Counts 2

Miss Akbari Begum is charged with war crime denying quarter under Article 8 (2) (b)
(xii) of ICC statute.

In the count 2 Akbari Begum is charged with denying quarter which is covered under
Article 8(2)(b)(xii), in order to determine her criminal responsibility it is important to
consider all five elements given under Article 8(2)(b)(xii) itself and to see if all these
are being satisfied in the given circumstances.

1.1 The perpetrator ordered to be left no prisoner

(The perpetrator declared or ordered that there shall be no survivors),
The element provides that the perpetrator means the person committing the
relevant act must declare or instruct his/her forces to leave no survivors which
means to keep no prisoners. The ordered of keeping no survivors evidences that
surrenders should be killed or subject to a foreseeable death which means that
even if the Victims or prisoners give up or forgoes and have no objections with
perpetrator’s actions, will still be subjected to death. 1"As it is an offence to deny
quarter to prisoners I think an officer may be convicted of a war crime if he incites
or counsels troops under his command to deny quarter, whether or not prisoners
were killed as a result thereof. It would seem to be common sense to say that not
only those members of the enemy who unlawfully kill prisoners may be charged as
war criminals, but also any superior military commander who incites and counsels
his troops to commit such offences’’, 2"If an officer, thought not a participant in or
present at the commission of a war crime incited, counselled, instigated or
procured the commission of a war crime, and a fortiori, if he ordered its
commission, he might be punished as a war criminal."

3
"There is no evidence that anyone heard any particular words uttered by the accused
which would constitute an order, but it is not essential to that such evidence be
adduced. The giving of the order may be proved circumstantially; that is to say, you
1
[
Canadian Military Court, The Abbaye Ardenne Case, Trial of S.S. Brigadefuhrer Kurt Meyer, 10-28
December 1945, Law Reports of Trials of War Criminals, UNWCC, Vol. IV, 1948, p. 107].
2
Canadian Military Court, The Abbaye Ardenne Case, Trial of S.S. Brigadefuhrer Kurt
Meyer, 10-28 December 1945, Law Reports of Trials of War Criminals, UNWCC, Vol. IV,
1948, p. 107 .
3
 [Canadian Military Court, The Abbaye Ardenne Case, Trial of S.S. Brigadefuhrer Kurt
Meyer, 10-28 December 1945, Law Reports of Trials of War Criminals, UNWCC, Vol. IV,
1948, p.108.]
may consider the facts you find to be proved bearing upon the question whether
the alleged order was given, and if you find that the only reasonable inference is
that an order that the prisoners be killed was given by the accused at the time and
place alleged, and that the prisoners were killed as a result of that order, you may
properly find the accused guilty...[B]efore the Court finds an accused person guilty
on circumstantial evidence, it must be satisfied not only that the circumstances are
consistent with the accused having committed the act, but that they are
inconsistent with any other rational conclusion than that the accused was the guilty
person.

The war crime of denying quarter is also governed by Customary International

Humanitarian Law by Rule 46 where 4 The Hague Regulations prohibits to
declare that no quarter will be given5”, moreover the Additional Protocol I
provides that it is prohibited to order that there shall be no survivors, and also to
threaten an adversary there with or to conduct hostilities on this basis 6, the ICRC
stated, “No order shall ever be given that there should be no survivors 7.”
The accused was charged, inter alia, of having ordered that survivors on life-rafts be
fired at. He was found not guilty of this charge 8, and in an other case of Le
Paradis case before the UK Court at Hamburg-Altona in 1949, a German officer was convicted of
the killing by his troops, on his orders, of members of a UK regiment which had
surrendered9, and a German army lieutenant, was convicted of having ordered the
killing of an American prisoner of war10. 

