19th Henry Dunant Memorial Moot Court Competition, 2019

Original: English Date: 19-22 September 2019

No.: ICC-01/__________

ICC TRIAL CHAMBER

At The Hague

SITUATION IN THE STATE OF SOHULWA & ROKUMBA

IN THE CASE OF

THE PROSECUTOR v. Z. KARMONIC

PUBLIC DOCUMENT

WRITTEN SUBMISSIONS ON BEHALF OF THE PROSECUTION

THE PROSECUTOR

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TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………….3

STATEMENT OF JURISDICTION……………………………………………………….4

ISSUES RAISED…………………………………………………………………………..5

STATEMENT OF FACT………………………………………………………………….6

SUMMARY OF PLEADINGS……………………………………………………………9

PLEADINGS……………………………………………………………………………...10

I. Mr. Z. Karmonic is guilty under Art. 6(a) of Rome Statute for Genocide by

Killing……………………………………………………………………….……….…..10

II. Mr. Z. Karmonic is guilty of War Crime under Art. 8 (2) (b) (ii) for intentionally

directing attack against nuclear energy plants of Rokumba………………………….16

III. Mr. Z. Karmonic is guilty under Art. 8 (2) (b) (iv) for War Crime of Excessive,

Incidental Death, Injury or Damage……………………………………………………23

PRAYER…………………………………………………………………………………..25

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INDEX OF AUTHORITIES

CASES
1. Stakić Appeal Judgement
2. Jelisić Appeal Judgement
3. Krstić Appeal Judgement
4. Popović et al. Appeal Judgement
5. Gacumbitsi Appeal Judgement
6. Prosecutor v. Seromba Athanase, ICTR-2001-66-A
7. Nahimana et al. Appeal Judgement
8. ICJ Bosnia Judgement
9. Brđanin Trial Judgement, para. 688; Stakić Trial Judgement
10. Kvočka et al. Appeal Judgement
11. Orić Trial Judgement
12. Prosecutor v. Galić, Case No. IT-98-29-T, Judgement and Opinion, ¶ 51 (Int’l Crim. Trib.
for the Former Yugoslavia Dec. 5, 2003).
13. ICTY, Tadić Appeal judgment, 15 July 1999
14. ICTY, Prosecutor v. Naletilić and Martinović ("Tuta and Štela"), "Appeals Judgement",
IT-98-34-A.
15. ICTY, Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,
2 October 1995, para. 70.
16. ICC, Lubanga Decision on the confirmation of charges, 29 January 2007, para. 207.

STATUTES
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 2187 U.N.T.S. 90

TREATIES
International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of International
Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3. ............................................ passim

YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF

INTERNATIONAL ARMED CONFLICT 86, 87 (2004).

ARTICLES
1. Nuclear Threat Initiative, Cyber-attacks on Nuclear Power Plants: How Worried
Should We Be?
2. Johan D. Van der Vyver, The International Criminal Court And The Concept Of Mens
Rea In International Criminal Law, 12 U. Miami Int‘l & Comp. L. Rev. 57 (2005)
3. Black‘s Law online legal dictionary, 2nd Edition.
4. Four Geneva Conventions of 1949
5. Two Protocols additional to Geneva Conventions of 1977

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STATEMENT OF JURISDICTION

It is hereinafter most respectfully submitted that the Prosecutor of this International

Criminal Court has the jurisdiction to exercise this petition under Article 5 read with Article

13 of the Rome Statute of the International Criminal Court, 1998. Article 5(1) states as follows

“The jurisdiction of the Court shall be limited to the most serious crimes of concern to

the international community as a while. The Court has jurisdiction in accordance with this

Statute with respect to the following crimes:

(a) The Crime of Genocide;

(b) Crimes against humanity;

(c) War Crimes;

(d) The Crime of Aggression.”

And all the countries of Sarozula subcontinent have ratified the statute of International

Criminal Court in 20061

1
¶3 Page 14, Moot Problem.

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ISSUES RAISED

The Prosecutor respectfully asks this Honourable Court:

I. Whether Mr. Z. Karmonic be found guilty for Crimes of Genocide under Article

6(a) of ICC Statute for allegedly causing the killing of followers of Rokum religion

on night of 25th May 2018;

II. Whether Mr. Z Karmonic be found guilty of committing War Crime under Article

8(2)(b)(ii) for intentionally directing attack against nuclear energy plants of

Rokumba ;

III. Whether Mr. Z Karmonic be found guilty of committing War Crime under Article

8(2)(b)(iv) for intentionally launching an attack against the nuclear energy plants

of Rokumba, with the knowledge and intention of causing incidental loss of life

and injury to civilians and widespread, long-term and severe damage to the natural

environment that is excessive to the concrete and direct military advantage

anticipated;

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STATEMENT OF FACTS

(¶1.) This eastern portion of continent Z comprises of four countries. Sohulwa is one among

them. The other three countries of the region are Sambhota, Zumanja and Rokumba. This

portion of continent Z is also known as Sarozula subcontinent. The present political

boundaries of this subcontinent are the result of the Treaty of Sarozula. The region was

primarily occupied by four different religious groups: Sohu, Sambho, Zuma and Rokum. The

countries of Sarozula achieved independence together in 1955.

