TEAM 001

______________________________________________________________________________
THE 2012 ASIA PACIFIC ROUNDS
PHILIPPINE NATIONAL RED CROSS COMPETITION

PROSECUTOR

v.

COLONEL CALLEY JONES

On Submission to the International Criminal Court

The Peace Palace, The Hague, The Netherlands
______________________________________________________________________________

MEMORIAL FOR THE APPLICANT

 TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................................... ii-iii

INDEX OF AUTHORITIES .................................................................................................... iv
STATEMENT OF JURISDICTION ....................................................................................... v
QUESTIONS PRESENTED..................................................................................................... vi
STATEMENT OF FACTS ...................................................................................................... vii
SUMMARY OF PLEADINGS .......................................................................................... xii-xiii
PLEADINGS ............................................................................................................................. 1
I. COLONEL JONES FOR HIS INDIVIDUAL CRIMINAL RESPONSIBILITY FOR
THE WAR CRIME OF VIOLENCE TO LIFE AND PERSON ------------------------------- 1
a. Cruel Treatment of KAF and KESA in Argus and Conti--------------------------- 1
1. The KAF and KESA inflicted severe physical and
mental sufferings to the detainees----------------------------------------------------------------------- 1
2. Detained persons in Argus and Corti were hors de combat and civilians taking no
active part in the hostilities and KAF and KESA’s awareness of the factual circumstances
establishing such status------------------------------------------------------------------------------------- 2
3. Conduct took place in the context of NIAC and the KAF and KESA’s awareness of the
factual circumstances establishing the existence of an armed conflict----------------------------- 3
b. Acts of Torture of KAF and KESA in Argus and Corti----------------------------- 4
c. Colonel Jones for his superior responsibility in committing the war crime of
violence to life and person------------------------------------------------------------------------------- 5
1. Superior-Subordinate relationship----------------------------------------------------------- 5
2. Superior’s knowledge and reason to know his subordinates’ acts---------------------- 5
3. Superior’s failure to take the necessary and reasonable measures to prevent such acts
or to punish the principal perpetrators-------------------------------------------------------------------- 6
II. A. COLONEL JONES FOR HIS INDIVIDUAL CRIMINAL RESPONSIBILITY IN
ORDERING THE WAR CRIME OF INTENTIONALLY ATTACKING THE MEDICAL
TRANSPORTS AND PERSONNEL IN CORTI
a. Colonel Jones directing the attack------------------------------------------------------- 6
b. Medical transport and personnel as target objects----------------------------------- 7
c. Conduct taking place in context and is associated with NIAC--------------------- 7
d. Colonel Jones awareness of the existence of an armed conflict-------------------- 7
B. COLONEL JONES FOR HIS INDIVIDUAL CRIMINAL RESPONSIBILITY FOR
THE WAR CRIMES OF OUTRAGES UPON THE PERSONAL DIGNITY---------8-12

III. A. COLONEL JONES FOR HIS INDIVIDUAL CRIMINAL RESPONSIBILITY FOR

KESA’S LAUNCHING OF AN EXCESSIVE ATTACK------------------------------------------12

ii
 a. KESA launching an attack------------------------------------------------------------12
b. Cyber-attack causing incidental death or injury to civilians or excessive
damage to civilian objects in relation to the concrete and direct overall
military advantage anticipated -------------------------------------------------------13
c. KESA knowledge of the attack causing incidental death or injury to civilians
or damage to civilian objects in relation to the concrete and direct overall
military advantage anticipated------------------------------------------------------- 14
d. Cyber-attack taking place in the context of and was associated with an
international armed conflict------------------------------------------------------- 15
e. Colonel Jones’s awareness of the factual circumstances establishing the
existence of an armed conflict----------------------------------------------------- 15-16
B. COLONEL JONES FOR HIS INDIVIDUAL CRIMINAL RESPONSIBILITY
FOR THE ACT OF HIS SUBORDINATES IN COMMITTING OUTRAGES
UPON PERSONAL DIGNITY------------------------------------------------------------16-18

PRAYER FOR RELIEF----------------------------------------------------------------------------- 19

iii
 INDEX OF AUTHORITIES

Treaties and Other International Instruments

Statute of the International Criminal Court………………………………………………. 1, 4, 9

Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of

Victims of International Armed Conflict, art. 48, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol

I]…………………………………………………………………………………………………2, 6, 10, 14

Case Law of the International Criminal Tribunals

Prosecutor v. Blaskic (Judgement) (2000 Trial Chamber), IT-95-14-T, 681……………………2

Prosecutor v. Tadic (Decision) (1995 Appeals Chamber), IT-94-1-AR72, 70………………….3,4

Prosecutor v. Tadic (Judgement) (1997 Trial Chamber), IT-94-1-T, 561-568, 562………3, 4, 11

Prosecutor v. Delalić (Judgment) (1998 Trial Chamber) IT-96-21-T, 370………………………5

Prosecutor v. Anto Furundžija , IT-95-17/1-T, 10 December 1998……………………………. 9

Prosecutor vs. Kamuhanda, ICTR-99-54A, January 22, 2004…………………………………12

Musema vs. Prosecutor, ICTR-96-13-A, January 27, 2000…………………………………….12

Prosecutor vs. Bahar Idriss Abu Garda…………………………………………………………13

Books and Articles

ICRC Opinion Paper, March 2008……………………………………………………………………….3

Tallinn Manual…………………………………………………………………………………………13

Jean-Marie Henckaerts & Louise Doswald-Back, Customary International Huminatarian Law

(2005)…………………………………………………………………………………………..7

iv
 STATEMENT OF JURISDICTION

This case is filed against Colonel Calley Jones before a Trial Chamber of the

International Criminal Court. The new Katoland government surrendered Colonel Jones to Court

in the following weeks after the fulfilment of the national surrender procedural requirements.