"Similarly, in the case of Akbari begum, she ordered Nadhri Mai leader of MLW
and also her soldier to identify all men over 65 years of age in Rasheedabad,
they should be buried alive in cement, the facts indicates that she is satisfying

4
Article 23 of the 1907
5
Regulation concerning the laws and customs of war on land, Annexed to
convention (iv) respecting the laws and customs of war on land, The Hague, 18 Oct
1907, Article 23(d)
6
Protocol Additional to the Geneva convention of 12 August 1949, and relating to
the protection of victims of international Armed Conflicts (protocol I), Geneva, 8
June 1977, Article 40.[protocol Additional II Geneva 8 June 1977, Article 4(1), Article
4 was adopted by consensus, CDDH, Official Records, vol, vii, CDDH/SR,50, 3 June
1977, p.90.
7
ICRC, Memorandum on Respect for international Humanitarian law in Angola, 8
June 1994, II IRRC, No 320, 1997, p, 504.
8
UK, Military court at Hamburg, Van Rouchteschell case, Judgement, 21 May 1947.
9
Le Paradis case before the UK Court at Hamburg-Altona in 1949
10
US, Military commission at Augsburg, Thiele case, Judgement, 13 June 1945
the first element as she ordered to give no quarter to male people over 65, she
wanted to left no survivor.

The declaration was given in order to threat opponents

that left no survivors
(Such declaration or order was given in order to threaten an adversary or
to conduct hostilities on the basis that there shall be no survivors)
The second element provides the mental state of the person instructing his/her
forces that declaration or order that there shall be no survivors is meant to threat
opponents where it is intended to provoke the immediate surrender of the
opponents and to create extreme fear to adversary by threatening as there is no
survivor left, or perpetrator intends to conduct hostilities for leaving no prisoner
which means that the person declaring or ordering his/her forces to use military
tools in order to refuse surrenders or take no prisoner. “Article 8 (2) (b) (xii) deals
with two possible situation where the declaration is made openly (eg: a “public threat”),
or it remains an internal matter (eg: an order within a unit of the armed forced) 11, AP-I
forbids both to threaten the opponent with a declaration of ruthless warfare and to
conduct hostilities in this way12. The accused was held liable for issuing an order to
the effect that all prisoners and wounded were to be killed 13, “The prohibition to declare
that no quarter shall be given thus also means that parties to a conflict “forgo using [weapons]
in such a way that it would amount to a refusal to give quarter”, which however does not imply
that any particular weapon would be prohibited per se. While the use of particular weapons or
categories of weapons may amount amount to a war crime under article 8 para.2 (b) (xvii)-(xx),
the prohibition of refusing quarter may thus be considered as complementing the principle
which prohibits methods of warfare of a nature to cause superfluous injury or unnecessary
suffering. However, a commander has clearly no obligation to offer an opportunity to surrender
before attacking adversary combatants if this would constitute an imporportional military
disadvantage, such as when surprise or speed are essential for the success of an attack 14.” A
Company Sergeant Major had read to him and the rest of the .H.Q. Company, while on parade,
certain secret orders, which the Company had had to sign, to signify that they understood
them, and which included instructions that if prisoners were taken they were to be shot after
interrogation15”, It is prohibited to deny quarter. In other words, it is unlawful to
order, imply or encourage that no prisoners will be taken; to threaten an adversary

11
Gerhard Werle, Principles of International Criminal Law (2005), para. 1077
12
Additional Protocol I, Article 40.
13
Karl Strenger and Benno Crusius Case, in C. Mullins, The Leipzig Trials (H.F. and G. Witherby,
London, 1921), p. 115 ff, [Knut Dörmann, Elements of War Crimes under the Rome
Statute of the ICC (2005), p. 247]
14
Otto Triffterer, ed, Commentary on the Rome Statute of the ICC (1999), chapter 8,

para. 136.
party that such an order will be given; or to conduct hostilities on the basis that no
prisoners will be taken16. 

The perpetrator has effective control over

subordinates: [The perpetrator was in a position of effective
command or control over the subordinate forces to which the declaration or
order was directed].

