UNIVERSITY OF ST.

LA SALLE (USLS)
COLLEGE OF LAW

Team Members:

ALEXANDRA DOMINIQUE MARIE TINSAY

NELIE FRANCE SANCHEZ
YVONNE PACETE
REYNALDO OMANDAC JR.

THE PROSECUTOR

v.

NATHAN ORKHAN

MEMORIAL FOR THE DEFENDANT

1972 words
THE PROSECUTOR

v.

NATHAN ORKHAN

Moot number
 TABLE OF CONTENTS

INDEX OF AUTHORITIES.........................................................................................................1
TREATIES, CONVENTIONS, AND OTHER LAWS...........................................................1
JUDICIAL DECISIONS...........................................................................................................1
BOOKS AND OTHER COMMENTARIES...........................................................................1
STATEMENT OF FACTS............................................................................................................2
SUMMARY OF THE PLEADINGS............................................................................................5
PLEADINGS AND AUTHORITIES...........................................................................................6
1. PRELIMINARY MATTERS............................................................................................6
2. COUNT ONE:
RE: CAPTURE OF THE OIL FIELD AND INSTALLATIONS IN THE DESERT OF
TUSKS.........................................................................................................................................7
3. COUNT TWO:
RE: CYBERATTACK AGAINST THE ANTOCH POWER PLANT.......................................8
4. COUNT THREE:
RE: REQUISITION OF LABOUR FROM PERSONNEL OF EXYL OIL AND TILIA
SECUR.......................................................................................................................................10
5. PRAYER............................................................................................................................12
 INDEX OF AUTHORITIES

TREATIES, CONVENTIONS, AND OTHER LAWS

○ Elements of Crimes, International Criminal Court, U.N. Doc. PCNICC/2000/1/Add.2
(2000) [cited as “Elements of Crimes”] .................................................................. passim
○ Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90, entered into force
July 1, 2002 [cited as the “Rome Statute”] ............................................................. passim

JUDICIAL DECISIONS
○ Prosecutor v. Tadić (The Appeals Chamber), IT-94-1, 15 July 1999
[cited as “Tadić”] .............................................................................................................. 7
○ Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (The Appeals Chamber),
ICC-01/04-01/07 OA 8, 27 August 2009 [cited as “Germain Katanga”] ..........................9
○ Prosecutor v. Sylvestre Mudacumura (Decision on the Prosecutor’s Application under
Art. 58, ICC-01/04-01/12, 13 July 2012) [cited as “Sylvestre Mudacumura”] ...............10
○ Prosecutor v. Jean-Paul Akayesu (Trial Chamber I), ICTR-96-4, 2 September 1998 [cited
as “Akayesu”] ................................................................................................................. 10
○ Prosecutor v. Dario Kordic and Mario Cerkez (Trial Chamber), IT-95014/2-T, 26
February 2001 [cited as “Kordic”] ...................................................................................11
○ Prosecutor v. Kayishema, et al. (Trial Chamber), ICTR-95-1-T, 21 May 1999 [cited as
“Kayishema and Ruzindana”] ........................................................................................ 12

BOOKS AND OTHER COMMENTARIES

○ Triffterer, Otto, Article 25 Individual Criminal Responsibility, Commentary on the Rome
Statute of the International Criminal Court: Observers' Notes, Article by Article, Nomos
Verlagsgesellschaft, 1999 [cited as “Commentary on the Rome Statute”] ................11, 24
○ Falah, Zaid, The Criminal Liability of the Arch-Criminal: The Head or Leader of a
Criminal Organization for Offences Committed by a Member of the Organization due to
his Order, 3 July 2014 [cited as “The Criminal Liability of the Arch-Criminal”] ...........8

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 STATEMENT OF FACTS

The Desert of Tusks, a desert which contains one of the largest reserves of oil in the
world which is located in the middle of the Kingdom of Khamri and Republic of Pharak. The
desert was claimed by both neighboring independent states. In 1977, both states agreed to submit
the disputed claim to the international arbitration, which later awarded the sovereignty of the
desert to the Republic of Pharak; but the Kingdom refused to accept the ruling of the
international arbitration, thus, continuing the contest of the sovereignty of the said desert. Moot
Problem “P” 3.