The Director of Prosecutions of Katoland notified the Court that Katoland relinquished its

jurisdiction over the case as allowed under the national ICC Act.

v
 QUESTIONS PRESENTED

The Prosecution respectfully asks this Honorable Court:

I.

A. Whether Colonel Calley Jones committed the war crime of violence to life and person, in

particular cruel treatment and torture under Article 8(2)(c)(i) of the ICC Statute.

II.

A. Whether Colonel Calley Jones bears individual criminal responsibility for ordering the

war crime of intentionally attacking the medical transports and personnel in Corti.

B. Whether Colonel Calley Jones bears a criminal responsibility for his subordinates’ act of

committing outrages upon personal dignity in particular, humiliating and degrading

treatment under Article 8(2)(c)(i) of the ICC Statute.

III.

A. Whether Colonel Calley Jones having authority and control of KESA committed the war

crime of launching an excessive attack with a knowledge that it will cause incidental loss

of life, injury to civilians, damage to civilian objects.

B. Whether Calley Jones committed the war crime of intentionally directing attacks against

the civilian population.

vi
 STATEMENT OF FACTS

BACKGROUND

The Federal Republic of Bariland (FRB) is composed of 4 constituent republics: North

Baron, South Baron, East Drakona and Katoland. The population of the FRB is mainly divided

among three ethnic groups: the Bari, the Drak and the Katoni. Katoland was conquered and

forcefully integrated into the Federal Republic in the XIXth Century (mainly because of its

access to the sea). Katoland is the second largest constituent republic.

TENSION ARISES

Tensions in Katoland began to mount amid rising nationalism among both the Katoni and

the Drak populations in the late 1990’s. The Katoni had never felt comfortable within the

Federation and, along with their growing affluence, were more and more inclined to reject the

powers of the Federal Government. In 1998, Katoland’s elections brought to power a nationalist

government openly seeking Katoland’s independence.

The Drakonian Nationalist Alliance (DNA) was created in 1995 and became an

influential political movement in West Drakonia, surfing on rising Drak nationalism agitated in

response to Katoni demands of independence.

Violent conflict broke out towards the beginning of 2003. FRB and Katoland security

troops were dispatched to West Drakonia in February. The fighting was characterised by general

disregard for international humanitarian law by uncontrollable militias, with both sides reporting

atrocities. During the war, many Drak villages were attacked and burned, as were Katoni houses

and schools in Mesto.

vii
 Due to the increasingly violent and volatile situation in West Drakonia, President Stark

declared a state of emergency throughout the country on June 1st, 2004. On July 15th, President

Stark issued a presidential decree outlawing the DNA on the ground that it constituted a threat to

Katoland's national security.

In September, violent clashes broke out between Drak and Katoni in Mesto and in Mari,

an eastern town of West Drakonia with a large Katoni population. The clashes turn increasingly

violent and bloody. The increasing violence in West Drakonia continued for the next 6 months

and drew widespread condemnation from the international community.

AGREEMENT TO AVOID THE USE OF FORCE

The government of Katoland and Drakonian nationalists reached an agreement where

they would avoid use of force against one another, and Katoland pledged not to impose sanctions

against Drakonia. However, the Katoland government still retained control over substantial

portions of West Drakonia.

The war resulted in West Drakonia breaking away from Katoland and gaining de facto

independence. In 2009-2010, tensions began to rise again. The de facto republic held an

independence referendum on 12 November 2009.

COLONEL JONES AS MINISTER OF DEFENSE AND EXECUTIVE VICE-

CHAIRMAN OF NCC

To face the perceived threats to Katoland security, the Katoland President established the

“National Crisis Council” (NCC) on 15th January. He appointed Colonel C. Jones, Minister of

Defense and Chief of the Armed Forces as Executive Vice-Chairman of the Council. On the

latter recommendation, the Minister of Internal Affairs, the Head of the External Security

viii
Agency (KESA) and a Special Presidential Adviser (Economic affairs) were appointed as

members. Colonel Jones was tasked to direct the preparations to be able to assume full authority

over West Drakonia by military means if necessary.

Colonel Jones reassured the Council that "all necessary measures including any

legitimate means and methods of warfare whatever the costs” would be taken to achieve the

objective of re-establishing authority over Western Drakonia. He indicated that he would

personally supervise the operations.

