5TH SURANA & SURANA AND RGNUL INTERNATIONAL LAW MOOT COURT

COMPETITION, 2022
TC - 31

5TH SURANA & SURANA AND RGNUL INTERNATIONAL LAW

MOOT COURT COMPETITION, 2022

IN THE

INTERNATIONAL CRIMINAL COURT

THE PROSECUTOR

v.

KARATA

&

COLONEL MASTIFA

&

ARAGONIA

&

MAGNOA

&

CATATONIS

&

TAMPURA

MEMORANDUM ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS

TABLE OF CONTENTS.........................................................................................................I

INDEX OF AUTHORITIES..................................................................................................II

STATEMENT OF JURISDICTION..................................................................................VII

STATEMENT OF FACTS................................................................................................VIII

STATEMENT OF ISSUES...................................................................................................IX

SUMMARY OF ARGUMENTS............................................................................................X

ARGUMENTS ADVANCED..................................................................................................1

I. KARATA IS NOT LIABLE FOR INCITEMENT TO GENOCIDE...........................................1

II. MASTIFA AND TAMPURA ARE NOT LIABLE FOR ALLOWING THEIR SOLDIERS TO

PERPETRATE WAR CRIMES..................................................................................................7

III. LIEUTENANT MAGNOA OF THE ARALANDIC ARMY SHOULD NOT BE CHARGED

WITH DESTRUCTION OF AND USING CULTURAL PROPERTY AS A SAFE BASE DURING THE

ARMED CONFLICT................................................................................................................10

IV. SOLDIERS ARAGONIA AND CATATONIS HAVE NOT PERPETRATED WAR CRIMES

ON THE INNOCENT CIVILIAN POPULATION OF ARALAND..................................................14

PRAYER.................................................................................................................................17

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INDEX OF AUTHORITIES

CASES

Croatia v Serbia ICJ-118............................................................................................................6

Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor ICTR-99-

52-A........................................................................................................................................1, 5

ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1...............................................................8

Kalimanzira v. The Prosecutor, ICTR-05-88-A.........................................................................2

Prosecutor V Naser Ori IT-03-68-A..........................................................................................8

Prosecutor v. Akayesu, No. ICTR-96-4-T.................................................................................1

Prosecutor v. Al Bashir ICTR-94-55-R.....................................................................................6

Prosecutor v. Bikindi, ICTR-01-72-0048/1...............................................................................4

Prosecutor v. Bikindi, ICTR-01-72-0048/1 Judgment...............................................................5

Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-309..............................................................8

Prosecutor v. Kajelijeli, ICTR-98-44A-T..................................................................................4

Prosecutor v. Kayishema & Ruzindana, ICTR-95-1-A.............................................................6

Prosecutor v. Lubanga, Case No. ICC-01/04-01/06................................................................14

Prosecutor v. Nyiramasuhuko, ICTR-98-42-A..........................................................................1

Prosecutor v. Pavle Strugar, ICTY, Case No. IT-01-42-T.......................................................11

Prosecutor v. Radislav Krstić, IT-98-33-A................................................................................6

Prosecutor V. Sefer Halilovi IT-01-48-A...................................................................................8

The Posecutor v. Callixte Nzabonimana, ICTR-98-44D-T.......................................................3

The Prosecutor v. Augustin Ngirabatware ICTR-99-54-T........................................................2

The Prosecutor v. Dusko Tadic, IT-94-1-AR72.......................................................................16

The Prosecutor v. Dusko Tadic, IT-94-1-T..............................................................................16

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The Prosecutor v. Edouard Karemera & Matthieu Ngirumpatse, ICTR-98-44-A.....................2

The Prosecutor v. Georges Ruggiu, ICTR-97-32-I....................................................................3

The Prosecutor v. Jean-Paul, ICTR-96-4-A...............................................................................2

The Prosecutor v. Pauline Nyiramasuhuko, ICTR-98-42-A......................................................2

The Prosecutor v. Zejnil Delalic and Others, IT-96-21-T........................................................16

The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, It-95-16-T ¶751................................7

Velasquez Rodriguez v. Honduras, IACtHR, Judgment............................................................2

STATUTES

Rome Statute 2002, Article 31 (1)(c).......................................................................................10