(¶2.) On 11 March 2018, Sohulwa immediately stopped all supplies from Lands for Sarozula

(LfS) to Rokumba and ordered all citizens of Rokumba to leave Sohulwa within 48 hours.

(¶3.) On 13 March 2018, it was reported by Sohulwa’s officials that there was no trace of five

hundred Rokumba nationals who had been working in Sohulwa on LFS areas. The next day,

Rokumbain authorities took two hundred Sohulwan students and faculty members of the

University of Sarozula, situated in the capital city of Rokumba, into custody.

(¶4.) On 30 March 2018, a Facebook account under the name “Help Sarozula “was created by

Mr. Z. Karmonic. Mr. Z. Karmonic was an ardent follower of SoS and at that time was the

head of its cyber wing.. Posts on the page spurted venom against Rokumba. An invitation to

march towards the borders of Rokumba and to congregate along the border on 15 April 2018

was issued on this page. After that, this Facebook account become defunct, but this message

was shared, copied and pasted thousand times on different Facebook accounts.

(¶5.) The Sohulwa government arrested Mr. Z. Karmonic, on the grounds of inciting public

disobedience, and appealed to the public not to follow the Help Sarozula’s call to march.

(¶6.) On 17 April 2018, through a Press Statement, a group of the marchers declared the

formation of the group, Help Sarozula and announced the leader as Mr. Z Karmonic.

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(¶7.) On 20 April 2018, there were a series of bomb blasts on Rokum religious sites inside the

capital of Rokumba. On the next day, there was a sudden uprising against the government in

the capital of Sohulwa. Mr. Z Karmonic was reported missing from custody, along with many

other inmates, as jail breaks were reported.

(¶8.) The Facebook page Help Sarozula became active once again on 24 April 2018. The

account immediately started commenting disparagingly on Rokumba and the Rokum religion.

(¶9.) On 25 April 2018, a group of Help Sarozula protestors wearing similar clothing, with the

inscription ‘HS Fighters’ and carrying arms, attempted to cross the border. This elicited

retaliatory firing and mortar attacks from the Rokumba’s armed forces.

(¶10.) With the help of the International Committee of the Red Cross (popularly known as the

ICRC), negotiations between the parties to the conflict started to ensure safety and security of

captives of all sides. On 25 May 2018, while negotiations were ongoing, a Facebook post

carrying ICRC insignia claimed that negotiations between the two countries had failed. This

post was first shared on Facebook by Mr. Z. Karmonic, with the caption “Should Rokums be

taught in their own ways all over Sarozula immediately!” At the same time, the official ICRC

website was hacked and pictures of some dead bodies in bad shape, appeared with the caption

‘Sorry to Humanity’ on its website.

(¶11.) By the evening of 25 May 2018, large scale riots spread across Sohulwa and the Rokum

minorities found themselves targeted by mobs. Almost six hundred Rokum minorities, of

Sohulwa nationality, were killed in one night. The ICRC categorically denied issuing the

Facebook post that had been attributed to them, claiming that the post was fake. The ICRC

also confirmed that its website had been hacked.

(¶12.) On 5 June 2018, the government of Sohulwa granted a pardon to Mr. Z. Karmonic for

his past activities and made him the head of the cyber cell of the Sohulwa’s armed forces.

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(¶13.) On 15 July 2018, when armed forces of Rokumba crossed R2, there were sudden blasts

in both nuclear energy plants of Rokumba. These blasts resulted in radioactive leaks and

caused great sufferings. One thousand employees working in these nuclear units and other

surrounding industries died on the spot due to the radioactive leakage from the blast. These

blasts also caused severe damage to the natural environment that were patently look hard to

be compensated in a decade or so. Many small rivers of Rokumba got extremely polluted and

full with the dead bodies of many aquatic creatures.

(¶14.) In response the UN Security Council passed resolution and urged all parties to the

conflict to immediately cease all hostilities on humanitarian grounds. It also constituted four

committees.

(¶15.) On 5 April 2019, cyber experts from the first committee, with the help of Sohulwan

security forces found a set of ten super computers, which were connected with each other, in

an underground room in a village near Sohulwa’s capital. The Committee alleged that these

were the computers through which software programmes aimed to target the nuclear power

plants of Rokumba were developed.

On 8 April 2019, the second committee issued its first report wherein it found that the

chemicals leaked by the blast have caused serious existential threat in the surrounding areas

and primarily responsible for death of aquatic creatures. It stated that probably it would not

be possible to restore the affected environment back to its pristine glory in next two decades.

On 10 April 2019, the fourth committee highlighted three incidences that it recommended

merited further investigation. After complying with all formalities the ICC issued arrest

warrants against five persons including Mr. Z. Karmonic, on 15 June 2019.