INTENSIFIED PUBLIC NATIONALIST CAMPAIGN

The Katoland government intensified its public nationalist campaign against both West

Drakonian authorities for their responsibility in the alleged attacks by Drak militias on the Katoni

population in West Drakonia and the FRB government, claiming that it sought to take over West

Drakonia by reviving the Bari-Drak alliance against the Katoni people. The terrorist attack

generally was blamed on the DNA. The Katoland Ministry of Defense accused the West

Drakonian side of "trying to create an illusion of serious escalation, an illusion of war." In

September 2010, the NCC endorsed Colonel Jones’s proposal to put Western Drakonia under full

military authority.

VIOLATION OF HUMANITARIAN LAWS

By the end of September 2010, the main towns and villages of West Drakonia were

combed by armed and security forces. Those suspected to be either associated or supporters of

the DNA militias were arrested and kept in custody. In the town of Argus (30,000 inhabitants)

alone more than 800 persons were arrested and detained under the Emergency Powers

Ordinance. Three women detained at the time have claimed that, during their detention, male

ix
guards subjected them to a body search, touched them inappropriately, and threatened to strip

them naked. They further claimed that they had been detained in an underground cell in a

detention facility staffed entirely by men. Among other things, they also claimed that: they were

only fed twice a day; the heating system was turned off, despite almost freezing temperatures at

night; there was inadequate light and ventilation; other prisoners and male staff could watch

them use the toilet; and, they were frequently subjected to humiliating comments.

Able-bodied men and women of Drak ethnicity were routinely rounded up, interrogated

and interned in the prison. Many of the former detainees gave evidence of severe overcrowding.

Several locations, including warehouses, abandoned buildings and underground storage areas

were used as make-shift detention centres. An NGO reported that torture was prevalent in those

places; a victim testified he was subjected to severe beatings during his interrogation before

being transferred to the prison facility.

Moreover, the central command issued a new instruction providing all medical vehicles

going through control posts, whatever the service they belong to, have to be thoroughly searched.

This led to the death of several persons in need of immediate medical attention. At some control

posts, vehicles transporting wounded were systematically stopped and searched. Identity checks

delayed controls as well, so that vehicles were immobilized for several hours.

In December 2010, Katoland forces strategically stationed tanks and long-range artillery

in the hills overlooking the Mesto river. Mesto’s electric power is supplied by a large power

station that lies across the border in East Drakonia, a remnant of the power production and

distribution before the independence of Katoland. On December 5th, it was reported that the

power plant's computer network system was attacked which resulted the complete shutdown of

x
the station. The shutdown severely affected the electricity and water supply of Mesto and its

surroundings, as well as the residential areas in East Drakonia.

NCC ALLEGEDLY BEHIND THE ATTACKS

Experts and commentators pointed out concordant bits of evidence sustaining that the

NCC was behind the cyber-attacks. It was seen as retaliation to the earlier attacks against

Katoland’s network. The coordination of the attacks as well as their timing were seen as

evidence that the Katoland Council had either contracted out some organization to carry the

cyber-attacks or had provided information to existing networks in order to enable the

coordination of the cyber-attacks. Some also alleged that the Head of KESA had closed ties with

organized crime syndicates specialising on electronic fraud.

xi
 SUMMARY OF PLEADINGS

I. Colonel C. Jones, Minister of Defense and Chief of the Armed Forces was appointed as the

Executive Vice-Chairman of the National Crisis Council (NCC). It was him who made the

proposal to put Western Drakonia under full military authority and reassured the Council

that "all necessary measures including any legitimate means and methods of warfare,

whatever the costs” would be taken to achieve the objective of re-establishing authority over

Western Drakonia. He personally supervised the operations with the assistance of the

security forces under the authority of the Ministry of Internal Affairs and KESA. The NCC

spokesperson tacitly consented to cruel treatment when it declared that “given the multiple

threats to national security, immediate measures were required”. Notwithstanding the

knowledge of Colonel Jones of the commission of cruel treatment and torture, nothing was

done to ensure that persons detained would receive a fair treatment or to prevent the

commission of such crimes.

II. Colonel Jones, undertakes responsibility of Jones, acted on the directives given by Jones,

that all medical vehicles going through control posts, whatever the service they belong to,

have to be thoroughly searched, as a consequence it hinders the access of medical attention

of persons in need. Accordingly, as Executive Vice-Chairman of the National Crisis Council

which enforced Emergency Powers Ordinance as enforced, he failed to observe necessary

measures to prevent the commission of the crime of outrages upon the personal dignity of

persons committed by his subordinates.

III. The civilian population should be protected from the dangers arising from military and any

xii
doubt as to whether an object normally used for civilian purposes, make an effective

contribution to military action, shall resolved in favor of the civilian purpose. The cyber-

attack on the power plant not only affected the supply of electricity but also the supply of

water which are objects indispensable to the survival of the civilian population . The harsh

climate conditions at the time the power plant was neutralized resulted in nearly 500 civilian

deaths, a clear consequence of a disproportionate attack and clearly beyond military necessity.

xiii
 PLEADINGS

I. COLONEL CALLEY JONES BEARS CRIMINAL RESPONSIBILITY FOR THE

WAR CRIME OF VIOLENCE TO LIFE AND PERSON, IN PARTICULAR CRUEL
TREATMENT AND TORTURE.

