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15th Red Cross

INTERNATIONAL HUMANITARIAN LAW MOOT COURT COMPETITION

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PROSECUTOR

V.

MAJOR LYDIA RODARTE-QUAYLE

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MEMORIAL FOR THE DEFENCE

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TEAM NUMBER: CNIHL 2134

Word Count: 3997

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I. STANDARD OF PROOF

1. The standard of proof at this stage should be “sufficient evidence to establish

substantial grounds to believe”.1 The prosecutor must offer concrete and tangible
proof demonstrating a clear line of reasoning underpinning specific allegations.2

II. NATURE OF ARMED CONFLICT

A. THERE WAS A NON-INTERNATIONAL ARMED CONFLICT (“NIAC”)

BETWEN ALPHAN FORCES AND BRAVO.

(a) The requirement of a NIAC was fulfilled.

2. In Lubanga,3 the ICC confirmed two requirements of NIAC: “organization” of the

party and “protraction” of the conflict.

1. The organization requirement was satisfied.

3. The “organization” is determined by factors such as issuance of political statements,

military equipment availability, the group’s ability to plan military operations and
the level of military involvement. 4 In this case, both forces had the capacity to
purchase military hardware, draw military plans and deploy mines 5 . Thus, both
parties fulfilled the organization requirement.

2. The armed conflict was “protracted”.

4. A series of confrontations,6 to be specific, "length of the conflict", "existence of

casualties", "nature of weapons used" and "increase in the number of armed forces"

1
ICC Statute, Art. 61(7).
2
Prosecutor v. Lubanga (2007), ICC-01/04-01/06, Decision on the Confirmation of
Charges (“Lubanga Confirmation”), ¶¶37-39.
3
Id, ¶¶533-534.
4
Prosecutor v. Limaj (2005), ICTY-03-66-T, Trial Judgment (“Limaj Judgement”),
¶90; Prosecutor v. Haradinaj (2008), ICTY-04-84-T, Trial Judgement, ¶60.
5
Problem, ¶¶6-18.
6
Limaj Judgement, ¶84.
Page 3 of 19 (D21)
 demonstrate intensity.7 Herein, the confrontation between the two parties existed
from 2026 to 2028,8 which involved deployment of mines and resulted casualties
subsequently, with detained Alphan civilians assisted Bravan forces. 9 Thus, the
requirement of NIAC was fulfilled.

(b) The armed conflict was not internationalized.

5. There are only three types of IAC, however, the conflict in the present case falls
into none of them.

1. The conflict did not occur between two or more sovereign states.10

6. The State should possess the following qualifications: a permanent population, a

defined territory, government and capacity to enter into relations with other states.11
However, after 1 August 2026, most Alphan population and large parts of Alphan
territory were under control of Bravo forces.12 Meanwhile, the Fring regime was
protested by most population and several Alphan Generals even launched a coup
against it,13 indicating that the Fring government has lost control over its territory
as well as population.

2. There existed no intervention from a third State.14

7. When it comes to the internationalization by intervention, 15 the military group

needs to be under overall control of another State.16 Herein, no third party was
involved in this conflict.

7
Prosecutor v. Boškoski and Tarčulovski (2008), ICTY-04-82-T, Trial Judgement,
¶177.
8
Problem, ¶¶11, 22.
9
Id, ¶¶18, 26.
10
Geneva Conventions, Common Article 2.
11
Montevideo Convention on the Rights and Duties of States, Art. 1.
12
Problem, ¶11.
13
Id, ¶23.
14
Prosecutor v. Tadic (1999), ICTY-94-1-A, Appeal Decision (“Tadic Decision”), ¶84.
15
Tadic Decision, ¶72.
16
Id, ¶137.
Page 4 of 19 (D21)
 3. It was not a fight for the right to self-determination.17

8. The right to self-determination can only be exercised to struggle against colonial,

alien domination, foreign occupation and racist regime.18 However, in the present
case, neither the two parties reached the requirement.