(¶16.) Mr. Z. Karmonic was arrested on 10 June 2019, from a village in Sohulwa.

Subsequently he was handed over to the ICC.

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SUMMARY OF PLEADINGS

I. Mr. Z. Karmonic committed the crime of Genocide by causing the killing of

followers of Rokum religion on the night of 25th May 2018 and is guilty under Art.

6(a) of the Rome Statute. He is also individually liable under Art. 25 (2),(3). The

mental element under Art. 30 is also satisfied by way of conduct, consequence and

knowledge of consequence that will occur in ordinary course of events.

II. Mr. Z. Karmonic committed war crimes under Art. 8(2) (b) (ii) by intentionally

directing the attack against nuclear energy plants of Rokumba, a civilian object

during an international armed conflict. He was was aware of factual circumstances

that established the existence of an armed conflict. He is also individually liable

under Art. 25 (2),(3). The mental element under Art. 30 is also satisfied by way of

conduct, consequence and knowledge of consequence that will occur in ordinary

course of events.

III. Mr. Z. Karmonic committed war crimes under Art. 8(2) (b)(iv) by intentionally

launching an attack against the nuclear energy plants of Rokumba, with the

knowledge and intention of causing incidental loss of life and injury to civilians

and widespread, long-term and severe damage to the natural environment that is

excessive to the concrete and direct military advantage anticipated He is also

individually liable under Art. 25 (2),(3). The mental element under Art. 30 is also

satisfied by way of conduct, consequence and knowledge of consequence that will

occur in ordinary course of events.

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PLEADINGS

I. Mr. Z. Karmonic is guilty under Art. 6(a) of Rome Statute for Genocide by

Killing.

(¶1.) On 25th May 2018, Mr. Z. Karmonic was the first person to share with caption “Should

Rokums be taught in their own ways all over Sarozula immediately!” a Facebook post

carrying ICRC insignia claiming that the negotiations between Sohulwa and Rokumba had

failed and the ICRC deplored the brutal killings of all the captives at the hand of Rokumban

Government. As a direct consequence of such a post by him, in ordinary course of events large

scale riots were spread across Sohulwa by the evening and the Rokum minorities were targeted

by Mobs. Almost 600 Rokum minorities, of Sohulwa nationality were killed in one night.2

(A.) That the deceased persons belonged to particular national, or religious group.

(¶2.)The crime of genocide pertains to the destruction of a race, tribe, nation, or other group

with a particular positive identity.3 The determination of the composition of the group is

necessarily made on a case-by-case basis.4 It is humbly submitted that in this particular case

all the deceased who were killed in the riots on the night of 25th May 2018 were the followers

of Rokum religion.5

(B) That Mr. Z. Karmonic intended to destroy, in whole or in part, all the followers of

Rokum religion and the citizens of Rokumba.

(¶3.)The mens rea required for the crime of genocide—“intent to destroy, in whole or in part,

a national, ethnical, racial or religious group” has been referred to variously as, for instance,

special intent, dolus specialis, particular intent and genocidal intent. 6 Genocide requires not

2
Para 2 & 3, Page 11, Moot Problem
3
Stakić Appeal Judgement, para. 21.
4
Stakić Appeal Judgement, para. 25. fn. 68;
5
Para 3, page 11, Moot Problem
6
Jelisić Appeal Judgement, para. 45;

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only proof of intent to commit the alleged acts of genocide, but also proof of the specific intent

to destroy the protected group, in whole or in part.7 In assessing evidence of genocidal intent,

a Chamber should consider whether “all of the evidence, taken together, demonstrates a

genocidal mental state” Where direct evidence of genocidal intent is absent, the intent may

still be inferred from all the facts and circumstances.8

(¶4.) The Facts and circumstances connecting the chain of circumstantial evidence from which

the genocidal intent and actus reus of Mr. Z. Karmonic can be inferred are as follows –

a. It is humbly submitted that on 30th March 2018 a Facebook account under the name “Help

Sarozula” was created by Mr. Z. Karmonic who was an ardent follower of a non-political

religious outfit ‘Sarozula of Sohus’ which advocated adoption of the religion of whole earth

(i.e. Sohu) by the religious minorities living in Sarozula. He held a degree in computer

engineering from the world’s most reputed institution. The popularity of the aforesaid

Facebook page along with its creator spread very rapidly. The posts on page spurted venom

against Rokumba and Rokum religion. This signifies the amount of hatred he had for the

followers of Rokum Religion.

b. On 15th April 2018 an invitation to march towards the border of Rokumba and to congregate

along the border was issued by Mr. Z. Karmonic on this page. After that, this Facebook

account become defunct, but this message was shared, copied and pasted thousand times on

different Facebook accounts. This signifies that Mr. Z. Karmonic had huge number of

followers on the Facebook and any message posted by him had a potential to reach to large

number of public within very short span of time.

c. Responding to the aforesaid invitation by Mr. Z. Karmonic which spread like fire on the social

media many people started to march towards the Rokumba border with sticks and machetes