A. The Katoland Armed Forces (KAF) and Katoland External Security Agency
(KESA) have committed cruel treatment in Argus and Corti.

The conduct of KAF and KESA is considered an international crime of cruel treatment

for the following reasons: 1) severe physical or mental pain or suffering upon a number of

persons were inflicted; 2) such persons are hors de combat and civilians taking no active part in

the hostilities; 3) the KAF and KESA were aware of the factual circumstances that established

this status; 4) the conduct took place in the context of and was associated with an armed conflict

not of an international character; and 5) the KAF and KESA was aware of factual circumstances

that established the existence of an armed conflict.1

1. The KAF and KESA inflicted severe physical and mental sufferings to the detainees.

Cruel or inhuman treatment consists of acts which cause serious pain or suffering,

whether pysical or mental, or which constitute a serious outrage upon individual dignity.2

According to UN Human Rights Committee, “the detention of a person in inhumane conditions”

are listed as an example of severe sufferings. 3 Later in Tadic case and Blaskic case, being

1
Article 8(2)(c)(i)-3 of the ICC Statute

2
Torture and other forms of ill-treatment: The definitions used by the ICRC

3
Aydin v. Turkey, Report of Judgements and decisions, ECtHR, 1997-VI, [84]; Greek case, Yearbook of the

convention on Human Rights, ECiHR, p.461.

1
“confined in cramped or overcrowded facilities and deprived of sufficient food and water”4 were

respectively characterized as cruel treatment. Treatment in detention facilities operated by KESA

were comparable with those above as three former women detainees claimed that they were only

fed twice a day, the heating system was turned off despite almost freezing temperatures at night,

and there was inadequate light and ventilation. Also, many of the former detainees gave evidence

of severe overcrowding.

2. The people detained in Argus and Corti were hors de combat and civilians taking no
active part in the hostilities and the KAF and KESA were aware of the factual circumstances that
established this status.

The KAF and KESA failed to abide by the principle of distinction. Parties to an armed

conflict must distinguish between civilians and combatants.5 Therefore, they have the obligation

to determine whether a person is a civilian or a member of the Drakonian Nationalist Alliance

(DNA). However, the KAF and KESA arrested and detained persons even if they are only

suspected to be either associated or supporters of the DNA militias. They neglected to consider

that in case of doubt whether a person is a civilian, that person shall be considered to be a

civilian.6 Hence, the person that were arrested and detained who should have been treated as

civilians suffered severe physical and mental sufferings constituting cruel treatment and torture.

4
Prosecutor v. Blaskic (Judgement) (2000 Trial Chamber), IT-95-14-T, [681].

5
Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflict, art. 48, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I]

6
Article 50(1) 1997, Additional Protocol 1.

2
 Further, even assuming that there were members of the DNA militias among the persons

arrested, they were already in the power of KAF and KESA by detention and have lost the ability

to take part in the hostilities, thus, these people were hors de combat.7

As a party to the Four Geneva Conventions of 1949, the KAF and KESA are expected to

know how to determine the status of their detainees and who are under the protection of the

Conventions.

3. The conduct took place in the context of and was associated with Non-international
armed conflict (NIAC) and the KAF and KESA was aware of factual circumstances that
established the existence of an armed conflict.

NIAC exists whenever there is a resort to protracted armed violence between

governmental authorities and organized armed groups or between such groups within a State.8 In

order to distinguish an armed conflict from less serious forms of violence, such as international

disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of

confrontation.9 Two criteria are usually used in this regard:10 first, the hostilities must reach a

minimum level of intensity; and second, non-governmental groups involved in the conflict must

possess organized armed forces, that that these forces have to be under a certain command

structure and have the capacity to sustain military operations.

The NIAC here is between the DNA militias and the government of Katoland. With

shootouts increasing to large-scale clashes and resulting in heavy casualties, the intensity of the

7
AP I, Article 41.

8
Prosecutor v. Tadic (Decision) (1995 Appeals Chamber), IT-94-1-AR72.

9
ICRC Opinion Paper, March 2008.

10
Prosecutor v. Tadic (Judgement) (1997 Trial Chamber), IT-94-1-T, [561-568]

3
conflict reached the “protracted” requirement in Tadic.11 Likewise, the requisite organization,12

was also achieved for the DNA is an influential political movement in West Drakonia and it is

capable of arming itself as it has its own armed forces which is the Drakonian Armed Forces

(DAF). Thus, the conduct took place in the context of NIAC.

Furthermore, KAF and KESA were aware of the existence of an armed conflict. In

Kunarac case, a conduct is in association with an armed conflict when acts are “closely related

to” or “in furtherance of the armed conflict”. In this case, the arrest of the detainees was in the

purpose to facilitate the reinforcement of the conflict, where people detained were believed either

to have association with or to be supporters of DNA militias.

