The case is inadmissible before the ICC for failure to establish that the national

criminal system of Temeria is incompetent.

Basic in the rule of complementarity is that the ICC is intended to complement, not to
replace, national criminal systems; it prosecutes cases only when States do not are unwilling
or unable to do so genuinely.1

The facts2 of the case stated that Colonel Rivia was delivered into the custody of the
international Criminal Court on July 15, 2016. It cannot be inferred that either of the State
parties exercised their national jurisdiction in prosecuting the defendant before referring the
situation to the ICC.

Before a case can be considered by the ICC, the inadmissibility thereof should first be
determined pursuant to Article 17 of the Rome Statute. Paragraph 1 (a) of Article 17 states:

1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall
determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over
it, unless the State is unwilling or unable genuinely to carry out the investigation or
prosecution;

XXX

Furthermore, Paragraph 3 of Article 17 states:

3. In order to determine inability in a particular case, the Court shall consider

whether, due to a total or substantial collapse or unavailability of its national judicial
system, the State is unable to obtain the accused or the necessary evidence and
testimony or otherwise unable to carry out its proceedings.

In addition, the third among the necessary steps in the recognition of universal
jurisdiction by the state for it to be an operative legal term require national means of
enforcement allowing the national judiciary to exercise their jurisdiction over these crimes
Furthermore, the Functional principle aimed at granting jurisdiction to a subsidiary body
when the main body fails to exercise its jurisdiction requires the existence of both national
and international criminal justice systems functioning in a subsidiary manner for curbing
1
https://www.icc-cpi.int/about/how-the-court-works

2
Statement of Facts, paragraph 38
crimes of international law so that when the former fails to do so, the latter intervenes to
ensure that the perpetrators do not go unpunished3..

In all these instances, it cannot be concluded that the State of Temeria is unwilling nor
unable to genuinely carry out the investigation or prosecution, it can neither be established
that the national judicial system of Temeria have collapsed totally or substantially, or was
unavailable to carry out its proceedings. The state need not to obtain the accused with
difficulty as it was stated2 that Colonel Rivia was delivered into the custody of the
international Criminal Court on July 15, 2016.

The ICC cannot substitute the national judicial system of Temeria in the absence of
showing that the latter court is unwilling or unable to prosecute the defendant.

Defense common to the three charges: The conduct DID NOT take place in the context
of and NOR was associated with an international armed conflict.
3
(The Principles of Universal Jurisdiction and Complementarity: How do the Two Principles Intermesh? By
Xavier Philippe)
There was no existence of an international armed conflict.

1. The nature of an international armed conflict as expressed in the words of the Appeals
Chamber in the Tadić Appeals Judgment,

"xxx an armed conflict is international if it takes place between two or more States.”4

In the case at hand, the armed forces in conflict are the Temerian Armed Forces (TAF)
and Temerian Police Force (TPF) on one hand, and the Rennish Liberation Front
(RLF) on the other hand. The TAF and TPF belong to the Republic of Temeria
(Temeria), one of the two states created when Redania withdrew its colonial power
from the Greater Temeria.5 The RLF, on the other hand, is a movement with
proponents across the former Greater Temeria, who were highly active in the struggle
for independence prior to 1981.6 The RLF neither belongs to the Republic of Temeria
or the Republic of Lyria. Hence, since the armed conflict did not take place between
two or more States, it is not of an international character. Rather, it is an internal
armed conflict.

2. The Appeals Chamber in the Tadić Appeals Judgment also established that an internal
armed conflict may become international if,

“xxx (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
State.”7

a. The circumstances surrounding the case do not suggest that another State
intervened in the conflict.

The conflict between Temeria and RLF started when a young man wearing the
symbols of RLF (white stars on a blue background) killed and injured 52
4
ICTY, Tadić Appeal judgment, 15 July 1999, para. 84.
5
Statement of Agreed Facts No. 1
6
Statement of Agreed Facts No. 4
7
ICTY, Tadić Appeal judgment, 15 July 1999, para. 84.
 people in Novigrad (capital of Temeria) during the celebration of the Temerian
Independence Day.8 Later on, the RLF claimed responsibility for the attacks
against TAF and TPF, which freed a portion of Temeria from the control of the
Temerian government called the “liberated zone”.9 Although Lyria had
tensions with Temeria especially with regards to the original partition
agreement10, it did not show, nonetheless, that Lyria had control over the
attacks against Temeria.