9. In conclusion, there existed a NIAC in Alpha.

III. COUNT ONE TO THREE: RODARTE-QUAYLE IS NOT

INDIVIDUALLY RESPONSIBLE FOR THE WAR CRIME OF
COMPELLING A PRISON OF WAR OR OTHER PROTECTED
PERSON TO SERVE IN THE FORCES OF A HOSTILE POWER
UNDER ARTICLE 8(2)(a)(v).

A. Material Element.

(a) The perpetrator did not coerce one or more persons.

10. Coercion means compelling a person to do something by forms of duress which

prey on fear or desperation, 19 indicating non-consent. 20 And consent means
agreement given voluntarily by a competent person.21

11. In the first count, By 26 August, people, except those in East Alpha, 22 began
actively protesting Alphan Fring regime,23 indicating that the detained civilians in
North Alphalia opposed Fring regime. 24 Hence, they assisted to establish the
defensive arrangements willingly. Additionally, Rodarte promised extra rations as
a reward for help, therefore civilians assisted to establish the defensive

17
AP I, Art. 1.
18
Declaration on the granting of independence to colonial countries and peoples, The
United Nations General Assembly, 1960.
19
Prosecutor v. Akayesu (1998), ICTR-96-4-T, Judgement, ¶688.
20
Prosecutor v. Kunarac et al (2001), IT-96-23-T, Judgment, ¶¶457–458.
21
Black’s Law Dictionary (8th ed. 2004), p.921.
22
Id, ¶12.
23
Problem, ¶11.
24
Id, ¶11.
Page 5 of 19 (D21)
 arrangements voluntarily but not coercively.

12. In the second count, Robot was against the militaristic policies of the Alphan
government, 25 and the National War Memorial (“Memorial”) was a central to
Alphan Fring regime,26 thus he accepted Rodarte’s invitation to launch the cyber-
attack against the Memorial to express his opposition. Therefore, Robot attacked
the Memorial voluntarily rather than out of fear or desperation.

13. In the third count, massive influx of Alphan prisoners of war (“POW”)
overwhelming the capacity of the Bravans,27 which means that POW had absolute
advantage over the 3rd Battalion in numbers. Moreover, considering that the
detained 38th Alphan Military Police Regiment (“MPR”) was still a unit, they still
had military capabilities and could make the decisions independently. Therefore,
MPR served as prison camp guards voluntarily but not coercively.

14. Alternatively, even if Rodarte compelled MPR to serve as prison camp guards, the
crime is not constituted. This element should adopt a narrow explanation of
coercing, in which legal coercion is permitted, for example, compelling to do work
connected with camp administration, installation or maintenance in consistence
with POW’s own interest.28 Herein, the MPR were tasked with administration,
discipline and guarding within the camp,29 and this task could provide MPR with
rations and winter clothing first in line, which was in their interest, constituting
legal coercion.

15. Therefore, the coercion did not exsit.

(b) Such person or persons were not protected under one or more of the Geneva
Conventions of 1949(“GCs”).

25
Id, ¶21.
26
Id, ¶9.
27
Id, ¶24.
28
Prosecutor v. Mladen Naletilić and Vinko Martinović (2003), IT-98-34-T, Judgement,
¶256.
29
Problem, ¶24.
Page 6 of 19 (D21)
16. Initially, the conflict hereby was not an international armed conflict, GCs should
not be applied.30 Even though GCs are applied, such person or persons were not
protected.

17. In the first count, an exception to the rule of civilians’ protection is that, whereby
the inhabitants of a country which has not yet been occupied, on the approach of
the enemy, spontaneously take up arms to resist the invading troops without having
time to form themselves into an armed force.31 Herein, civilians were detained on
security grounds 32 because they had been considered dangerous to Bravan
security,33 which indicated that they might had resisted Bravan forces with arms
before. Therefore, these civilians were not protected under GCs.

18. In the second count, GCs defines protected persons as civilians who do not have
the nationality of the belligerent in whose hands that they find themselves. And the
nationality of the victims should be determined by an analysis of the substantial
relations, for example national allegiance, 34
but not formal national
characterizations. 35 Herein, although Mr. Robot was an Alphan citizen, he has
Bravan heritage and opposed the militaristic policies of the Alphan government,36
indicating that substantial relations existed between Robot and Rodarte and they
shared the same nationality in a substantial ground. Therefore, the detained
civilians were excluded from the protection under GCs.