B. KAF and KESA have committed torture in Argus and Corti.

Torture consists of severe pain or suffering, whether physical or mental, inflicted for such

purposes as obtaining information or a confession, exerting pressure, intimidation or

humiliation.13

Compared with cruel treatment, the establishment of torture requires that the KAF and

KESA inflicted the pain or suffering for such purposes as obtaining information or a confession,

punishment, intimidation or coercion or for any reason based on discrimination of any kind.14

In this case, An NGO reported that torture was prevalent in those places operated by

KESA where victims were interrogated before being sent to the known places of detention. A

11
Prosecutor v. Tadic (Decision) (1995 Appeals Chamber), IT-94-1-AR72, [70].

12
Prosecutor v. Tadic (Judgement) (1997 Trial Chamber), IT-94-1-T, [562].

13
Torture and other forms of ill-treatment: The definitions used by the ICRC

14
ICCSt, Article 8(2)(c)(i)-4, Element 2.

4
victim testified he was subjected to severe beatings during his interrogation at one of those

unidentified location before being transferred to the prison facility. The purpose to obtain

information or a confession could easily be deduced.

C. Jones bears superior responsibility for the war crime of violence to life and
person, in particular cruel treatment and torture.

1. A superior-subordinate relationship existed.

Superior-subordinate relationship exists when a person is in “formal status” or in

“effective authority and control” as a military commander.15 Colonel C. Jones, Minister of

Defense and Chief of the Armed Forces was appointed as the Executive Vice-Chairman of the

National Crisis Council (NCC). It was him who made the proposal to put Western Drakonia

under full military authority and reassured the Council that "all necessary measures including

any legitimate means and methods of warfare, whatever the costs” would be taken to achieve the

objective of re-establishing authority over Western Drakonia. He personally supervised the

operations with the assistance of the security forces under the authority of the Ministry of

Internal Affairs and KESA. This demonstrates the existence of superior-subordinate relationship.

2. The superior knew or had reason to know that the subordinate was about to commit

such acts.

Jones did know the cruel treatment and torture prevalent among the detainees, since he

personally supervised the operations. In addition, the NCC spokesperson tacitly consented to

cruel treatment when it declared that “given the multiple threats to national security, immediate

measures were required”.

15
Prosecutor v. Delalić (Judgment) (1998 Trial Chamber) IT-96-21-T, [370].

5
 3. The superior failed to take the necessary and reasonable measures to prevent such acts
or to punish the principal perpetrators.

Notwithstanding the knowledge of Colonel Jones of the commission of cruel treatment

and torture, nothing was done to ensure that persons detained would receive a fair treatment or to

prevent the commission of such crimes. The report published by Human Right Watch gave rise

to an obligation to submit the matter to the competent authorities for investigation and

prosecution, which Jones also failed to do. He also failed to carry out his obligation to punish the

perpetrator after having learned that the offense was committed.16

II. COLONEL C. JONES BEARS INDIVIDUAL CRIMINAL RESPONSIBILITY FOR

ORDERING THE WAR CRIME OF INTENTIONALLY ATTACKING THE MEDICAL
TRANSPORTS AND PERSONNEL IN CORTI.

Colonel Jones, is the one granted principally with the authority to control as well as direct

commands to attain their goals. KAF, under the command responsibility of Colonel Jones,

committed the war crime of attacking the protected objects, specifically the medical transports

and personnel.

All the elements were satisfied.

a. Colonel Jones directed the attack

Article 49(1) of the 1977 Additional Protocol I to the 1949 Geneva Conventions defines

“attacks” as “acts of violence against the adversary, whether in offence or in defence.”.17 Colonel

Jones, undertakes responsibility of Jones, acted on the directives given by Jones, that all medical

16
ICTYSt, Article 7(3).

17
Protocol Additional to the Geneva Conventions of 12 August 1949, art. 49.1, June 8, 1977

6
vehicles going through control posts, whatever the service they belong to, have to be thoroughly

searched, as a consequence it hinders the access of medical attention of persons in need. 18 As

reported there were several persons died because of the lack of medical attention because of the

said immobilization and confiscation of the medical vehicles.19

b. The medical transport and personnel were the target objects

Medical personnel as well as medical transports are to be protected and respected at all

times,20 they cannot be attacked while they perform their humanitarian functions, and departure

from this principle shall constitute a war crime, whether the nature of the armed conflict is

international or a non-international in nature, this customary law is adopted and incorporated in

different manuals as well as protocols. That because of the command given by Jones to

immobilize, seized and attack these protected objects indeed constitute a war crime, it is a

departure from the settled rules provided to regulate the conducts during the armed conflict.

c. The conduct took place in context and is associated with NIAC

KAF, acting to fulfill the command given and will give the impression that it is their

official duty, the search and confiscation of medical transports as well as the prevention of

transporting armed men, will ultimately help Katoland to control over Drak which is the goal of

the conflict, is accomplished in connected with NIAC.

d. Colonel Jones is fully aware of the existence of an armed conflict

18
Facts, paragraph 23

19
Facts, paragraph 24

20
Customary International Humanitarian Law Rule 25 and 29

7
 Being the appointed Minister of Defense and Chief of the Armed Forces as Executive

Vice-Chairman of the Council21of the NCC established by the President to address the conflict

and likewise undertaking that he shall be personally supervising the operations to attain their

goals,22 Jones was fully aware of the existence of an armed conflict.

