.

It is most respectfully submitted that the present situation has been brought before the ICC
under article 7(1)(i) of the Rome Statute for enforced disappearance of captured mines in
employees and Rodingan paramilitary forces during December 2011 strike. It is humbly
submitted before the Hon’ble court that the brigadier Vasvodina is no way responsible for the
alleged acts of crime against humanity. As it is well mentioned the Article 7 (1) (i) of the
Rome Statute19 that, ‘Enforced disappearance of persons’ means the arrest, detention or
abduction of persons by, or with the authorization, support or acquiescence of, a State or a
political organization, followed by a refusal to acknowledge that deprivation of freedom or to
give information on the fate or whereabouts of those persons, with the intention of removing
them from the protection of the law for a prolonged period of time. But here the elements of
this principle are not being fulfilled. As [A] there was no refusal to acknowledge the arrest,
detention or abduction, or to give information on the fate or whereabouts of such person or
persons. [B] The arrest, detention or abduction was not carried out by, or with the
authorization, support or acquiescence of, a State or a political organization.[C] There was no
deprivation of fundamental rights. [D] The Conduct was As per the Article 7 (1) (i) of
Elements of crime20

A. There was no refusal to acknowledge the arrest, detention or abduction, or to

give information neither widespread nor systematic in nature on the fate or
whereabouts of such person or persons.

It is humbly submitted before the Hon’ble court that there was no refusal by brigadier
Vasvodina to acknowledge the arrest, detention or abduction, or to give information on
the fate or whereabouts. As it is mentioned inn the facts that there were two attempts

19
Rome statute, 1998, Article7(1)(i).
20
Official website of International Criminal Court, The Hagues.
https://www.icc-cpi.int/resourcelibrary/official-journal/elements-of-crimes.aspx (accessed at 31 july 2016, 2:07
pm).

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made to establish communication link between AFD and IHEA.21 But because of the
location of the communicators the link could not be established. That does not amount
to refusal. While during the second attempt meeting was conducted between AFD and
the IHEA officials, Vasvodina informed that captured employees of coal and gold
mines and paramilitary forces had voluntarily embraced the ideals for which the AFD
was fighting and were out in Rodinga to spread the AFD ideals.22 Therefore there was
no refusal to give whereabouts of these people.

1. Lack of evidence.

It is humbly submitted before the Hon’ble court that the claim of the prosecution
about the enforced disappearance allegation on the Brigadier Vasvodina lacked
evidence. As there is no mentioning of continuation of disappearance of
civilians. There was no evidence that the people claimed disappeared were held
captives as per the facts they were told to be spreading AFD ideals among civilians.
Hence it cannot be claimed due to lack of evidence.23

B. The arrest, detention or abduction was not carried out by, or with the
authorization, support or acquiescence of, a State or a political organization.

It is humbly submitted before the Hon’ble court that AFD was not a political
organization rather it was just a rebellious group banned by Government of Rodinga
and declared as terrorist organization in 1995.24

C. There was no deprivation of fundamental rights.

It is humbly submitted before the Hon’ble court that the country was already under
emergency and as per the facts The constitution of Rodinga provides Fundamental
Rights but they are suspended during the state emergency.25

As after the death of Prime minister ragoba, Radual his son and new Prime minister had
imposed state emergency.26 As per the Art.1.2 of the UN Declaration on

21
Moot Proposition ¶ 20, pg 9.
22
Moot Proposition ¶ 28, pg 11.
23
Prosecutor v. Milutinovic et al, IT-05-87-T.
24
Moot Proposition ¶ 17, pg 8.
25
Moot Proposition ¶ 9, pg 5.
26
Moot proposition ¶ 16, pg 7.

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Disappearances27 identifies this right among the rules of International Law violated by
an act of disappearance. The Working Group on Enforced Disappearances considers
that this is the principal right denied by the very fact of enforced or involuntary
disappearance. right is the one that is most obviously violated however it is not the best
way to go on for this right since it is derogable in times of emergency. Hence there was
no fundamental rights were vested to be hindered under the alleged act.

D. The Conduct was neither widespread nor systematic in nature.

It is submitted that the conduct and the act of the troops of Brigadier Vasvodina was
neither “widespread” nor “systematic” in nature. A widespread attack is one that is
directed against a multiplicity of victims.28 The conduct was not widespread as it was
not massive, frequent or large scale action, carried out collectively with considerable
seriousness.29 It is submitted that it is a prerequisite that the act must be committed as
part of a widespread or systematic attack and it should not just be a random act of
violence. Additionally the conduct cannot be held as „systematic‟ as it was not
thoroughly organised on the basis or some kind of preconceived plan or policy.
30
Therefore, it was merely a random act or conduct on the part of the accused and does
not suffice to be widespread or systematic in nature.31 As per the facts the intention of
the perpetrators wa only to occupy the coal and gold mines from the possession of the
government. As it is mentioned in the facts that the main motto of the AFD was to
secure the natural resources of the state. But the consecutive exploitation of the mines
of Kambhatka and Sinsalu by government, resulting in great environmental loss. Hence
there was no intention of the perpetrator to held mine workers and paramilitary fores as
captives, that was only incidental while the main motto was to occupy the mines to
prevent them from exploitation.