7
Krstić Appeal Judgement, para. 20.
8
Popović et al. Appeal Judgement, para. 468;

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in hand to protest against detention of Sohulwian students and faculty by Rokumbian

Government. The Sohulwa government arrested Mr. Z. Karmonic, on the grounds of inciting

public disobedience. However, almost twenty five thousand people assembled at the border

between Sohulwa and Rokumba on 15 April 2018.

d. On 17 April 2018, through a Press Statement, a group of the marchers declared the formation

of the group, Help Sarozula and announced the leader as Mr. Z Karmonic. The organizational

structure of this group was also shared with media. This fact signifies that the followers of

Sohu Religion have assumed Mr. Z. Karmonic as their leader and from now they ought to

follow the call or directions of their leader promptly without applying their individual

prudence

e. It is humbly submitted that on 21st April 2018, there was a sudden uprising against the

government in the capital of Sohulwa. Mr. Z Karmonic was reported missing from custody,

along with many other inmates, as jail breaks were reported.

f. On 22 April 2018, Rokumba launched missile attacks on five SoS offices situated in Sohulwa.

The Facebook page Help Sarozula became active once again on 24 April 2018. The account

immediately started commenting disparagingly on Rokumba and the Rokum religion. This

signifies that the owner of page i.e. Mr. Z. Karmonic once again became active on social media

platform to influence and directly incite the followers of Sohu Religion against the Rokumbian

Government and followers of Rokum Religion.

g. It is humbly submitted that Mr. Z. Karmonic issued a call for bravery and in prompt response

to his call on 25 April 2018, a group of Help Sarozula protestors wearing similar clothing,

with the inscription ‘HS Fighters’ and carrying arms, attempted to cross the border. This

elicited retaliatory firing and from the Rokumba’s armed forces. Almost five hundred people

from both sides were killed in these hostilities.

Thus, it is clearly evident from the incidences of 15th April 2018 and 25th April 2018 that the

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followers of Sohu religion were under undue influence of Mr. Z. Karmonic and in both the

incidences they promptly responded to the call by Mr. Z. Karmonic. Hence, any message of

Mr. Z. Karmonic on social media worked as a tool for direct public incitement and was rapidly

conveyed to large amount of public by means of sharing on social media.

h. It is humbly submitted that with the help of International Committee of the Red Cross (ICRC),

negotiations between the parties to conflict started to ensure safety and security of captives of

all sides.

i. On 25th May 2018, Mr. Z. Karmonic was the first person to share with caption “Should

Rokums be taught in their own ways all over Sarozula immediately!” a Facebook post

carrying ICRC insignia claiming that the negotiations between Sohulwa and Rokumba had

failed and the ICRC deplored the brutal killings of all the captives at the hand of Rokumban

Government. At the same time, the official ICRC website was hacked and pictures of some

dead bodies in bad shape, appeared with the caption ‘Sorry to Humanity ‘on its website.

j. Display of intent through public speeches9 may also support an inference as to the requisite

specific intent. It is humbly submitted that caption written by Mr. Z. Karmonic was a form of

public speech. The aforesaid caption written by Mr. Z. Karmonic in the manner of question

asking to teach a lesson to followers of Rokum Religion was in itself a call to kill the members

of Rokum religion in the territory of Sohulwa. The word “Immediately” used in the caption

signifies that the followers of Mr. Z. Karmonic and Help Sarozula were required to act

promptly on the aforesaid call.

(¶5.)In the case of Prosecutor v. Seromba Athanase 10the Appeals Chamber recalls that in

the context of genocide, however, “direct and physical perpetration” need not mean physical

killing; other acts can constitute direct participation in the actus reus of the crime. The Court

9
Gacumbitsi Appeal Judgement, para. 43.
10
Prosecutor v. Seromba Athanase, ICTR-2001-66-A

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held that it is irrelevant that Athanase Seromba did not personally drive the bulldozer that

destroyed the church. What is important is that Athanase Seromba fully exercised his influence

over the bulldozer driver. The Appeals Chamber recalls that a person may be found guilty of

direct and public incitement to commit genocide, if he or she directly and publicly incited the

commission of genocide (actus reus) and had the intent to directly and publicly incite others

to commit genocide (mens rea)11

(¶6.)In respect of the crime of genocide, according to Article 25(3) (e) of Rome Statute a

person shall be criminally responsible and liable for punishment for a crime within the

jurisdiction of the Court if that person, directly and publicly incites others to commit genocide.

(¶7.)It is humbly submitted that it was the post with Mr. Z. Karmonic’s caption and not the

original post which was widely shared on social media and spread like wildfire on social

media. This amounts to direct public incitement by Mr. Z. Karmonic.