Rome Statute, Art. 25(3)(e)........................................................................................................1

The Rome Statue,2002, Art. 25(3)(e).........................................................................................1

The Rome Statute 2002, Article 31 (1) (c)...............................................................................12

The Rome Statute 2002, Article 8 bis (2)................................................................................12

The Rome Statute 2002, Article 8(2)(b)(ix).............................................................................14

The Rome Statute 2002, Article 8(2)(b)(ix).............................................................................10

The Rome Statute, 2002 Art. 25(3)(b), Art. 25(3) (c)................................................................7

The Rome Statute, 2002, Art. 6..................................................................................................4

The Rome Statute, 2002, Article 31 (1)(c).................................................................................9

The Rome Statute, 2002, Article 8(2)(e)(iv)..............................................................................9

The Rome Statute,2002, Art. 21(1)(b.........................................................................................2

The Rome Statute,2002, Art. 25.................................................................................................1

The Rome Statute,2002, Art. 6...................................................................................................1

BOOKS

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AMBOSE, TREATISE ON INTERNATIONAL CRIMINAL LAW: INTERNATIONAL

CRIMINAL PROCEDURE 1016 (Oxford University Press 2016)...........................................1

BANTEKAS AND NASH, INTERNATIONAL CRIMINAL LAW,145,146 (Routledge-

Cavendish 2007).........................................................................................................................4

CRYER R, ROBINSON D, & VASILIEV S, AN INTRODUCTION TO INTERNATIONAL

CRIMINAL LAW AND PROCEDURE...................................................................................2

D JACOBS, ‘STANDARD OF PROOF AND BURDEN OF PROOF’ in Sluiter et al. (eds),

International Criminal Procedure—Principles and Rules (Oxford: Oxford University Press

2013)..........................................................................................................................................2

Dr Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of

International.......................................................................................................................12, 14

Fausto Pocar, Symposium on the Rome Statute at Twenty: Transformation of Customary Law

through ICC Practice.................................................................................................................1

G Boas et al., International Criminal Law Practitioner Library—Volume III—International

Criminal Procedure (Cambridge: Cambridge University Press 2011)......................................2

Guénaël Mettraux. The Law of Command Responsibility,:Oxford University Press, (2009)...8

J COHEN, THE PROBABLE AND THE PROVABLE 285 (Oxford University Press 1977).2

Kai Ambos, Research Handbook on International Criminal Law (2011)................................13

Kai Ambos, The Rome Statute of the International Criminal Court: A Commentary (2002). 13

Kai Ambos, Treatise on International Criminal Law, Vol. I: Foundations and General Part

(2013).........................................................................................................................................8

Robert Cryer, An Introduction to International Criminal Law and Procedure 405 (2014)......13

SCHABAS, GENOCIDE IN INTERNATIONAL LAW 102,150 (Cambridge University

Press 2009).................................................................................................................................4

CONVENTIONS AND REGULATIONS

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Additional Protocol (I) to the Geneva Convention, 1997, Article 16........................................9

Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed

Conflict 1999 Article 52(2)......................................................................................................11

MISCELLANEOUS

El Masri......................................................................................................................................2

The Department of Respondent Dictionary of Military and Associated Terms (Washington,

DC: The Joint Staff....................................................................................................................9

REPORTS

Advisory Opinion on Reservations to the Convention on Genocide Case (1951), ICJ Rep......4

M BURNHAM, Naissance of the Court: The ICC at Ten, GLOBAL POLICY FORUM 48

Courting History: The Landmark International Criminal Court’s First Years, Human Rights

Watch on the Lubanga syndrome, 2008.....................................................................................2

M STAGGS, Second Interim Report on the SCSL, UC BERKELEY WAR CRIMES

STUDIES CENTER 23 (2006)..................................................................................................2

RESEARCH PAPER

Andrew Eshleman, “Moral Responsibility,” in The Stanford Encyclopedia of Philosophy

(Stanford, CA: The Metaphysics Research Lab, Center for the Study of Language and

Information, 2014).....................................................................................................................9

D WIPPMAN, Can an International Criminal Court Prevent and Punish Genocide?