The Kingdom of Khamri is one of the richest State in the region. Its main export is oil
and oil products. King Sattri III ruled the kingdom from 1963 to 2009, and was succeeded by his
oldest son, King Sattri IV. The younger brother of King Sattri III, Marshal Nathan Orkhan, is the
chief of staff of the armed forces. P4.

The neighboring state of the Kingdom, Republic of Pharak is one of the poorest State in
the world. It was unstable due to the reason that there were different ethnic groups in Pharak,
which controls their respective places. In 2010, the United Nations made a peace agreement
between the different ethnic groups, in which they agreed to form a government of national
unity. P4.

On October 4, 2011, Exyl Oil made a concession agreement with the Republic of Pharak
through the Secretary of Natural Resources, leader of Chaquia militia, Gilles Kaiax. On January
1, 2016, Exyl Oil commenced the operation of the oil field, refinery and processing facility, and
powerplant, which also helps the daily needs of the civilians in Pharak. P5.

The Kingdom of Khamri increased its border controls and set up military outposts along
the border to stop the members of Chaqua from stealing cattles from the nomads, but the Chaqua
militia didn’t stop and it infiltrated the military outposts stealing food, weapons, and
ammunition. P5.
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 The Kingdom of Khamri raised diplomatic protests regarding the conflict that is
happening in the border, but the Republic of Pharak denied its protests claiming they do not have
control over the Chaqua militia. On April 25, 2017, the Chaqua militia ambushed a Khamri
military convoy killing 20 Khamrian soldiers, and capturing 10 military trucks which contain
weapons and ammunition. P6.

The conflict led to exchange of fire between the Kingdom of Khamri and Chaqua militia
which resulted in the death of 29 Chaqua members, 17 security staff of Tilia Secur, and 15
Khamrian with 11, 13, and 4 respectively wounded. During a press conference, a Khamrian
military spokesperson stated that the Kingdom of Khamri has the right to seize oil and fuel for
military purposes, which is in accordance with international humanitarian law. P7.

General Lucius Parek, the chief of operations of the Khamrian armed forces in the Desert
of Tusks, opted for a cyberattack in order to capture Antoch. The computer virus that would
force the shutdown of the power plant, without causing any physical harm and incidental injury
and damage. It effectively shut down the power plant on September 12, 2017. P8.

Unfortunately, the loss of power of the power plant had a negative effect on the lives of
the people around Antoch. A report compiled by the Pharak Red Cross, more than 500 wounded
and sick died, 750 civilians succumbed from drinking contaminated water, and 100 civilians died
due to lack of air conditioning and water in desert temperatures. P9.

After capturing Antoch, Marshall Orkan appointed Colonel Nerut Rasul as military
commander of Antoch, some parts of Desert of Tusks, and the Viper Pass which was controlled
by the Khamrian armed forces. He is responsible to maintain the local peace and security of the
said areas, continuing and maintaining the operation of the oil fields and Antoch power plant,
and the general well-being of the local populace. P9

Colonel Rasul then requested from General Lucius Patek permission to requisition the
labor of the personnel of Exyl Oil and Tilia Secur, due to lack of local qualified personnel to
operate the power plant, oil field, and its installations. It was granted by General Patek, and was

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mentioned in the general operations report to Marshal Nathan Orkhan, who was hospitalized due
to serious back injury. P9. In various medical records, it was shown that during Marshall
Orkhan’s stay in the hospital, he received a number of painkillers, including a high dose of
morphine, and was discharged on October 21, 2017 but continued to receive his doses of
morphine to combat his back pain. P10.

Due to the refusal to obey the overall majority, Colonel Rasul transferred the personnel
from their dormitories and quarters to a specially constructed barracks in a military camp in the
Desert of Tusks, in which they were kept under constant guard. P10.

Subsequently, personnel of Exyl Oil and Tilia Secur protested the treatment by refusing
to return to their quarters after dinner. The guards intervened, and a fight occurred between the
personnel and the guards. P10.

On February 14, 2018, Tilia issued a diplomatic protest to halt the labour of all personnel
of Exyl Oil and Tilia Secur; and on the following day, Marshall Orkhan ordered the stoppage of
labor of said personnel. P10. Two days following the protest, Marshall Orkhan relieved General
Lucius Patek and Colonel Nerut Rasul of their command, and they were consigned to military
quarters in a base pending a disciplinary hearing. P11.