Various instances indicate that Lyria might have participation in the conflict
making it international in character as follows:

 An alleged agent of the Lyrian intelligence service was arrested by

Temerian police in November 2011, after he was apprehended driving
a truck loaded full of “Freedom Fighters” and other publications, as
well as a trunk of small arms and ammunition.11 - This is merely an
allegation which must be proven by sufficient evidence that the person
arrested is indeed an agent of the Lyrian intelligence service who acted
pursuant to an order of his superior.

 Reuters and the Temerian Times reported that the shell casings
identified the weapons systems used as the same system used by the
armed forces of a number of States in the region, including the Lyrian
Defence Force (LDF).12 – This did not prove that Lyria through the
LDF supplied the RLF with weapons and firearms. Moreover, Temeria
failed to trace the source of firearms since serial numbers on all seized
firearms were erased.13

 Footage of the apprehended Lyrian intelligence agent, in which the

man was seen in prison uniform, claiming that Lyrian MP Red Geralt
was a member of the leadership of the RLF and was also using the
8
Statement of Agreed Facts No. 7
9
Statement of Agreed Facts No. 12
10
Statement of Agreed Facts No. 5
11
Statement of Agreed Facts No. 9
12
Statement of Agreed Facts No. 11
13
Statement of Agreed Facts No. 14
 Central Bank of Lyria to fund the RLF.14 – Since Red Geralt is a
member of the Lyrian parliament15, he may have access to the coffers
of Lyria but this does not indicate that Geralt acted for and in behalf of
the Lyrian government. He may have acted beyond his scope of
authority to aid the RLF.

 Al Jazeera and Reuters ran articles with accounts of RLF training

camps conducted by the LDF in the Skellig mountains. The Temerian
Times reported that members of the LDF were embedded as advisers in
the RLF.16 – The individuals who conducted the trainings are not
current members of the LDF during the period of the armed conflict
but may have been members previously before they joined the RLF
based on the statement issued by Lyria, identifying a mortal remain of
a person who was de-commissioned from the LDF.17

However, the above citing do not sufficiently prove that Lyria had indirect
participation in the conflict. In the Katanga Trial Judgement, the Trial
Chamber held that: "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 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."

14
Statement of Agreed Facts No. 13
15
Statement of Agreed Facts No. 4
16
Statement of Agreed Facts No. 16
17
id
 The aforesaid facts do not establish that Lyria had control over the acts of
RLF, hence, Lyria do not have indirect participation over the conflict to regard
it as having an international character.

b. The circumstances surrounding the case do not suggest that some participants
in the internal armed conflict acted on behalf of another State.

The RLF could not have acted on behalf of Lyria since there is no sufficient
evidence to prove that the actions of RLF are authorized by the Lyrian
government. Lyria even strongly denied any link with the RLF and further
claimed it was not aware of any RLF operations on its territory.18

Count One

Colonel Rivia is DID NOT order the war crime of excessive incidental death, injury,
or damage.

18
Statement of Agreed Facts No. 14
 Against Element No. 1 – The perpetrator did not launch an attack.

There is no attack to speak of. Paragraph 19 of the facts do not expressly state that the
means of interception used by TAF to intercept the RLF’s supply chain was obtained through
force or violence through an attack.

Against Element No. 2 and 3 –Even assuming arguendo that an attack has been
launched, the attack did NOT 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.
The successful intercept of the Temerian Armed Forces (TAF) in the RLF’s supply
chain to the city from the north19 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.20

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
proportion21 to the anticipated concrete and direct military advantage.22

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).