(¶8.)The mental element under Article 30 is satisfied because it can be inferred from the

aforesaid conducts of Mr. Z. Karmonic that he means to cause the desired consequence i.e.

killing of Rokums and was aware and had knowledge that such consequence will occur in

ordinary course of events after publishing the aforesaid Facebook post. As a direct

consequence of such a post by him, in ordinary course of events large scale riots were spread

across Sohulwa by the evening and the Rokum minorities were targeted by Mobs. Almost 600

Rokum minorities, of Sohulwa nationality were killed in one night.12

(¶9.)The specific intent to destroy the group “as such” makes genocide an exceptionally grave

crime and distinguishes it from other serious crimes, such as persecutions as a crime against

humanity.13 The term “as such” has great significance as it shows that the crime of genocide

requires intent to destroy a collection of people because of their particular group identity based

11
Nahimana et al. Appeal Judgement, para. 677.
12
Para 2 & 3, Page 11, Moot Problem
13
ICJ Bosnia Judgement, para. 187

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on nationality, race, ethnicity, or religion.14 It is humbly submitted that Mr. Z. Karmonic only

wants the followers of Rokum religion to be taught a lesson i.e. to be killed.

(¶10.)It is well established that where a conviction for genocide relies on the intent to destroy

a group “in part”, such part must be a substantial part of the whole protected group 15.The

targeted portion must be a “significant enough [portion] to have an impact on the group as a

whole”.16It is humbly submitted that around 600 followers of Rokum religion were killed in

Sohulwa in one night on the call of Mr. Z. Karmonic. Therefore, the killing of 600 people was

significant enough to have impact on the whole Rokum community around Sarozula as a

whole.

(C.) Killed is also construed to mean, “Caused the death of”

(¶11.) The requirements for “killing” referred to under elements of crime Article 6(a) are

equivalent to those for murder. Murder as an act of genocide requires proof of a result.17 The

actus reus of murder is an act or omission resulting in the death of an individual.18 With regard

to the requisite causal nexus, the requirement that death must have occurred “as a result of”

the perpetrator’s act or omission does not require this to be the sole cause for the victim’s

death; it is sufficient that the “perpetrator’s conduct contributed substantially to the death of

the person”.19

(¶12.)It is humbly submitted that that Mr. Z. Karmonic’s act / conduct of sharing Facebook

post with the call to kill the followers of Rokums religion contributed substantially to killing

of about 600 Rokums minorities on the night of 25th May 2018 and conduct of Mr. Z.

Karmonic was such that it could itself effect such destruction.

14
Stakić Appeal Judgement, para. 20;
15
Krstić Appeal Judgement, paras. 8, 12
16
Krstić Appeal Judgement, para. 8.
17
Brđanin Trial Judgement, para. 688; Stakić Trial Judgement, para. 514.
18
Kvočka et al. Appeal Judgement, para. 261.
19
Orić Trial Judgement, para. 347

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II. Mr. Z. Karmonic is guilty of War Crime under Art. 8 (2) (b) (ii) for intentionally

directing attack against nuclear energy plants of Rokumba.

(A.) That Mr. Z. Karmonic directed an attack.

(¶13.)It is humbly submitted that the Cyber experts of the Rokumban armed forces hacked the

website of the Sohulwan armed forces, completely disrupting e-mail communication. which

significantly disrupted the military capabilities of the Sohulwan army. To counter and respond

to the cyber-attacks of Rokumban armed forces, on 5th June 2018, the government of Sohulwa

granted a pardon to Mr. Z. Karmonic and made him the head of the cyber cell of the Sohulwa’s

armed forces because he held a degree in computer engineering from the world’s most reputed

institution. He was tasked to properly answer the cyber actions of Rokumba.20

(¶14.)The fact that Mr. Karmonic was made head of cyber cell of Sohulwa’s armed forces

signifies that he held an official high rank post in army of Sohulwa and by virtue of it, he had

access and full control over super computer system, equipment’s, machineries, technological

devices and the other members of cyber cell of Sohulwa’s armed forces. The statement “….to

properly answer ….” signifies that he was entrusted with the responsibility to defend

Rokumban cyber-attack and to respond to Rokumba with the counter cyber-attack.

(¶15.)On 15 July 2018, there were sudden blasts in both nuclear energy plants of Rokumba.

These blasts resulted in radioactive leaks and caused great sufferings.

(¶16.)It is humbly submitted that the first technical committee of experts constituted by UN

Security Council found that the blasts were the result of a cyber-manipulation, in the nuclear

plants’ software, that originated from Sohulwa’s territory. On 5 April 2019, cyber expert’s

from the aforesaid committee, with the help of Sohulwan security forces found a set of ten

super computers, which were connected with each other, in an underground room in a village

20
Para 4 & 5, Page 11 Moot Problem

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near Sohulwa’s capital. The Committee alleged that these were the computers through which

software programmes aimed to target the nuclear power plants of Rokumba were developed.