On February 26, 2018, the Security Council acting under Chapter VII of the UN Charter
adopted Resolution 3000 (2018), demanding the immediate cessation of hostilities and the
withdrawal of all Khamrian armed forces from the Republic of Pharak; to return all personnel of
Exyl Oil and Tilia Secur; and to surrender Marshall Nathan Orkhan and other military figures to
the International Criminal Court. P11.

However, due to severe economic impact on the Kingdom of Khamri, on May 2, 2018,
King Sattri IV, through a nationally televised speech, dismissed Marshall Nathan Orkhan from
his official functions and surrendered military figures to the ICC. Nathan Orkhan was then
transferred to the custody of the ICC on May 7, 2018. P11.

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 SUMMARY OF THE PLEADINGS

I. The International Criminal Court has no jurisdiction over the case under Article 12 of the
Rome Statute. Assuming without conceding, that there is a jurisdiction, the case is
inadmissible under Article 17 of the Rome Statute. There is in fact an international armed
conflict.
II. The acts committed by Orkhan in relation to the oil field, adjacent refinery and
processing facilities in the Desert of Tusks between June 4-6, 2017 were done under
imperative military necessity. The oil field, adjacent refinery and processing facilities,
and the oil and fuel contained therein, cannot be considered as protected property defined
under international humanitarian law.
III. Orkhan, in merely giving blanket orders, did not intentionally launch an attack against the
Antoch power plant in the knowledge that such an attack will cause the incidental loss of
civilian lives. The use of cyberattack against the power plant was both necessary and
proportionate to the military objectives carried out by Khamri forces against the Chaqua
militia.
IV. The labour of the personnel the oil field, oil installations in the Desert of Tusks and the
power plant in Antoch was not directed to a civilian population rather it was for the
continued military operations against the Chaqua militia. Orkhan failed to exercise proper
command and control over the conduct of the Khamri forces present in the area.

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 PLEADINGS AND AUTHORITIES

1. PRELIMINARY MATTERS

1.1 THIS COURT HAS NO JURISDICTION OVER THIS CASE UNDER ARTICLE 12
OF THE ROME STATUTE. First, the Kingdom of Khamri is not a party to the Rome Statute
nor has it signed the Rome Statute. 1 Second, the Kingdom of Khamri did not accept ICC’s
jurisdiction by lodging a declaration pursuant to Article 12 (3) of the Rome Statute.2

1.2 ASSUMING WITHOUT CONCEDING THAT THE COURT HAS JURISDICTION,

THE CASE IS INADMISSIBLE UNDER ARTICLE 17 OF THE ROME STATUTE. The
principle of complementarity under Article 17 of the Rome Statute provides that this Court will
only prosecute an individual if states are unwilling or unable to prosecute. In this case, Orkhan
was already removed from all his official functions as a result of his conduct.3

1.3. THERE WAS AN INTERNATIONAL ARMED CONFLICT. In the Tadić case, the
International Criminal Tribunal for the former Yugoslavia (ICTY) provides that an armed
conflict is international if it takes place between two or more States.4 The alleged crimes were all
committed in the Desert of Tusks, a territory whose sovereignty was awarded to the Republic of
Pharak in 1979.5 Hence, an international armed conflict between the States of Khamri and Phrak
ensued.

1 Clarification, Moot Question No. 2

2 Ibid., Moot Question No. 40
3 Statement of Agreed Facts (38)
4 Tadić (1999)
5 Clarification, Moot Question No. 1
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 2. COUNT ONE

RE: CAPTURE OF THE OIL FIELD AND INSTALLATIONS IN THE DESERT OF

TUSKS

2.1. THE ELEMENTS OF WAR CRIME OF DESTROYING OR SEIZING THE

ENEMY’S PROPERTY UNLESS SUCH DESTRUCTION BE IMPERATIVELY
DEMANDED BY THE NECESSITIES OF WAR UNDER ARTICLE 8(2)(B)(XIII) OF
ROME STATUTE WAS NOT SATISFIED. In order to be liable for destroying or seizing the
enemy’s property under Article 8(2)(b)(xiii), the property must be protected under international
law of armed conflict.6 There was no evidence showing that the oil field and refinery is one of
the protected areas or zones under the rule of Customary International Humanitarian Law, nor
there was an express agreement between the parties to exclude the area from attacks or seizures.