This is the conduct element which provides that the perpetrator has
effective control or control over his/her commanders to whom the
declaration or instructions are given to carry out actions. The effective
control provides the de facto or de jure position of authority, the de facto
position of authority which establishes or develops through practice thus,
the authority of perpetrator where he/she enjoys his/her position of
authority which is based on the informal structure, the perpetrator
assumes authority in a de facto army as a role of civilian leader, there is
kind of implied understanding of position between commander and
subordinates and that authority can be reasonably implied whereas, de
jure position of authority recognized by law where there is a hierarchical
relationship between the superior and subordinate and the superior has
chain of commands and it indicates the clear organized military units and
then there is separate division of the area of activity for each unit where
member’s tasks and responsibility are defined in formal manner. Secondly
effective control over subordinates forces which means that the
perpetrator could control the conduct of subordinates that indicates the
perpetrator was able to control the actions of his or her forces, he or she
has authority to punish for actions or to prevent forces from acting, and
the perpetrator has ability to give or sign orders in his/her administration
and the subordinates follow the orders of perpetrator and responds them,
they wait for the instructions of perpetrator and act after getting any

15
The Abbaye Ardenne Case. Trial of S.S. Brugadefuhrer Kurt Meyer, Canadian Military court,
Aurich, Germany, 10h-28th, December 1945, Law Reports of Trials of War Criminals, UNWCC,
Vol.IV, 1948, p. 101.
16
Canada, code of conduct for CF personal, office of the judge Advocate General, 4 June 2001,
rule 5&2, [Rule 5 canda’s code of conduct 2005]
order or direction. "All the facts and circumstances must [...] be taken into
account to establish that if the accused was actually responsible The rank
of the accused, the duties and responsibilities of the accused by virtue of
the command he held, the training of the men under his command, their
age and experience, anything relating to the question whether the
accused either ordered, encouraged or verbally or tacitly acquiesced in the
killing of prisoners, or wilfully failed in his duty as a military commander to
prevent, or to take such action as the circumstances required to
endeavour to prevent, the killing of prisoners, were matters affecting the
question of the accused's responsibility ." The wording of element 3 of the
17

crime refers to the concept of effective command and control as seen as

“Responsibility of commanders and other superiors” , “superiors” in general
18

19
who exercise control over subordinates , Article 86 does not only apply to superiors “under
whose direct orders the subordinate is placed” but instead “should be seen in terms of a
hierarchy encompassing the concept of control”20, Furthermore, Article 87 of Protocol I specifies
that the duties of military commanders extend not only to “armed forces under their
command”, but also to “other persons under their control”. Accordingly, a commander may
incur criminal responsibility for crimes committed by persons who are not formally his direct
subordinates, insofar as he exercises effective control over them, military superiors, civilian
superiors will only be held liable under the doctrine of superior criminal
responsibility if they were part of a superior -subordinate relationship, even if that
relationship is an indirect one21, According to the Trial Chamber in Celebici, for a civilian
superior’s degree of control to be “similar to” that of a military commander, the control

over subordinates must be “effective”, and the superior must, have the “material

ability” to prevent and punish any offences. Furthermore, the exercise of de

facto authority must be accompanied by “the trappings of the exercise of de

jure authority”. The present Chamber concurs. The Chamber is of the view that these

trappings of authority include, for example, awareness of a chain of command, the

17
Canadian Military Court, The Abbaye Ardenne Case, Trial of S.S. Brigadefuhrer Kurt
Meyer, 10-28 December 1945, Law Reports of Trials of War Criminals, UNWCC, Vol. IV,
1948, p.108.
18
Art. 28 of the Rome Statute
19
Article 7(3) of the ICTY Statute and Article 86 of Protocol I
20
ICRC Commentary to Additional Protocol I, para. 3544, p.1013
21
Prosecutor v Dario Kordic and Mario Cerkez 26 february 2001, para.415 .
practice of issuing and obeying orders, and the expectation that insubordination may lead