(¶17.)It is humbly submitted that the aforesaid cyber-attack was directed by Mr. Z. Karmonic

which can be proved by connecting the following chain of circumstantial evidence.

a. The super computers are not the normal computers which can be found anywhere, they are

rare, expensive, huge and work on highly advance technology. These computer are

generally under control of Government. Therefore, being the head of cyber wing and

entrusted with responsibility to respond to Rokumban cyber-attacks Mr. Z. Karmonic was

the only person who had access and control over those 10 super-computers.

b. Mr. Z. Karmonic was the only person in Sohulwa who possessed the explicit knowledge

of computers and software.

c. That the cyber-manipulation in the nuclear power plants of Rokumba originated from the

territory of Sohulwa. The level of technology, technical equipment’s, operating system,

network connectivity and technical support which were required to conduct a cyber-

manipulation of such a higher level was under direct control of Mr. Z. Karmonic by virtue

of being the head of cyber cell.

d. The cyber experts committee alleged that the recovered super computers were used to

develop the software programmes which were aimed to target the nuclear power plants of

Rokumba. Although there was no direct evidence that those particular super computers

were used to develop the required software programmes but it can be inferred that since

there was no other resource / technical system in Sohulwa other than those recovered super

computers which can be used to develop such a high level software, the aforesaid software

was developed through those super computers by Mr. Z. Karmonic.

Thus, it is humbly submitted that Mr. Z. Karmonic directed an attack.

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(B.) That blast in nuclear energy plants and subsequent radioactive leakage was result of

cyber-manipulation through cyber-attack.

(¶18.)It is humbly submitted that any type of attack on a nuclear plant is very concerning. An

attack that allows hackers to manipulate the systems that control a nuclear reactor, while very

difficult, could have very serious consequences, including potentially nuclear reactor core

damage and off-site release of radiation. This is not the first time that nuclear facilities have

been attacked. The most well-known example is the Stuxnet attack on Iran’s uranium

enrichment facility, generally attributed to the U.S. and Israel. Recently, a new piece of

dangerous malware, TRISIS, which specifically targets the industrial controllers used for

safety critical applications, including in nuclear plants, has been found in the Middle East.21

(¶19.)The list of previous incidences of intentional cyber-attacks on nuclear power plants are

as follows –

1. January 1990, Bruce Nuclear Generating Station, Canada - Software error leading to

release of radioactive water

2. June 2010, Natanz Nuclear Facility, Iran - Stuxnet virus used to destroy centrifuges

(Intentional)

3. In 2015, hackers had struck an unnamed steel mill in Germany. They did so by

manipulating and disrupting control systems to such a degree that a blast furnace could

not be properly shut down, resulting in "massive"—though unspecified—damage.22

(¶20.)It is humbly submitted that in a nuclear power plants there are certain radioactive

chemicals like uranium, thorium etc. which are required to kept in a proper chamber at certain

temperature level. The atmosphere and temperature of such a chamber is digitally controlled.

The process of production of electricity through nuclear reactor is also digitally controlled.

21
Nuclear Threat Initiative, Cyber-attacks on Nuclear Power Plants: How Worried Should We Be?
22
https://www.wired.com/2015/01/german-steel-mill-hack-destruction/

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 19th Henry Dunant Memorial Moot Court Competition 2019

Thus, digitally controlled systems of nuclear power plants are the proper subject of cyber-

manipulation through cyber-attack.

(¶21.) It is humbly submitted that cyber-attack by Mr. Z. Karmonic manipulated and

disrupted the control systems of nuclear energy plants to such a degree that a sudden blast

occurred in it resulting in radioactive leakage and great sufferings thereafter.

(C.) That the object of the attack was civilian objects, that is, objects which are not military

objectives.

(¶22.) Article 56 of the 1977 Additional Protocol I23 and Article 15 of the 1977 Additional

Protocol II24 provides: Works and installations nuclear electrical generating stations, shall

not be made the object of attack, even where these objects are military objectives, if such

attack may cause the release of dangerous forces and consequent severe losses among the

civilian population. According to Article 85(3)(c) of the 1977 Additional Protocol I25,

“launching an attack against works or installations containing dangerous forces in the

knowledge that such attack will cause excessive loss of life, injury to civilians or damage to

civilian objects” is a grave breach of the Protocol.

(¶23.)It is humbly submitted that in January 2015 Rokumba conducted a nuclear test, and

claimed that it will use nuclear technology for peaceful purposes. Subsequently, it established

two nuclear thermal power plants by January 2018 in which the heat source was a nuclear

reactor, heat was used to generate steam that drives steam turbine connected to a generator

that produces electricity. They were only used for the purpose of generation of electricity and

thermal power, which was utilized for peaceful and non-combat purposes only.

(¶24.)On 15th July 2018, there were sudden blast in both nuclear power plants and

consequential radioactive leakage as a result of cyber-manipulation through cyber-attack

23
CDDH, Official Records, Vol VI, CDDH/SR 42, 25 May 1977, p. 209.
24
CDDH, Official Records, Vol VI, CDDH/SR 52, 6 June 1977, p. 138.
25
CDDH, Official Records, Vol VI, CDDH/SR 44, 30 May 1977, p. 291.

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 19th Henry Dunant Memorial Moot Court Competition 2019

directed by Mr. Z. Karmonic.