B. Mental Element.

(c) The perpetrator was not aware of the factual circumstances that established that
protected status.

30
GC, Common Art. 2.
31
GC III, Art. 4(A)(6).
32
Problem ¶15.
33
Commentaries to the Geneva Conventions and its Additional Protocols, ICRC, p.368.
34
Prosecutor v. Tadic (1999), ICTY-94-1-A, Appeals Judgment (“TadicJudgment”),
¶¶166-169.
35
Prosecutor v. Zejnil Delalic et al (2001), IT-96-21-A, Judgement, ¶84.
36
Problem, ¶21.
Page 7 of 19 (D21)
19. “Knowledge” means awareness that a circumstance exists or a consequence will
occur in the ordinary course of events, 37 With respect to nationality, it is
understood that the perpetrator needs only to know that the victim belonged to an
adverse party to the conflict.38

20. In the first count, the detained civilians in North Alphalia were against the Fring
regime, 39 thus constructing defensive emplacements fit their political views.
Hence, they did not belong to the adverse party. Therefore, the perpetrator was not
aware that the civilians belonged to the adverse party.

21. In the second count, Mr. Robot was an Alphan citizen but had Bravan heritage and
against Alphan government.40 Rodarte knew these and regarded him as partners to
cooperate with him disrupting Alphan military operation. 41 Hence, Rodarte
thought that Mr. Robot did not belong to the adverse party.

C. Objective Element.

FOR COUNT ONE: RODARTE SHOULD NOT BEAR INDIVIDUAL

RESPONSIBILITY UNDER ARTICLE 25(3)(b) OF THE ROME STATUTE.

22. In order to establish the individual criminal responsibility for ordering, four
elements must be satisfied.42 Herein, two elements are missing:

(a) No instruction.

23. The Trial Chamber must be convinced beyond reasonable doubt from the evidence
that the accused ordered the crime,43 and provide clear, reasoned findings of fact

37
ICC Statute, Art. 30(3)
38
ICC Statute, footnote 33.
39
Problem, ¶11.
40
Id, ¶21.
41
Id, ¶22.
42
Prosecutor v. Sylvestre Mudacumura (2012), ICC-01/04-01/12, Decision on the
Prosecutor’s Application under Article 58 (“Mudacumura Decision”), ¶63.
43
Prosecutor v. Galic (2006), ICTY-98-29-A, Appeals Judgment (“Galic
Judgement”), ¶178.
Page 8 of 19 (D21)
 as to each element of the crime charged.44

24. In this case, Rodarte issued the order to her subordinates to oversee, but not to
coerce the detained civilians to participate.45 Hence, it cannot be confirmed that
Rodarte instructed her subordinates to commit the crime.

(b) Mens rea.

25. The person is at least aware that the crime will be committed in the ordinary course
of events as a consequence of the execution or implementation of the order. 46
Evidence of the execution of that duty cannot be cited as evidence of the
Appellant’s prior knowledge of and assent to those violations.47

26. In this case, Rodarte did not mean to coerce civilians to establish defensive
arrangements, otherwise she would not offer extra rations to tempt civilians into
assistance.48 Therefore, Rodarte was not aware of the substantial likelihood that
the commission of the crime would be a consequence of her acts.

FOR COUNT TWO: RODARTE SHOULD NOT BEAR INDIVIDUAL

RESPONSIBILITY UNDER ARTICLE 25(3)(a) OF THE ROME STATUTE.

(a) Rodarte did not commit the crime as an individual.