Alternatively, the prosecution submits that:

II. COLONEL C. JONES BEARS A CRIMINAL RESPONSIBILITY FOR HIS

SUBORDINATES ACT OF COMMITTING OUTRAGES UPON PERSONAL DIGNITY
IN PARTICULAR, HUMILIATING AND DEGRADING TREATMENT COMMITTED
AGAINST PERSONS TAKING NO ACTIVE PART IN THE HOSTILITIES UNDER
ARTICLE 8(2)(c)(ii) OF THE ICC STATUTE.

1.1 The male guards under Colonel Jones effective authority and control humiliated,
degraded or otherwise violated the dignity of one or more persons.

More than 800 persons were arrested and detained under the Emergency Powers

Ordinance. Among these detained and arrested persons, three women testified that the male

guards did a body search on them to which act they were touched by the latter inappropriately

and threatened to strip them naked. Additionally, they also claimed that they are only fed twice a

day; the heating system was turned off, despite almost freezing temperatures at night; there was

inadequate light and ventilation; other prisoners and male staff could watch them use the toilet;

and, they were frequently subjected to humiliating comments.23

As Executive Vice-Chairman of the National Crisis Council which enforced Emergency

Powers Ordinance as enforced, he failed to observe necessary measures to prevent the

21
Facts, paragraph 11

22
Facts, paragraph 16

23
Facts, paragraph 17

8
commission of the crime of outrages upon the personal dignity of persons committed by his

subordinates. Thus, he failed to take responsibility to effectively supervise such concerned

activities that were within his effective responsibility and control as their superior.24 Such failure

to exercise control properly over his subordinates constitutes criminal responsibility under

Article 28(b) of the ICC Statute.

1.2. The severity of the humiliation, degradation or other violation was of such
degree as to be generally recognized as an outrage upon personal dignity.

In the case of Furundžija, the International Trial Chamber opined that the very raison

d’être of international humanitarian law and human rights law is to uphold and observe the

respect for human dignity which until the modern times is being given paramount

consideration.25 Such principle protects human beings against outrages upon their personal

dignity. These outrages are being carried out by debasing the honour, self-respect and mental

well-being of a person and acts of unlawfully attack their bodies.26 As mentioned, three women

have been subjected to disrespect while being unlawfully searched and arrested by being touched

by the male guards without consent and against their will. Accordingly, it was also degrading for

the woman detainees to be locked upon a detention cell staffed entirely by men. Such actions are

manifestly a violation of their human dignity as women and generally as persons.

24
Article 28(b)(i)(ii)(iii), Rome Statute of the International Criminal Court

25
Prosecutor v. Anto Furundžija , IT-95-17/1-T, 10 December 1998, International Criminal Tribunal for the Former

Yugoslavia (ICTY) Trial Chamber II, The Netherlands

26
Ibid.

9
 Furthermore, an NGO also reported that torture in detention places. A victim testified he

was subjected to severe beatings during his interrogation at one of those unidentified location

before being transferred to the prison facility.27

1.3. The war crime of outrage upon personal dignity was committed against civilians
taking no active part in the hostilities

It was provided for under Article 13 of the Additional Protocol II that civilians are

afforded protection unless and for such time as they take direct part in the hostilities.28 The facts

mentioned however, do not also show that such persons are taking direct part in the hostilities. In

fact, they were arrested under the Emergency Powers Ordinance without substantial grounds and

proof of their direct participation in the hostilities. The Additional Protocol II intends to protect

detained persons who are deprived of liberty by reasons related to the armed conflict. Moreover,

the criterion as set in the case of Tadic29 is that the determination of the applicability of Article 4

of the Geneva Conventions of 1949 is whether at the time of the alleged offense, an alleged

victim of the proscribe acts was directly taking part in the hostilities. The victims are civilians

who are afforded protection. Hence, there is no valid justification for their arrest and detention

more so with the outrages committed against their personal dignity.

1.4. Colonel Jones was aware of the factual circumstances that established the status
of the victims.

27
Facts, paragraph 22

28
Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims

of Non-International Armed Conflicts (Protocol II), Article 13(3)

29
Prosecutor v. Tadić, IT-94-1-A, July 15,1999, International Criminal Tribunal for the FormerYugoslavia, Appeals
Chamber

10
 As Minister of Defense and Chief of the Armed Forces as Executive Vice-Chairman of

the National Crisis Council (NCC), Colonel Jones have known and should have known the

factual circumstances that established the status of the victims. It was provided that Colonel

Jones had been advocating for months that control over West Drakonia was to be re-established

at all costs to ensure Katoland’s security and check FRB’s growing influence. In fact, the NCC

first meetings led by him were dedicated to assess the current situation and to devise a proper

strategy to bring West Drakonia back under Katoland government’s full authority.30 Therefore, it

is his obligation and under his supervision and control to ascertain the status of persons to

consider whether they are valid military targets.

1.5. The conduct took place in the context of and was associated with an armed
conflict not of an international character.

Non-international armed conflicts referred to in Common Article 3 are conflicts with

armed forces on either side engaged in hostilities that are in many respects similar to an

international war, but take place within the confines of a single country.31 It was provided for

under the facts presented that the conflict is confined within one country which is the Federal

Republic of Bariland composed of 4 constituent republics namely: North Baron, South Baron,

East Drakona and Katoland.