27
E/CN.4/1992/19/Rev.1.
28
The ILC Draft Code of Crimes explained "large scale" (the term used in place of 'widespread') to mean acts
that are "directed against a multiplicity of victims." Article 18 , ¶ 4
29
Prosecutor v. Limaj et al. (Trial Judgment), IT-03-66-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 30 November 2005, ¶ 183. [hereinafter “Limaj”].
30
Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Judgement), ICTR-95-1-T, International
Criminal Tribunal for Rwanda (ICTR), 21 May 1999.
31
Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for
Rwanda (ICTR), 2 September 1998.

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II. WHETHER VASVODINA IS LIABLE FOR WAR CRIMES, FOR LAUNCHING

ATTACKS ON INDUSTRIES IN REKHT CITY THAT RESULTED IN WIDESPREAD,
LONG-TERM AND SEVERE DAMAGE TO THE NATURAL ENVIRONMENT, UNDER
ARTICLE 8 (2) (B) (IV) OF THE ROME STATUTE.

It is humbly submitted before this Hon‟ble court that Brigadier Vasvodina is no way
responsible for the alleged acts of war crimes , for launching attacks on industries in Rekht
city that resulted in widespread, long-term and severe damage to the natural environment,
under article 8 (2) (b) (iv) of the Rome statute as the elements of crime are not being satisfied
as [A] A widespread long term and severe is nowhere defined in the rome statute,[B] the
injury or damage that is made is not clearly excessive in relation to the concrete and direct
overall military advantage anticipated [C] It is an internal armed conflict. According to article
8 (2)(b)(iv) of the Rome statute ‘war crimes’ means:

(b) Other serious violations of the laws and customs applicable in international armed
conflict, within the established framework of international law, namely, any of the following:
iv) Intentionally launching an attack in the knowledge that such attack will cause incidental
loss of life or injury to civilians or damage to civilian objects or widespread, long-term and
severe damage to the natural environment which would be clearly excessive in relation to the
concrete and direct overall military advantage anticipated.32

A.Widespread long tern and severe nowhere defined in Rome statute.

It is humbly submitted that, first of all the terms widespread, long term, and severe are
not defined in the Rome Statute and have been defined differently by the other
international agreements ENMOD and Protocol I33 that contain similar terms. In the
absence of a fixed definition, it is extremely unlikely that a military commander would
ever consciously conclude that her intended attack would cause widespread, long-term,
and severe damage to the non-human environment; at most she might be aware that her
intended attack would cause some amount of environmental damage. How it can be
expected taht one can by ownself define term widespread. Here as mentioned in the fact
Brigadier Vosvodina was trying to bring Rodinga under the umbrella of democracy as
the functioning of the government was no more democratic. Else it was taking the

32
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998,
ISBN No. 92-9227-227-6.
33
Additional Protocol I, Geneva Convention.

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shape of dictatorship. Hence due to ambiguity in the meaning of term widespread

allegations made against the Brigadier Vasvodina cannot be proved.

B. Injury Or Damage Is Not Clearly Excessive In Relation To The Concrete And

Direct Overall Military Advantage Anticipated.

It is humbly submitted that Article 8(2)(b)(iv) of the Rome Statute also requires the
excessiveness of damage to the environment to be determined in relation to the concrete
and direct overall military advantage anticipated by the perpetrator. It indicates that the
test for military advantage is an objective one. Most obviously, the text uses the
expression military advantage anticipated, not military advantage reasonably
anticipated or military advantage the perpetrator anticipated or should have
anticipated.34

1.Necessity justifies war, the maintenance of public order legitimizes the use of
force.