to disciplinary action. It is by these trappings that the law distinguishes civilian superiors
from mere rabble-rousers or other persons of influence.” 22
The Naletilic Trial Chamber
also emphasized the importance of effective control in determining whether
command responsibility arises. 23 Even though the actual knowledge cannot be
presumed, but the fact that an individual was a commanding officer may be used to
show that he or she had knowledge of the acts of his or her subordinates 24, For a
commander/superior to “have reason to know,” ICTY jurisprudence dictates that: a
superior can be held criminally responsible only if some specific information was in
fact available to him which would provide notice of offences committed by his
subordinates. This information need not be such that it by itself was sufficient to
compel the conclusion of the existence of such crimes. It is sufficient that the
superior was put on further inquiry by the information, or, in other words, that it
indicated the need for additional investigation in order to ascertain whether
offences were being committed or about to be committed by his subordinates 25,
According to the Aleksovski Trial Chamber, “the decisive criterion in determining
who is a superior according to customary international law is not only the accused’s
formal legal status but also his ability, as demonstrated by his duties and
competence, to exercise control. As the Trial Chamber already noted in
the Celebici case, “the factor that determines liability for this type of criminal
responsibility is the actual possession, or non-possession, of powers of control over
the actions of subordinates26.

22
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June

2001, para. 43:

23
Naletilic Trial Judgment, ¶ 66
24
id. ¶ 71
25
Id. ¶ 74 (citing Mucic Trial Judgment, ¶ 393).
26
(Celebici, para. 370).” (Aleksovski Trial Chamber, Judgment, para. 76).
The actions took place in the international armed
conflict [The conduct took place in the context of and was associated
with an international armed conflict].

The fourth states that the perpetrator acted in the circumstance which is associated or
attributed with an international armed circumstances, an armed conflict that is falling
under the ambit of Article 8(2)(b) ICC, the international character of an armed
conflict which takes place between two or more states. "Furthermore, article 8(1) of
the Statute states that the Court "shall have jurisdiction in respect of war crimes in
particular when committed as part of a plan or policy or as part of a large-scale
commission of such crimes". The article therefore does not articulate a strict
requirement for the exercise of the Court’s jurisdiction over war crimes only in
these circumstances, but only gives "a particular guideline for the Court".
Accordingly, a single act could also amount to a war crime within the jurisdiction of
the Court if it was committed in the context of and was associated with an armed
conflict"27. "It is indisputable that an armed conflict is international if it takes place
between two or more States. In addition, in case of an internal armed conflict
breaking out on the territory of a State, it may become international (or depending
upon the circumstances, be international in character alongside an internal armed
conflict) if (i) another State intervenes in that conflict through its troops, or
alternatively if (ii) some of the participants in the internal armed conflict act on
behalf of that other State28." In order to determine whether a conflict which
involves different forces from within the same state fighting each other should be
regarded as international, the Appeals Chamber of the ICTY in Tadić focused on the
international law doctrine of state responsibility: "The Appeals Chamber thus
considers that the Third Geneva Convention, by providing in Article 4 the
requirement of 'belonging to a Party to the conflict', implicitly refers to a test of
control." The Chamber wants to recall that an armed conflict that starts on the territory of a
state and that is internal at the beginning can nonetheless be considered as an international
conflict if the troops of another state intervene in that conflict or if some actors of the internal
armed conflict act on the behalf of this other state. This intervention must be proven in facts to
conclude that an international armed conflict occurred. The Chamber recalls that in order to
determine if the conflict presents an international character, it must ne considered as a whole
and that it is not necessary to prove the presence of troops belonging to the foreign army in
each of the places where crimes are charged29. "To assess if an international armed conflict
exists by reason of the indirect participation of a State, the Chamber must analyse and appraise
the degree of control exerted by that State over one of the armed groups participating in the