27. Solitary Perpetration, namely committing as an individual, refers to the case of a

single person without any assistance or influence by another person commits the
crime.49 Committing would require an accused’s perpetration of the alleged crimes
in person.50

28. In this case, Rodarte obtained the information of Robot from cyberwarfare

44
Prosecutor v. Renzaho (2009), ICTR-97-31-A, Judgement and Sentence, ¶320.
45
Problem, Clarifications in Advance; Problem, ¶17.
46
Mudacumura Decision, ¶63.
47
Prosecutor v. Blaskic (2004), ICTY-95-14-A, Appeals Chamber (“Blaskic”), ¶602.
48
Problem, ¶24.
49
Albin Eser, Individual Criminal Responsibility, Oxford University Press, 2002,
p.789.
50
Prosecutor v. Orić (2006), ICTY-03-68-T, Trial Judgment, ¶269.
Page 9 of 19 (D21)
 captain, 51 without whose help Rodarte could not contact to Robort, let alone
coercing him. Hence, Rodart did not commit the crime as an individual.

(b) Rodarte did not commit the crime jointly with another.

29. Co-perpetration is characterized by a functional division of the criminal tasks

between at least two co-perpetrators.52 In this case, Rodarte personally developed
a plan to coerce Robort to launch the cyber-attack,53 because cyberwarfare captain
did not participate in the contact between Rodarte and Robort.54 Hence, Rodarte
did not commit the crime jointly with another.

(c) Rodarte did not commit the crime through another person.

30. Indirect perpetration requires the existence of organizations which must be based
on hierarchical relations between superiors and subordinates.55 Herein, Rodarte
messaged to Mr. Robot personally, in which subordinates were involved. Hence,
Rodarte did not commit the crime through another person.

FOR COUNT THEREE: RODARTE SHOULD NOT BEAR INDIVIDUAL

RESPONSIBILITY UNDER ARTICLE 25(3)(b) OF THE ROME STATUTE.

31. Regarding to the liability of ordering, herein two elements are missing.56

(a) Rodarte did not instruct another person to commit the crime.

32. The content of Rodarte’s order was only overseeing MPR57 Additionally, Rodarte
expressed that she wanted to get the assistance from MPR.58 Hence, there was no

51
Problem, ¶21.
52
Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal
Court (3rd edn), C.H.Beck·Hart·Nomos, 2016, (“ICC Commentary”), p.988.
53
Problem, ¶22.
54
Ibid.
55
Prosecutor v. Germain Katanga and Mathieu Ngudjolo (2008), ICC-01/04-01/07,
Decision on the confirmation of charges, ¶¶500-518.
56
Prosecutor v. Ntaganda (2014), ICC-01/04-02/06, Decision on the Confirmation of
Charges, ¶145.
57
Problem, Clarifications in Advance.
58
Id, ¶24.
Page 10 of 19 (D21)
 coercion in the instruction.

(b) Rodarte was not aware that order would result in a crime.

33. Intent and knowledge are necessary for criminal responsibility.59 The mens rea of
ordering requires “the accused must intend that the offense be committed in the
realization of the order” 60 Herein, Rodarte talked to MPR’s commander first,
indicating her will to negotiate, instead of directly coercing all members of MPR.61
And Rodarte also to reward MPR for a quicker arrival of rations and winter clothing,
in order to tempt MPR into help.62 Hence, Rodarte did not mean to compel MPR
to serve.

VI. CHARGE FOUR: RODARTE IS NOT GUILTY UNDER ARTICLE

25(3)(b) OF THE WARCRIME OF EMPLOYING METHOD OF
WARFARE UNDER ARTICLE 8(2)(b)(xx).

A. THE METHOD OF WARFARE ADOPTED WAS LAWFUL.

(a) The M1984 mine is not prohibited by annexations of the statute.

37. Throughout all the conventions annexed to Rome Statute, 63 Convention on the
Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel
Mines and on their Destruction (“Landmine Convention”) is the only convention
that bans mines as a subject. 64 However, Landmine Convention only prohibits
anti-personnel mine.65

38. Mines designed to be detonated by the contact of a vehicle, that are equipped with

59
ICC Statute, Art. 30(1).
60
Prosecutor v. Haradinaj (2012), ICTY-04-84bis-T, Public Judgement with
Confidential ANNEX, ¶624.
61
Problem, ¶24.
62
Ibid.
63
Problem, ¶1.
64
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction (“Landmine Convention”), Preamble.
65
Ibid.
Page 11 of 19 (D21)
 anti-handling devices, are anti-vehicle mines rather than anti-personnel mines.66
“Anti-handling device” means a device which is linked to the mine, intending to
protect a mine.67 Herein, the M1984 mine utilized warheads to penetrate the armor
of enemy fighting vehicles,68 and was equipped with the improvised tripwire that
protected it from intentional disturbance.69

39. Therefore, M1984 is anti-vehicle mine and is not banned by annexations of the
statute.

(b) The employment of M1984 was not inherently indiscriminate or disproportionate.