19
Facts, para.19
20
Elements of Crimes (EOC), footnote 36; API, Art. 51 (2).
21
“excessive” see Art. 51 para. 5 sub-para. b AP I [the 1977 Additional Protocol I]
22
ICRC Customary International Humanitarian Law, 2005 – hereafter ICRC Customary IHL [Study] – p. 46ff
 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 rather the
barricade of RLF in most of the gates along the walls, cutting off all but two entrances
to the city23, which has greatly contributed to the cutting off of supplies of the city of
Velen. The subsequent actions of TAF in supervising the evacuation of approximately 30,000
residents of Velen City24 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.25

Count Two

23
Facts. Para.18
24
Facts, para.20
25
Enzo Cannizzar. Contextualizing proportionality: jus ad bellum and jus in bello in the Lebanese war. Volume
88 Number 864 December 2006. p.786
 Colonel Rivia DID NOT order the commission of war crime of intentionally
directing attacks against personnel, installations, material, units or vehicles involved in
a humanitarian assistance or peacekeeping mission.

Against Element No. 1 – The perpetrator did not launch an attack.

Colonel Rivia did not direct an attack against personnel, installations, material, units or
vehicles involved in a humanitarian assistance or peacekeeping mission. When the TAF
received intelligence on 4 February, that Red Geralt may have crossed the border from Lyria
into Temeria26, Colonel Rivia issued an order to all TAF Units in and around Velen to “fire at
will” if they had eyes on Red Geralt. There was no such order that was directed against the
International Committee of the Red Cross (ICRC). As a matter of fact, Colonel Rivia was
closely monitoring the status of the ICRC convoy as they entered the city of Velen. Further,
when Lieutenant Metz of Unit 52 reported the approach of unidentified vehicles, Colonel
Rivia’s concerns on the ICRC was manifested by his questions directed to Lieutenant Metz
which was to confirm the number of vehicles, whether or not there was a cross on said
vehicles and if he could confirm that it was the RLF. Clearly, Colonel Rivia did not direct an
attack against the ICRC convoy.

Against Element No. 3 – The perpetrator did not launch an attack intend such
personnel, installations, material, units or vehicles so involved to be the object of the
attack.

Colonel Xander Rivia did not intend such personnel, installations, material, units or
vehicles so involved to be the object of the attack. The specific orders that Colonel Rivia
gave to his team was only as regards Red Geralt. No such order was given towards the ICRC
convoy. When Unit 52 attacked the ICRC convoy, it was under the mistaken belief that the
convoy was the RLF. Unit 52 was on high alert already for further attacks prior to the ICRC
convoy incident because of the ram-raiding incident of a small truck caused by armed RLF
members were seen in the vehicle in one of their checkpoints in the Southern Quarter. So
that when Lieutenant Metz saw that the front vehicles were camouflaged with mud 27 and
there were only 6 vehicles as opposed to the 8 vehicles that they were expecting, Unit 52

26
Paragraph 28, Statement of Facts
27
Paragraph 34, Statement of Facts
fired on the convoy, unintentionally wounding the eight humanitarian personnel due to the
mistaken belief that it was of the RLF’s.

Against Element No. 6 and 7 – See defense common to three charges

Count Three

Colonel Rivia DID NOT order the commission of war crime of declaring no quarter

Against Element No. 3 – Colonel Xander Rivia DID NOT declare that no quarter shall
be given.

Defense No. 2 – Directive 66 is NOT a declaration to deny quarter.

There are two ways in which the perpetrator can commit the war crime under Article 8(2)
(b)(xii) of the Rome Statute. That is, by (1) declaring or by (2) ordering that no quarter shall
be given. Colonel Xander Rivia was charged with declaring that no quarter will be given
through Directive 66. A perusal of Directive 66 show that it is an order to “take all necessary
measures to cut off the RLF’s means of fighting”28. The phrase “means of fighting” pertains
to the supply of weapons, firearms, communication devices, and any other objects to be used
by the RLF in war. For a statement to be considered a declaration to deny quarter the
existence of any of following required must be established:

1. Evidence of a declaration that there shall be no survivors supported by the following:

a. Evidence of a public threat that quarter shall be refused.