27
In the Mbarushimana Decision on the Confirmation of Charges, the Pre-Trial Chamber
28
Appeals Chamber in the Tadić Appeals Judgment,
29
ICTY, Prosecutor v. Prlić, "Judgment", IT-04-74-T (vol. 3), 29 May 2013,
para. 518
hostilities. In appraising the degree of such control, Trial Chamber I held the "overall control"
test to be the correct approach, allowing a determination as to whether an armed conflict not
of an international character has become internationalised due to the involvement of armed
forces acting on behalf of another State. That test is met when the State "has a role in
organising, co-ordinating or planning the military actions of the military group, in addition to
financing, training and equipping or providing operational support to that group". It is not
required that the State give specific orders or direct each military operation"30

The perpetrator has knowledge of the factual

circumstances [The perpetrator was aware of factual circumstances
that established the existence of an armed conflict.]
The fifth element provides the mental state of the perpetrator which requires that
he/she must be aware of the given circumstances in which he/she acts. The
awareness of the perpetrator means he/she has the knowledge of the
circumstances in which perpetrator carries out his actions31, "The Appeals Chamber
concludes that the existence and international character of an armed conflict are both
jurisdictional prerequisites (as established in Tadić) and substantive elements of crimes
pursuant to Article 2 of the Statute. The fact that something is a jurisdictional prerequisite does
not mean that it does not at the same time constitute an element of a crime. If certain conduct
becomes a crime under the Statute only if it occurs in the context of an international armed
conflict, the existence of such a conflict is not merely a jurisdictional prerequisite: it is a
substantive element of the crime charged. Thus, the Prosecution's obligation to prove intent
also encompasses the accused's knowledge of the facts pertinent to the internationality of an
armed conflict32, "the Prosecution has to show 'that the accused knew that his crimes' had a
nexus to an international armed conflict, or at least that he had knowledge of the factual
circumstances later bringing the Judges to the conclusion that the armed conflict was an
international one. This aspect of the mens rea requirement for Article 2 crimes does not require
that a perpetrator correctly subsume facts known to him during the commission of the crime
into a particular legal characterization. This is the task of the judge (iura novit curia). The
perpetrator only needs to be aware of factual circumstances on which the judge finally
determines the existence of the armed conflict and the international (or internal) character
thereof. It is a general principle of criminal law that the correct legal classification of a conduct
by the perpetrator is not required. The principle of individual guilt, however, demands sufficient
awareness of factual circumstances establishing the armed conflict and its (international or
internal) character. [...] Consequently, the Appeals Chamber finds that the principle of
individual guilt requires that the accused's awareness of factual circumstances establishing the
armed conflict's international character must be proven by the Prosecution. The Trial Chamber
erred in law in failing to so find explicitly."33

30
In the Katanga Trial Judgement,
31
Article 30 ICC (mental element)
32
ICTY, Prosecutor v. Naletilić and Martinović ("Tuta and Štela"), "Appeals
Judgement", IT-98-34-A
33
Ibid [32]
Defence Arguments
Akbari is charged with war crime of denying quarter under article 8 (2)(b)(xii) in

which the fourth element provides that perpetrator’s conduct must take place in

the circumstance which is associated with the international character of armed

conflict however, in the case of Akbari Begum where the conflict has taken place

between state’s authority AMCU and HAI which is organized by Askari Begum

therefore the facts indicate that the armed is taking place within the same territory

of Haaripur whereas the MLW is brought from Sri Huhan which is taking part for the

assistance of Akbari Begum hence the conflict is not between Haaripur and Sri

Huhan thus, this shows that the armed conflict is not of international character but

it seems to be an armed conflict of non-international character which is provided

under Article 8 (2) (e)(x) war crime of denying quarter, the armed conflict of non-

international entails that an armed violence which exists between governmental

authorities and organized armed groups such group exists within a state. It clearly
established that the charge made on Akbari begum is not correct one, therefore she

can’t be held liable for denying quarter under article 8(2)(b)(xii).