1. The employment of M1984 was not inherently indiscriminate.

40. Two criteria can be applied to exam whether a weapon is indiscriminate: the
capability of targeting at military objective70 and the controllability of its effects.71

41. M1984 was designed to be initiated by a remote control,72 thus it was capable of
targeting at military objective. 73 Additionally, civilians in the Alphan province
were detained 74 and they obtained manuals warning of mines.75 Moreover, the
deployment of the mine complied with marking and warning requirements. 76
Accordingly, civilians in this area could avoid triggering mines. Therefore, the
special caution given to civilians enabled the mine to distinct civilians from
military objectives in terms of effect.

2. The employment of the mine complied with the principle of

proportionality.

66
Id, Art. 2(1).
67
Id, Art. 2(3).
68
Problem, ¶19.
69
Ibid.
70
The International Committee’s Action in the Middle East, ICRC, pp.584-585.
71
Customary IHL (“CIHL”), Rule 71.
72
Problem, ¶19.
73
Prosecutor v. Martić (2007), ICTY-95-11-I, Trial Chamber Judgement, ¶¶461-463.
74
Problem, ¶15.
75
Id, ¶19; Clarifications.
76
Problem, ¶19.
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42. Unnecessary suffering or superfluous injury can be understood as the principle of
proportionality, 77 which requires “a reasonably well-informed person making
reasonable use of the available information” 78 to balance “anticipated military
advantage and incidental losses”.79

43. Herein, the 7th Army had made significant territorial gains in the province of North
Alphalia,80 and its offensive had come close the 3rd Battalion’s positions.81 The
anticipated military advantage lay in denying enemy advance, 82 and without
landmines, Alphan troops would soon overwhelm the comparatively small number
of defenders.83

44. M1984, as anti-vehicle mine, was unlikely to be triggered by people on foot due to
its higher-pressure thresholds. 84 Moreover, civilians in this area could avoid
triggering mines with manuals.85 Accordingly, mines employed here were unlikely
to cause incidental losses.

45. Therefore, the anticipated military advantage of employing M1984 outweighs

incidental losses.

(c) The conduct was not associated with IAC and the perpetrator was unaware of
Factual circumstances thereinto.

46. As stated above, the conflict between Alphan Forces and Bravo was a NIAC.
Rodarte was unlikely to be aware of factual circumstances related to IAC.

B. RODARTE WAS NOT LIABLE UNDER ARTICLE 25 (3)(B).

77
ICC Commentary, p.468.
78
Prosecutor v. Galic (2003), ICTY-98-29-T, Trial Judgement, ¶58.
79
AP I, Art. 51.
80
Problem, ¶14.
81
Id, ¶16.
82
Id, ¶18.
83
Id, ¶16.
84
GICHD – SIPRI, The Humanitarian and Developmental Impact of Anti-Vehicle
Mines, Geneva Press, 2014, p.41.
85
Problem, ¶19.
Page 13 of 19 (D21)
(a) Actus reus.

47. The order given by the perpetrator must have “a direct and substantial effect on the
commission of the illegal act”,86 and there must be sufficient evidence to prove “in
what capacity the accused supported the act”.87 However, Rodarte just gave the
order to deploy M1984 mines,88 not including setting up improvised tripwire.89
But it was the tripwire that led to the deaths of civilians,90 the anti-vehicle mine
itself would not be set off when people stepping on it. Therefore, giving an order
to deploy M1984 mines was, standing alone, an insufficient basis to find Rodarte
was criminally responsible.