2.2. THE CAPTURE OF THE OIL FIELD WAS JUSTIFIED BY MILITARY

NECESSITY. Military necessity means that armed forces can do whatever is necessary to
achieve their legitimate military objective in warfare, provided that it is not contrary or unlawful
under International Humanitarian Law.7 The order of Nathan Orkhan was vital for continued
military operations against the Chaqua,8 and was therefore necessary to attain their imperative
and legitimate military objective against the Chaqua militia who infiltrated the borders of the
Kingdom of Khamri.

2.3 NATHAN ORKHAN IS NOT CRIMINALLY LIABLE UNDER ARTICLE 25 (3)(A)

OF THE ROME STATUTE. In order to be held criminally liable as direct perpetrator, it must
be established that the person must physically carry out an objective element of the offence. 9 The
head of the armed forces who had given the order is not a direct perpetrator. 10 Orkhan, as the
chief of staff and armed forces, merely issued orders to the military units, and was not
physically present in the command centre to carry out the war crime.

6 Elements of Crimes, page 25

7 Military Necessity by David Turns
8 Statement of Agreed Facts ¶16
9 Confirmation Decision ¶136
10 The Criminal Liability of the Arch-Criminal
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Neither can he be held criminally liable through another person, since in order to be an indirect
perpetrator, one must carry out the subjective elements of the crime which they are charged
with.11

3. COUNT TWO

RE: CYBERATTACK AGAINST THE ANTOCH POWER PLANT

3.1. THE REQUISITES OF THE WAR CRIME UNDER ARTICLE 8(2)(b)(iv) WAS NOT
SATISFIED. In order to establish liability under Article 8(2)(b)(iv), the actor must have the
knowledge that the attack made would cause incidental injury or death to civilians, and the
damage or injury must be clearly excessive in relation to the concrete and direct overall military
advantage anticipated.12

3.1.1 NATHAN ORKHAN DID NOT HAVE THE KNOWLEDGE THAT THE
ATTACK WOULD CAUSE INCIDENTAL DEATH OR INJURY TO THE
CIVILIANS. Orkhan gave a blanket order to General Patek, and specifically said “which
has to be achieved without compromising the overall functioning of the power plant.” 13
Orkhan, as the Chief of Staff of the Armed Forces, 14 his function focuses on national
defense. He is not expected to know the economic policy of its neighboring states, and
specifically the means and methods of procurement of basic needs of the people in
Antoch.

3.1.2. ASSUMING WITHOUT CONCEDING THAT THERE WAS

KNOWLEDGE, THE INJURY OR DAMAGE OF THE ATTACK WAS NOT
CLEARLY EXCESSIVE IN RELATION TO CONCRETE AND DIRECT
OVERALL MILITARY ADVANTAGE ANTICIPATED. The principle of
proportionality under International Humanitarian Law states that even if there is a clear
military target, it is not possible to attack if the expected harm to the civilians is excessive

11 Germain Katanga (2009)

12 Elements of Crimes, page 19
13 Statement of Agreed Facts ¶24
14 Statement of Agreed Facts ¶2
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 in relation to the expected military advantage. 15 In this case, Orkhan gave a blanket order
to General Patek to capture Antoch16 which resulted in damage or injury which is not
clearly excessive, and in proportion to the military advantage anticipated. In fact, General
Patek’s command to launch a cyberattack is with the intention to cause less harm to the
civilians, than launching a physical harm which may cause more damage and injury to
the civilians.17

3.2 NATHAN ORKHAN IS NOT CRIMINALLY LIABLE UNDER ARTICLE 25(3)(b).

The last two elements of ordering, soliciting, and inducing the commission of a crime was not
satisfied.

3.2.1. THE ORDER DID NOT HAVE A DIRECT EFFECT ON THE

COMMISSION OF THE ALLEGED CRIME. In order to be held criminally liable for
ordering, soliciting, and inducing, there must be sufficient evidence that “the order has a
direct effect on the commission of the crime18 and “in what capacity the accused
supported the act.”19

There is no evidence that shows Orkhan’s order has a direct effect on the commission of
the alleged crime, nor how and in what capacity he supported the act. Thus, Orkhan did
not have the requisite actus reus to be criminally responsible under Article 25(3)(b) of the
Rome Statute.