Accordingly, a non-international conflict is distinguished from an international armed

conflict as the parties to the conflict are not sovereign States, but the government of a single

30
Facts, paragraph 12

31
Prosecutor vs. Kamuhanda, ICTR-99-54A, January 22, 2004, International Criminal Tribunal for Rwanda

11
State in conflict with one or more armed factions within its territory.32 Essentially, the conflict

arises between the Katoni and Drak populations under the same Federal Republic of Bariland.

1.6. Colonel Jones was aware of factual circumstances that established the existence
of an armed conflict.

It cannot be disputed that Colonel Jones was aware of the factual circumstance that

established the existence of an armed conflict. By virtue of his position, influence and control, he

was fully aware of the circumstances to which the plan of actions are based. In fact, it was

provided that the Council to which he was a part of as Executive Vice-Chairman, decided on

three points of action: 1) to re-establish the legitimacy of Katoland sovereignty over West

Drakonia; 2) to reinforce its military and security apparatus; 3) to diminish the influence of the

FRB in West Drakonia.33 Accused Colonel Jones was tasked to direct the preparations to be able

to assume full authority over West Drakonia by military means if necessary. These facts are

sufficient enough to establish his knowledge of the existence of an armed conflict.

III. KATOLAND EXTERNAL SECURITY AGENCY COMMITTED THE WAR CRIME

OF LAUNCHING AN EXCESSIVE ATTACK WITH A KNOWLEDGE THAT IT WILL
CAUSE INCIDENTAL LOSS OF LIFE, INJURY TO CIVILIANS, DAMAGE TO
CIVILIAN OBJECTS.

A. The KESA launched an attack.

An attack, under Article 49 of Additional Protocol I, means acts of violence against the

adversary, whether in offence or in defence.34 Cyber-attack under International Humanitarian

32
Musema vs. Prosecutor, ICTR-96-13-A, January 27, 2000, International Criminal Tribunal for Rwanda

33
Facts, paragraph 12

34
Prosecutor vs. Bahar Idriss Abu Garda

12
Law as "a cyber-operation, whether offensive or defensive, that is reasonably expected to cause

injury or death to persons or damage or destruction to objects."35 It has been established that due

to the hacking of the power plant's computer network system, there was a complete shutdown

resulting to a massive disruptions of power and water supply of Mesto as well as the residential

areas resulted in nearly five hundred civilian deaths.36 With the given definition, the attack made

to the computer system of Bargo Station falls under the definition of attack.

B. The cyber-attack caused incidental death or injury to civilians or damage to

civilian objects which was clearly excessive in relation to the concrete and direct overall
military advantage anticipated.

Rule 14 provides that launching an attack which may be expected to cause incidental loss

of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which

would be excessive in relation to the concrete and direct military advantage anticipated, is

prohibited.37 The attack resulted in the complete shutdown of the station which resulted in

massive disruptions of power supply in the affected areas.38 Further, the shutdown of the station

severely affected the electricity and water supply of Mesto as well as the residential areas in East

Drakonia and given the harsh climatic conditions at that time of the year, it resulted in nearly 500

hundred civilian deaths.39 The damage resulted from the attack on the computer system is clearly

excessive in relation to the concrete and direct overall military advantage anticipated.

35
Tallinn Manual

36
Facts, paragraph 28

37
Rule 14, Customary International Humanitarian Law

38
Facts, paragraph 27

39
Facts, paragraph 28

13
 The civilian population should be protected from the dangers arising from military

operations40 and any doubt as to whether an object normally used for civilian purposes, make an

effective contribution to military action, shall resolved in favor of the civilian purpose.41 Further,

harsh climate conditions at the time the power plant was neutralized resulted in nearly 500

civilian deaths,42 a clear consequence of a disproportionate attack and clearly beyond military

necessity.

C. The KESA knew that the attack would cause excessive incidental death or injury to
civilians or damage to civilian objects in relation to the concrete and direct overall
military advantage anticipated.

It can be inferred from the act of Katoland forces strategically stationing their Armed

Forces as well as their equipment tanks in the hills overlooking the Mesto river to control all

access roads and bridges to the city knowing that the Mesto’s electric power is supplied by Bargo

station43 that the NCC knew that the attack would cause excessive damages. Further, given how

harsh the climate was at that time of the year, the KESA must have known how excessive the

damage would be.

Given that the military base had independent sources of power,44 that only a few

buildings within the city had emergency power generators and that the territory in which the

power plant provides electricity, comprising of more than 150,000 households is too vast to

40
Additional Protocol I, Article 51(1)

41
Ibid, Article 52(3)

42
Facts, paragraph 28

43
Facts, paragraph 26

44
Facts paragraph 28

14
necessitate the attack on the said plant45 only to achieve a partial crippling of the installations on

the military base, it may be clearly inferred that NCC knew that the attack would cause excessive

damages.