(b) Mens rea.

1. Rodarte did not intend to cause the damage.

48. Intentionally directing is the same as “willfully”.91 In this case, the order to deploy
M1984 only sought to deny enemy advance.92 The damage could not constitute
“intent”.

2. Rodarte had no knowledge.

49. The person has knowledge if he “aware that the crime will be committed in the
ordinary course of events as a consequence of the execution of the order”.93

50. Here, Rodarte ensured compliance with the marking and warning requirements
when placing the landmines, 94 and ordered to distribute the manuals to the

86
Prosecutor v. Radovan Karadžić (2016), IT-95-5/18-T, Public Redacted Version of
Judgement, ¶573; Prosecutor v. Jadranko Prlić (2013), IT-04-74-T, Trial Judgement,
¶232.
87
Prosecutor v. Jean-Paul Akayesu (1998), ICTR-96-4-T, Trial Chamber 1, ¶642.
88
Problem, ¶18.
89
Id, ¶19.
90
Id, ¶26.
91
AP I, Art. 85.
92
Problem, ¶18.
93
Mudacumura Decision, ¶63.
94
Problem, ¶19.
Page 14 of 19 (D21)
 civilians to avoid unnecessary sufferings. 95 Accordingly, it was impossible for
Rodarte to foresee the “substantial likelihood” 96 that the damage would occur.
Therefore, Rodarte was not responsible under article 25 (3)(b).

V. CHARGE FIVE: RODARTE DID NOT BEAR INDIVIDUAL CRIMINAL

RESPONSIBILITY UNDER ARTICLE 25(3)(a) FOR THE WAR CRIME
OF ATTACKING PROTECTED OBJECTS.

A. THE WAR CRIME OF ATTACKING PROTECTED OBJECTS IS NOT

ESTABLIASHED.

(a) Rodarte did not direct an attack.

51. The definition of “attack” as “acts of violence against the adversary”,97 meaning
the use of physical force.98 The concept of attack also refers to the use of armed
force to carry out a military operation.99 Herein, Robot attack through cyberspace
rather than through the use of physical force.100 And the attack was his individual
behavior without armed force or military power. Therefore, the “attack” was not
constituted.

(b) The object of the attack was a military object rather than a protected object.

1. The Memorial did not belong to “cultural property”.

52. Cultural property must be protected in conflict.101 It means “objects intimately

associated with the history and culture of a people”102 and was not being used for

95
Ibid.
96
Blaskic, ¶42; Prosecutor v. Dario Kordic, Mario Cerkez (2004), IT-95-14/2-A,
Appeal Judgement, ¶29; Prosecutor v. Jean-Paul Akayesu (2001), ICTR-96-4-A,
Judgment, ¶483.
97
AP I, Art. 49(1).
98
ICC Commentary, p.355.
99
Element of Crimes, p.216.
100
Problem, ¶23.
101
CIHL, Rule 40.
102
Hague Convention for the Protection of Cultural Property, Art. 6.
Page 15 of 19 (D21)
 military purposes.103 Herein, the Memorial was founded to memorize the war and
it had become a symbol of Alphan military power.104 Its military significance was
far beyond cultural significance. Thus, it cannot be defined as cultural property.

2. Even if the Memorial is a cultural property, the protection ceased.

53. Cultural property should be protected.105 However, two exceptional circumstances

will cease the protection.106

54. Firstly, the Memorial had been made into a military objective,107 which are limited
to those objects making an effective contribution to military action by their nature,
location, purpose or use. Its destruction offers a definite, concrete and
perceptible108 military advantage.109

55. Herein, the Memorial was a central to the Fring regime and Alphan military
power.110 Besides, the Memorial located in the capital,111 and the attack towards
it caused tremendous struggle which had never happen there. 112 Additionally,
Fring had used it to expand his influence and consolidate his regime.113 The attack
to it would undermine the morale, plunge the capital into chaos and shake the
regime, which offered a concrete and perceptible advantage. Therefore, the
Memorial was a military object.