3.2.2. NATHAN ORKHAN DID NOT HAVE THE MENS REA FOR
ESTABLISHING LIABILITY UNDER ARTICLE 25(3)(b). There is no evidence
showing that Marshall Orkhan had the intent or knowledge as required by the Statute,
which is established where in relation to conduct, that person means to engage in the

15 Proportionality and Precaution, Diakonia International Humanitarian Law Centre

16 Statement of Agreed Facts ¶24
17 Ibid., ¶25
18 Sylvestre Mudacumura (2012)
19 Akayesu ¶642 (1998)
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 conduct; and, in relation to a consequence, that person means to cause that consequence
or is aware that it will occur in the ordinary course of events.”20

Orkhan ordered “to design plans to capture Antoch”21 and specifically said “which has to
be achieved without compromising the overall functioning of the power plant.” 22 As mere
Chief of Staff of the Armed Forces, Orkhan’s function is merely that of the national
defense. As such, he is not expected to know the economic policy of its neighboring
states, and specifically the means and methods of procurement of basic needs of the
people in Antoch. Assuming that he had the intent or knowledge, the mere neutralization
of the power plant,23 which is the objective of Orkhan’s order, cannot be said to cause
incidental loss of life or injury per se.

Both “soliciting” and “inducing” basically refer to a situation where a person is

influenced by another to commit a crime24 and the trial chamber of ICTY holds that
“instigating” has basically the same meaning.25 In the Kordic case, it was held that the
requisite mens rea for “instigating” can be analogous to that of “ordering”. Thus, the
requisite of mens rea of “inducing” and “soliciting” can be the same to the requisite of
mens rea of “ordering”.

Therefore, Orkhan did not satisfy the mens rea requirement for ordering, soliciting, and
inducing, making him not criminally responsible under Article 25(3)(b).

4. COUNT THREE

RE: REQUISITION OF LABOUR FROM PERSONNEL OF EXYL OIL AND TILIA

SECUR

20 Rome Statute, Art. 30

21 Statement of Agreed Facts ¶24
22 Ibid., ¶24
23 Ibid., ¶24
24 Commentary on the Rome Statute, page 753
25 Kordic (2001)
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4.1. NATHAN ORKHAN IS NOT LIABLE FOR THE CRIME AGAINST HUMANITY
OF ENSLAVEMENT UNDER ARTICLE 7 (1) (C) THE ROME STATUTE. The conduct
committed was not a part of a widespread or systematic attack directed against a civilian
population.26

In the case provided, the act in procuring the labour of the personnel of Exyl Oil and Tilia Secur
was not directed to a civilian population rather it was for the continued military operations
against the Chaqua militia.27 The main reason for the requisition of the labour of the personnel of
Exyl Oil and Tilia Secur was to keep the Antoch power plant operational for water supply and
for the continuation of the function of the oil rig.28

Assuming that the conduct was a part of a widespread or systematic attack directed against a
civilian population, the required mens rea is not present in the case provided. 29 Orkhan did not
have the knowledge of the alleged crime. Orkhan must have known, or consciously disregarded
the information clearly indicated that his subordinates were committing or is about to commit a
crime.

4.2. NATHAN ORKHAN IS NOT CRIMINALLY LIABLE UNDER ARTICLE 28(a) OF

THE ROME STATUTE. Orkhan is not liable under Command Responsibility, since under
Article 28(a) of the Rome Statute, a commander must have effective control when the crime was
committed.30 Orkhan did not have effective control.

In the case provided, Orkhan was not physically present at the time of the commission of the
alleged crime. It was General Lucius Patek who initiated the requisition of the labour of the
personnel of Exyl Oil and Tilia Secur. During the time of the authorization made by General
Patek, Nathan Orkhan was hospitalized and due to excessive intake of morphine Nathan Orkhan
was under heavy sedation; and with that, the defendant, has not been in his full mental faculties
and is unaware of the effect of the decision made by his subordinates.

26 Elements of Crimes, page 26

27 Statement of Agreed Facts ¶29
28 Statement of Agreed Facts ¶30
29 Rome Statute, Art. 30
30 Kayishema and Ruzindana ¶229-23 (1999)
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 5. PRAYER

5.1. It is respectfully submitted that there is no sufficient evidence to establish substantial

grounds to believe that Nathan Orkhan committed any of the crimes charged. Accordingly, it is
requested that this court decline to confirm all the charges.

Counsels for Nathan Orkhan

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