1. Required Elements of Crime under Article 8 (2) (b) (iv) are not satisfied.

 Element 2 is not satisfied. The successful intercept of the Temerian Armed Forces
(TAF) in the RLF’s supply chain to the city from the north 1 did not cause
excessive incidental death, injury, or damage to the civilians in Velen City or to
civilian objects of such an extent as to be clearly excessive in relation to the
concrete and direct overall military advantage anticipated.
The expression “concrete and direct overall military advantage” refers to a
military advantage that is foreseeable by the perpetrator at the relevant time. xxxx
It reflects the proportionality requirement inherent in determining the legality of
any military activity undertaken in the context of an armed conflict.2
International humanitarian law only prohibits … attacks … against a military
objective if at the time of the order to attack the anticipated civilian damage is out
of proportion3 to the anticipated concrete and direct military advantage.4
Collateral damage such as the death of civilians is not out of proportion merely
because the military advantage is only a short-term advantage which does not
decide the conflict. Thus, the bombarding of a broadcasting centre by NATO in
Belgrade with the foreseeable result of numerous civilian deaths was not
considered to be out of proportion, even though the anticipated tactical advantage
only lay in the interruption of the adversary’s telecommunication for a few hours
(Final Report to the Prosecutor by the Committee established to review the NATO
Bombing Campaign against the Federal Republic of Yugoslavia, marginal no.
78).
In this case, the intercept of the TAF to the RLF supplies from the north in
October 2013 is necessary to cut off the means of fighting of the RLF which is the
short-term military advantage sought by Colonel Rivia. The direct possible
attributable result of such intercept is the termination of the passage of supplies
from the north and showed no contribution to any cutting of supplies to the Velen
City for the civilian from other sources. It is indeed the barricaded of RLF in most
of the gates along the walls, cutting off all but two entrances to the city, is more
contributing to the cutting off of supplies5.

1
Facts, para.19
2
Elements of Crimes (EOC), footnote 36; API, Art. 51 (2).
3
“excessive” see Art. 51 para. 5 sub-para. b AP I [the 1977 Additional Protocol I]
4
ICRC Customary International Humanitarian Law, 2005 – hereafter ICRC Customary IHL [Study] – p. 46ff
5
Facts. Para.18
 Indeed the subsequent actions of TAF in supervising the evacuation of
approximately 30,000 residents of Velen City 6 which helped in limiting the
victims of starvation.
The particular structure of proportionality as a normative technique applicable in
jus in bello, in which no interest can claim absolute priority over the others,
explains why proportionality cannot logically be measured by reference to the
ultimate goals of a military mission, but instead to the more immediate aims of
each single military action.7

6
Facts, para.20
7
Enzo Cannizzar. Contextualizing proportionality: jus ad bellum and jus in bello in the Lebanese war. Volume 88
Number 864 December 2006. p.786