D. The cyber-attack took place in the context of and was associated with an
international armed conflict.

The attack on the Bargo Station is a retaliation to the earlier attacks against Katoland’s

network in December 2009. The coordination of the attacks, as well as their timing, just a few

days after the offensive on Mesto had started, were seen as evidence that the Katoland Council

had either contracted out some organization to carry the cyber-attacks or had provided

information to existing networks in order to enable the coordination of the cyber-attacks. Some

also alleged that the Head of KESA had closed ties with organized crime syndicates specialising

on electronic fraud.46 Further, KESA’s primary responsibility was to seek the reinforcement of

cyber-security within government agencies, as well as to seek means of retaliation for the recent

cyber-attacks.

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

Being the Executive Vice Chairman of the National Crisis Council and Minister of

Defense and Chief of Armed Forces, Colonel C. Jones47 was aware of the increasing hostilities

that were happening in the West Drakonia, making him aware of the circumstances that

established the existence of Armed Conflict.

45
Facts, paragraph 26

46
Facts, paragraph 29

47
Facts, paragraph 11

15
 KESA was conscious of the damage it would cause to FRB should it attack the power

plant hence; it knew of the circumstances. The attack by KESA to the military base gave rise to

an international armed conflict between Katoland and FRB.

Alternatively, the prosection submits that:

III. COLONEL JONES BEARS A CRIMINAL RESPONSIBILITY FOR COMMITTING

A WAR CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST THE
CIVILIAN POPULATION
1. Jones directed an attack

When NCC was established, Colonel Jones was appointed as Executive Vice-Chairman

of the National Crisis Council with the Minister of Internal Affairs, KESA, and a Special

Presidential Adviser were appointed as members.48 Jones’ position of re-establishing control at

all costs is clear49 and his position in the NCC implies control over KESA as the latter were mere

members.

Although the virus was not identified and traced directly to KESA, the pieces of evidence

points that Katoland Council had contracted out some organization or had provided

information.50 In the case of Nicaragua,51 it was found that a state is liable for the intentionally

wrongful acts committed by another party when the former provides aid or assistance to the

latter, even if such acts are not specifically directed by the assisting party.52

48
Facts, [11]

49
Ibid, [12]

50
Ibid, [29]

51
NICARAGUA v. UNITED STATES OF AMERICA, June 27, 1986

52
Nicaragua, supra note 27, at ¶292(3); See also ILC Draft Articles, supra note 35, art. 16.

16
 2. The object of the attack was a civilian population

It is customary that military advantage anticipated from the attack must be considered as

a whole and not only from isolated parts thereof.53 The Bargo station provides for more than

150,000 households and the military base is located in East Drakonia, 10 km away from the

West-East Drakonia border with an estimated 8,000 stationed troops only.54 It is clear that the

object of the attack was directed against a civilian population.

3. Intended that the civilian population to be to be the object of the attack

The strategic placement of military resources over Mesto55 is the first step into carrying

out the attacks on West and East Drakonian and in order for their attacks to be successful, it is

necessary for Katoland Forces to weaken, if not cripple, the military base in Bargo in order for

them to rapidly establish control over the whole region of West Drakonia.56

4. Conduct was associated with an armed conflict not of an international character

Non-international armed conflict may be defined as that which take place in the territory

of a High Contracting Party between its armed forces and dissident armed forces or other

organized armed groups which, under responsible command, exercise such control over a part of

its territory as to enable them to carry out sustained and concerted military operations and to

implement this Protocol.57

53
https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treaty
Selected=470.
54
Facts, [26]

55
Ibid.

56
Facts, [25]

57
Additional Protocol II, (1)(1)

17
 Mesto is located in a region called West Drakonia, which attempted to be recognized as

an independent State but was unsuccessful,58 remains part of Katoland.59 Hence the conduct was

associated with a non-international armed conflict

e. Colonel Jones was aware of factual circumstances that established the existence of an
armed conflict

After a ceasefire in 2005,60 tensions began to rise again when the de facto republic held

an independence referendum on November 2009,61 West Drakonian villages were shelled, and

the President of Katoland, in a live televised address, declared that a sniper war is ongoing in the

West Drakonia Conflict Zone.62

The circumstances clearly established the fact that Katoland was aware of the factual

circumstances that established an armed conflict.

58
Facts, [8]

59
Facts, [2]
60
Facts, paragraph 8
61
Facts, paragraph 9
62
Facts, paragraph 15

18
 PRAYER FOR RELIEF

For the reasons stated above, the prosecution respectfully requests this Court to adjudge and

declare that:

I.

Colonel Calley Jones committed the war crime of violence to life and person, in particular cruel

treatment and torture under Article 8(2)(c)(i) of the ICC Statute;

II.

Colonel Calley Jones bears individual criminal responsibility for ordering the war crime of

intentionally attacking the medical transports and personnel in Corti;

Colonel Calley Jones bears a criminal responsibility for his subordinates’ act of committing

outrages upon personal dignity in particular, humiliating and degrading treatment under Article

8(2)(c)(ii) of the ICC Statute;

III.

Colonel Calley Jones committed the war crime of launching an excessive attack with a

knowledge that it will cause incidental loss of life, injury to civilians, damage to civilian objects;

Respectfully Submitted,

Agents for Applicant

19