Directive 66 was not intended to be a public threat since it is in the nature of

an order addressed to the TAF Units and not to its adversary through a public
declaration. To be considered a public threat, the statement must be declared
openly stating that there will be ruthless warfare29, that the perpetrator
intended to conduct the warfare in a ruthless manner, and that quarter shall be
refused, typically with a view to provoke immediate surrender or to terrorize
the adversary.30

b. Evidence of a declaration instructing to leave no survivors.

28
Statement of Agreed Facts No. 20
29
Protocol I, Art. 40
30
Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), artricle 8, para. 137
 Directive 66 is not an order to kill all survivors, rather, it is an order to cut the
means of fighting of the RLF.

c. Evidence of a declaration instructing to use military weapons which will leave

no survivors.

Colonel Xander Rivia did not instruct the TAF Units to use their weapons in
such a way that no person can survive. Directive 66 merely ordered to take the
necessary measures to cut the means of fighting and not to kill all members of
the RLF. The TAF even gave the RLF an opportunity to surrender by dropping
leaflets in the City of Velen containing a statement “RLF: surrender now or be
prepared to fight to the bitter end”31.

2. Evidence of a declaration instructing to keep no prisoners supported by the following:

a. Evidence of a declaration instructing troops to take no prisoners.

Although Directive 66 acknowledged that “the RLF are barbarians, they take
no prisoners”32, it did not instruct the TAF Units to do the same to RLF
prisoners. Directive 66 is silent on the actions to be taken to the apprehended
RLF members.

b. Evidence of a declaration instructing troops to kill prisoners including

evidence of a speech inciting troops to take reprisals on prisoners.

Directive 66 is silent on the actions to be taken to the apprehended RLF

members.

3. Evidence of a declaration that surrenders be killed or left to a foreseeable death

supported by the following:
a. Evidence of a declaration instructing troops to kill surrenders.

31
Statement of Agreed Facts No. 20
32
id
 On October 16, the TAF dropped leaflets in the City of Velen containing a
message to the fighters urging them to surrender. This step was taken in
pursuance of Directive 66 issued the day before. However, the same directive
did not instruct the TAF troops to kill those who surrender and the leaflets
were intended to give the RLF an option to surrender instead of going to war
with the TAF.

b. Evidence of a declaration instructing troops to refuse surrenders

The Netherlands East Indies Statute Book Decree No. 44 of 1946 provides,
“refusing "quarter" might be understood as referring to intending to cause
death by refusing to give the conquered enemy shelter and human treatment,
that is, not fulfilling the humanitarian obligations, for instance, to collect and
to protect wounded, sick or shipwrecked, and, to the extent possible, to
provide them with medical care."

Directive 66 was an order to cut off RLF’s means of fighting. It did not,
however, instructed the TAF troops to cut food, medical and other supplies not
considered as “means of fighting”.

c. Evidence of a declaration instructing troops that surrenders are to be left to a

foreseeable death including:
i. Evidence of a declaration to not retrieve wounded or shipwrecked
persons.

Directive 66 is silent on the matter.

ii. Evidence of a declaration to not provide appropriate medical aid to

surrenders.

Directive 66 is silent on the matter, although, Temeria agreed to grant

relief through the ICRC.
Jurisdiction

An international armed conflict exist whenever there is a resort to armed force

between two or more states33. This extends to the partial or total occupation of the territory of
another State, whether or not the said occupation meets the armed resistance. 34

To establish whether a situation has reached a threshold to establish “armed force”,

regard must be had to all surrounding circumstances.

Temeria did not commit acts against Lyria with belligerent intent to constitute an
international armed conflict. Belligerent intent may be identified when a situation objectively
shows that a State is effectively involved in military operations or hostile action against
another State. It can be recalled in paragraph 7 that a young man wearing the RLF colours
made an attack during the celebration of the Temerian Independence Day. Moreover,
Temeria even began to build a way to protect its territory and its people. In paragraph 11, the
TAF and Temerian police were attacked by the RLF. These facts and inferences clearly
negate the presence of belligerent intent of Temeria against Lyria.

It cannot be adduced from the facts that there is a military occupation by TAF. There is
military occupation where a State’s military exercises control over a territory beyond its
internationally recognized frontiers.

33
Prosecutor vs Tadic
34
Prosecutor vs Lubanga