56. Second, there is no feasible alternative instead of attacking it. 114 Herein, the

103
Prosecutor v. Blaskic (2000), ICTY-95-14, Trail Judgment (“Blaskic Judgement”),
¶185.
104
Problem, ¶9.
105
ICC Statute, Art. 8(2)(b)(ix).
106
Second Protocol to the Hague Convention for the Protection of Cultural Property
(“Hague Convention”), Art. 6(a); CIHL, Rule 38.
107
Ibid.
108
ICC Commentary, p.363.
109
CIHL, Rule 8; AP I, Art. 52.
110
Problem, ¶9.
111
Id, ¶22.
112
Id, ¶11.
113
Id, ¶8.
114
Hague Convention, Art. 6(a); CIHL, Rule 38.
Page 16 of 19 (D21)
 Memorial, the heart of Alpha115, was the most important and irreplaceable moral
support of Alpha. The attack destroyed the morale and ultimately led to the
military’s collapse.116 Thus, attacking it cannot be replaced by attacking others.

(c) Rodarte did not intend “protected object” to be the object of the attack.

57. “Intent” means that a person must know that his actions will bring about the
objective elements of the crime.117 The perpetrator must know that the institution
is not a military objective and nevertheless carry out the attack.118 Herein, Rodarte
attack the Memorial to undermine Alpha’s morale owing to Fring’s speeches about
his militarism from the Memorial,119 indicating that she considered the Memorial
as a military objective. Thus, Rodarte did not had the intend to attack protected
objects.
58. Moreover, knowledge requires the perpetrator must know that it would cause
incidental injury.120 As stated above, Rodarte intended to undermine morale,121
she did not know the climate system would be damaged as well based on his
common knowledge and purpose. Therefore, Rodarte had no knowledge.

(d) The fourth and fifth elements were not fulfilled.

59. As stated above there exists a NIAC. And there was no substantial evidence to
show that the act against the Memorial took place in the context of IAC.

B. RODARTE SHOULD NOT BEAR INDIVIDUAL CRIMINAL

RESPONSIBILITY UNDER ARTICLE 25(3)(a).

115
Problem, ¶23.
116
Id, ¶24.
117
Lubanga Confirmation, ¶351.
118
Blaskic Judgement, ¶185.
119
Problem, ¶8.
120
Prosecutor v. Hadzihasanovic (2006), ICTY-01-47, Trial Judgement, ¶¶57-64.
121
Problem, ¶22.
Page 17 of 19 (D21)
60. Rodarte did not jointly with another to commit the crime. The elements to establish
co-perpetrator are not fulfilled.

(a) Objective elements.

61. On an objective level there are two requirements. First, the existence of an
agreement or common plan between them.122 Herein, given to Rodarte’s message,
she just told Robot what to do.123 There is no evidence to prove that Robot ever
approved or opposed Rodarte’s plan. Thus, no agreement or common plan existed
between them.
62. Second, the contribution by each co-perpetrator is essential.124 The criteria is that
the suspect has the power to frustrate the crime by not performing his tasks.125
Herein, Robot has Bravan heritage and was against the Alphan militaristic policies.
He was likely to support Bravo126 and might attack the Memorial autonomously.
Thus, the contribution by Rodarte was not essential.

(b) Subjective elements.

63. The suspect must fulfil the subjective elements of the crime. 127 Rodarte did not
know the content and consequence of the attack. Thus, it is impossible for her to
be mutually aware that implementing their common plan may result in the crime.128

122
Lubanga Confirmation, ¶¶343–345.
123
Problem, ¶22.
124
Lubanga Confirmation, ¶¶346–348.
125
Id, ¶342.
126
Problem, ¶21.
127
Lubanga Confirmation, ¶¶349-360.
128
Id, ¶¶361-365.
Page 18 of 19 (D21)
 PRAYER

The Defence respectfully submits that there are substantial grounds to believe that the
Rodarte is not liable to be tried under Article 8(2)(a)(v), 8(2)(b)(xx) and 8(2)(b)(ix) of
the ICC Statute.

RESPECTFULLY SUBMITTED,

AGENTS FOR THE DEFENCE.

Page 19 of 19 (D21)