(¶25.)Article 52.1 of AP I contains a negative definition of civilian objects “which are not

military objectives.”26 Military objectives27 are defined, under Article 52.2 of AP I, as “those

objects which by their nature, location, purpose or use make an effective contribution to

military action and whose total or partial destruction, capture or neutralization, in the

circumstances ruling at the time offers, a definite military advantage.”28 This definition is

considered customary IHL and is applicable to international armed conflicts29

(¶26.)The subjective prong is to assess whether the destruction, capture, or neutralization of

the object in the circumstances at the time offered “a definite military advantage.30

Nevertheless, military advantage needs to be linked to a definite event and not to a broad

concept such as winning the entire armed conflict.31

(¶27.)It is humbly submitted that both the nuclear power plants of Rokubma by their nature,

location, purpose or use never made an effective direct or indirect contribution to any kind of

military action and their destruction or neutralization at the time never offered a definite

military advantage to Sohulwa. The allegation that aforesaid nuclear power plants may be

potentially used in future for a military advantage is a broad concept and not linked to any

definite event, hence, would not be covered within the meaning of ‘definite military

advantage’

(D.) That Mr. Z. Karmonic intended nuclear energy plants i.e. a civilian object to be the

object of attack.

(¶28.)Mr. Z. Karmonic was entrusted with the duty to prevent the systems of Sohulwan armed

26
AP I, supra note 9, art. 52(1).
27
SASSÒLI & BOUVIER, supra note 1, 202 n.151
28
AP I, supra note 9, art. 52(2).
29
ICRC, supra note 10, r.8
30
Prosecutor v. Galić, Case No. IT-98-29-T, Judgement and Opinion, ¶ 51 (Int’l Crim. Trib. for the Former
Yugoslavia Dec. 5, 2003).
31
YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL
ARMED CONFLICT 86, 87 (2004).

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 19th Henry Dunant Memorial Moot Court Competition 2019

forces from Rokumban cyber-attack and to respond to Rokumba with the counter cyber-attack.

It is humbly submitted that the software developed to cyber-manipulate the nuclear power

plants of Rokumba required to be very specific, in terms details and digital framework of a

particular nuclear energy plant. A general software cannot be used for this type of cyber-attack.

This fact prove that Mr. Z. Karmonic built a specific software with intention to direct cyber-

attack against nuclear establishments and cause a blast thereto.

(¶29.)It is humbly submitted that mental element under Art. 30 of Rome Statute is fulfilled as

Mr. Z. Karmonic was engaged in conduct of development of software, intended to cause the

desired consequence i.e. cyber-manipulation of nuclear energy plants and was aware that blast

and radioactive leakage will occur in ordinary course of event as result of cyber-attack. He is

also individually liable for commission of war crime under Art. 8 (2) (ii) under Art. 25 (2), (3)

of Rome Statute.

(E.) That the conduct took place in the context of and was associated with an international

armed conflict.

(¶30.)In the words of the Appeals Chamber in the Tadić Appeals Judgment32, “It is indisputable

that an armed conflict is international if it takes place between two or more States.” In the case

of Prosecutor v. Naletilić and Martinović33 Appeals Chamber précised: " They were not found

responsible for the fact that the conflict was international, but rather for the crimes committed

in the context of the international armed conflict."

(¶31.) The following facts establishes that Cyber-attack by Mr. Z. Karmonic took place in

context of and was associated with an International armed conflict –

a. That Sohulwa and Rokumba achieved independence in 1955 and were sovereign states.

b. On 22 April 2018, Rokumba launched missile attacks on five SoS offices situated in Sohulwa.

32
ICTY, Tadić Appeal judgment, 15 July 1999, para. 84.
33
ICTY, Prosecutor v. Naletilić and Martinović ("Tuta and Štela"), "Appeals Judgement", IT-98-34-A.

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 19th Henry Dunant Memorial Moot Court Competition 2019

c. An armed conflict exists whenever there is a resort to armed force between States or protracted

armed violence between governmental authorities and organized armed groups or between such

groups within a State.34 "Any difference arising between two States and leading to the

intervention of members of the armed forces is an armed conflict.35

On 25th April 2018, there was firing and mortar attacks from the Rokumba’s armed forces on

Help Sarozula Protesters. This resulted in further retaliation by armed forces of Sohulwa. The

armed forces of Sohulwa were successful in crossing borders of Rokumba in some pocket

areas. Twenty five soldiers of Sohulwa were captured by Rokumba’s armed forces. Fifteen

members of the Rokumba’s armed forces were also captured by Sohulwan armed forces.

d. On 30 May 2018, armed forces of Rokumba entered Sohulwan territory and started to march

towards the capital city. Cyber experts of the Rokumban armed forces hacked the website of

the Sohulwan armed forces, completely disrupting e-mail communication. These cyber-attacks

significantly disrupted the military capabilities of the Sohulwan army.

In order to respond the cyber-attack of Rokumban armed forces, Mr. Z. Karmonic directed

cyber-attack against nuclear energy plants of Rokumba.