35
It is humbly submitted that necessity justifies war. It was important for the AFD
fighters to have the control of the industries situated in the Rekht city because it was
continuously exploited by the government which would lead to the environmental
problem in upcoming years. . As per the facts Rekht was a city of industries. These
industries were situated on the banks of the river Sanrole. This river was an
important source of drinking water for the population of Rekht and other cities
downstream. Though these industries were closed for some time due to a lack of raw
materials36 So it was apprehended by Brigadier Vasvodina that capturing the city
would not lead to any environmental problem. The leakage of agent ‘X’was not
intentional rather it was incidental. Military Necessity, in essence concerns a choice
of evil between military and humanitarian interests37. It differs from force majeure
in the sense that it involves a deliberate choice to disregard the rule. Military
Necessity can justify the violation of the laws of war, especially since some
International Humanitarian Law provisions have explicitly left room for a resort to

34
The Elements make use of the latter construction in other war crimes. See, e.g., Elements of Crimes, art.
8(2)(b)(xxvi) (providing for the war crime of using, conscripting, or enlisting child soldiers that ìthe perpetrator
knew or should have known that such person or persons were under the age of 15 yearsî) (Element 3).
35
J.Pictet, Humanitarian Law and the Protection of war victims,1975 pg 28-29.
36
Moot proposition ¶ 30, pg 12.
37
United States v. Von Weizsäcker et al. TWC, Vol. XIV at pg. 322 and, referred to in AMBOS, DER ALLGEMEINE
TEIL DES VÖLKERSTRAFRECHTS, at pg.124.

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 11

military necessity38. In Article 8(2)(iv) and Article 8(2)(e)(xii) destruction of

property is a qualified war crime when it is ‘not justified by military necessity’ or
‘unless demanded by the necessities of conflict’ and was subsequently acknowledged
in both High Command Case39 and Hostage Case40 In the present case attack was
made on the Rekht city because, no trust can be established with respect to
government as in past when protest was done the results were negative.

C. It is an internal armed conflict.

It is humbly submitted before the Hon’ble court that under Article 8 (2) (b) iv of the
rome statute is applicable only to international armed conflict. It is clear from the fact
that Zawalu interfered in the internal matter of the Rodinga. It has committed crime of
aggression by intervening in the internal matter of Rodinga was it was not necessitated
by the self defence nor it was sanctioned by the UNSC. Moreover, Zawalu forces were
merely assisting the AFD fighters in their mission and never undertook a fight on their
own.

1.Overall control and effective control.

It is humbly submitted before the Hon’ble court the international armed conflicts.
This explains why the assessment of the characterisation of the conflict under Article
8(2)(c) of the rome statute takes place in a wider discussion, notably in
contradistinction to international armed conflicts. The problem may arise in
particular in armed conflicts where there is fighting between governmental forces on
one side and organized armed groups on the other where at the same time a third
State is involved in the conflict intervening in support of the organized armed
groups. The way the Court distinguishes between a non-international and an
international armed conflict is by using the "overall control" test as opposed to the
"effective control" test that was established by the International Court of Justice in

38
Hague Rules of Land Warfare, 1907 Article 23(g); Additional Protocol-I Article 54(5) and Article 62(1),
prohibit certain conduct, unless ‘imperative military necessity’.
39
Rome Statute; 1998, Preamble ¶ 10, Artilcle 1; Preamble, ILC Draft Statute in Report of the ILC on the Work
of its forty-sixth session, UNGAOR, 49th Sess,. Supp. No. 10, A/49/10(1994). .
40
UNWCC, Vol. XV pg. 175-176.

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the Nicaragua Case 41. In the present case also Zawalu was not under overall
control, it was only effective control.42 Hence allegations cannot be proved.

41
Nicaragua v. United States, 1986 I.C.J. 14, ICJ Merits, Judgment, 27 June 1986, para. 115.
42
Moot proposition ¶ 27, pg 11.

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PRAYER FOR RELIEF

Wherefore, in the light of the issues raised, arguments advanced, reasons given and
authorities cited, this Hon’ble Court may be pleased to:

1. HOLD, that Accused No. 1 Brigadier Zachesu is not guilty of Crimes against
humanity, for killing of civilians on the night of 16 April 2012 at Rukama, under article
7 (1) (a) of the Rome Statute.

2. HOLD, that Accused No. 1 Brigadier Zachesu is not guilty of The War Crimes, for
killing of the AFD fighters and civilians at Rukama on 17 April 2012, under article 8
(2) (c) (i) of the Rome Statute.

3. HOLD, that Accused No. 2 Brigadier Vasvodina is not guilty of Crimes against
humanity, for enforced disappearance of captured mines employee and Rodingan
paramilitary forces during December 2011 strike, under article 7(1) (i) of the Rome
Statute.

4. HOLD, that Accused No. 2 Brigadier Vasvodina is not guilty of War Crimes, for
launching attacks on industries in Rekht city that resulted in widespread, long-term and
severe damage to the natural environment, under article 8(2) (b) (iv) of the Rome
Statute.

And any other relief that this Hon’ble Court may be pleased to grant in the interests of
justice, equity, and good conscience.

FOR WHICH THE DEFENDANTS SHALL FOREVER PRAY.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

COUNSELS FOR THE DEFENDANTS

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