(F.) That Mr. Z. Karmonic was aware of factual circumstances that established existence of

an armed conflict.

(¶32.)It is humbly submitted that since the cause of armed conflict between armed forces of

Sohulwa and Rokumba was the protest by members of Help Sarozula group on Rokumbian

border, hence, Mr. Z. Karmonic being head of that group and head of cyber cell of armed

forces of Sohulwa was completely aware of factual circumstances that established existence

of an armed conflict.

Thus, Mr. Z. Karmonic is guilty under Art. 8 (2) (b) (ii) of Rome Statute.

34
ICTY, Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995,
para. 70.
35
ICC, Lubanga Decision on the confirmation of charges, 29 January 2007, para. 207.

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 19th Henry Dunant Memorial Moot Court Competition 2019

III. Mr. Z. Karmonic is guilty under Art. 8 (2) (b) (iv) for War Crime of Excessive, Incidental

Death, Injury or Damage.

A. Mr. Z. Karmonic launched an attack.36

B. That the conduct took place in the context of and was associated with an international

armed conflict.37

C. That Mr. Z. Karmonic was aware of factual circumstances that established existence of

an armed conflict.38

D. The Attack did not have concrete and direct overall military advantage and caused

widespread, long term and severe damage to environment.

(¶33.)The expression ‘concrete and direct overall military advantage’ has been clearly

explained in Elements of Crime.39 There should be a foreseeable military advantage at the

time of cyber-attack by Mr. Z. Karmonic. There should be a proportional advantage to attack

in order to gain military advantage. But in this case attack on nuclear energy plants is not a

military objective.

It should also be noted that the expression “concrete and direct” means the advantage

concerned should be substantial and relatively close, and the advantages which are hardly

perceptible and those which would only appear in the long term should be disregarded.40

(¶34.)It is humbly submitted that both the nuclear power plants of Rokubma by their nature,

location, purpose or use never made an effective direct or indirect contribution to any kind of

military action and their destruction or neutralization at the time never offered a concrete and

direct overall military advantage to armed forces of Sohulwa. The allegation that aforesaid

nuclear power plants may be potentially used in future for a military advantage is a broad

36
Part A of Issue II.
37
Part E of Issue II.
38
Part F of Issue II.
39
Footnote 36, Elements of Crime.
40
Ibid., ‘Art. 57’, no. 2209.

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 19th Henry Dunant Memorial Moot Court Competition 2019

concept and not linked to any definite event, hence, would not be covered within the meaning

of ‘concrete and direct overall military advantage’

(¶35.)It is humbly submitted that blast in the nuclear energy plants caused caused severe

damage to the natural environment that were patently look hard to be compensated in a decade

or so.These blasts also caused leakage of many chemicals from surrounding industries. Many

small rivers of Rokunga got extremely polluted and full with the dead bodies of many aquatic

creatures.41

(¶36.)It is humbly submitted that on 8 April 2019, the second committee constituted by UN

Security Council issued its first report wherein it found that the chemicals leaked by the blast

have caused serious existential threat in the surrounding areas and primarily responsible for

death of aquatic creatures. It stated that probably it would not be possible to restore the

affected environment back to its pristine glory in next two decades.

(¶37.)It is humbly submitted that mental element under Art. 30 of Rome Statute is fulfilled as

Mr. Z. Karmonic had knowledge that his cyber-attack would cause radioactive leakage which

in ordinary course of events would cause incidental death or injury to civilians or damage to

civilian objects or widespread, long-term and severe damage to the natural environment and

that such death, injury or damage would be of such an extent as to be clearly excessive in

relation to the concrete and direct overall military advantage anticipated.

Thus, it is humbly submitted that Mr. Z. Karmonic is guilty under Art. 8 (2) (b) (iv) for

War Crime of Excessive, Incidental Death, Injury or Damage.

41
Para 1, page 12, Moot Proposition.

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 19th Henry Dunant Memorial Moot Court Competition 2019

PRAYER

Wherefore in light of the questions presented, arguments advanced and authorities cited, the

Prosecution respectfully requests this Court to adjudge and declare that:

I. Mr. Z. Karmonic be found guilty of Crime of Genocide under Article 6 (a) and be

sentenced according to Art. 76 and penalty imposed as per Art. 77 of the Rome

Statute.

II. Mr. Z. Karmonic be found guilty of war crimes under Article 8(2) (b) (ii) and be

sentenced according to Art. 76 and penalty imposed as per Art. 77 of the Rome

Statute.

III. Mr. Z. Karmonic be found guilty of war crimes under Article 8(2) (b) (iv) and be

sentenced according to Art. 76 and penalty imposed as per Art. 77 of the Rome

Statute.

According to what is just and good, it is an appeal of the counsel to the Hon’ble Court to

adjudge the above prayers, or grant any other relief which this Hon’ble Court may be pleased

to grant and is deemed fit in the interest of Justice, Equity and Good Conscience,

Counsels for Prosecution

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