Protection against Genocide: Mission Impossible WESTPORT: PRAEGER PUBLISHERS

91 (2000)....................................................................................................................................2

Martin E. Dempsey, “Mission Command White Paper,” (April 3, 2012).................................9

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Yusuf Aksar, The Victimized Group Concept in the Genocide Convention and the

Development of International Humanitarian Law through the Practice of ad hoc Tribunals”,

5 JOURNAL OF GENOCIDE RESEARCH,............................................................................4

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STATEMENT OF JURISDICTION

The Prosecution request that the International Criminal Court exercise its jurisdiction over

Karata, Mastifa, Aragonia, Magnoa, Catatonis & Tampura pursuant to Article 13 of the

Rome Statute.

[STATEMENT OF JURISDICTION] PAGE | VII

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STATEMENT OF FACTS

The Country of Zanista was one of the largest countries before partition. Zanista comprised

of two main Ethnic groups: Suzu and Pucta. Suzus hold a liberal mentality with beliefs in

Naturalism and follow practices concerning environment protection, peace, sacrifice, and

equality. Puctas are a religious community that practices idol worship. This difference had

been a major reason for the conflict between the two communities and has resulted in many

riots, massacres, and political instability in Zanista.

The partition of Zanista into Araland and caraland in 1970 led to a brutal experience for the

people belonging to each community and holding properties in the entire country. The two

countries are still in a position of rivalry. Araland, with its natural resource of petroleum had

a peaceful trade relationship with many countries, however, Caraland had built a closed

economy, with only Governmental Contracts as a way of international trade.

Araland was also known for its technological development in the field of environmental

protection and medical assistance. It had a good army with advance military system and well-

oiled political relationships with the major powers of the world. In October 2011, when all

the Member States on ANPA were in support of Aralanda becoming a permanent member of

ANPA, Caraland occupied 2 towns on the borders. The United Nations General Assembly

asked Caral and President Karata to stop this illegal occupation. During this period, Human

Rights Activists and Defenders from around the world were producing reports on the

atrocities committed by Karata's troops. Videos of military atrocities started showing up on

the internet and were being shared with the world population. The United Nations Security

Council referred the situation in Araland to the Prosecutor, in accordance with Article 13 of

the Rome Statute, of the International Criminal Court under Chapter VII of the United

Nations.

[STATEMENT OF FACTS] PAGE | VIII

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STATEMENT OF ISSUES

[ISSUE 1]

Karata is accused of crime of incitement to genocide, where he made comments and used

propaganda for his election to instil the feeling of necessity to kill the Aralandians. His statements

of the election campaign of 2000 and 2005 are reflective of his crimes where he uses the term like

rats and dirt to refer to Aralandians.

[ISSUE 2]

Military Commander of the Aralandian Military and the Commander-in-Chief Colonel Mastifa of

the Caralandian Military have been accused that they have allowed their soldiers to perpetrate

war crimes

[ISSUE 3]

Lieutenant Magnoa of Aralandic army is charged with destruction of and using cultural property

as a safe base during the armed conflict.

[ISSUE 4]

Soldiers Aragonia and Catatonis have perpetrated war crimes on the innocent civilian population

of Araland. Aragonia is charged for the atrocities that precipitated on the civilian in 2011 and

Catatonis for the atrocities in 2015. The videos and other documentations by Human Rights

Groups, including the newspaper articles are reflective of that.

[STATEMENT OF ISSUES] PAGE | IX

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SUMMARY OF ARGUMENTS

ISSUE 1: KARATA IS NOT LIABLE FOR INCITEMENT TO GENOCIDE.

Incitement to genocide needs to be established beyond reasonable doubt by the prosecution,

notwithstanding that, the essentials laid down by ICTR and ICTY in various cases with

respect to incitement to genocide are not being met in instant case as the threshold to

establish incitement to genocide is that the intent of the speaker and interpretation of the

audience must be similar and the most reasonable interpretation of the statement shall be

considered. Furthermore, in case the statements are ambiguous, then the reasoning of the

courts have favored the Respondent.

ISSUE 2: MASTIFA AND TAMPURA ARE NOT LIABLE FOR ALLOWING THEIR SOLDIERS

TO PERPETRATE WAR CRIMES

Mastifa and Tampura are not liable in the instant case as the essentials of individual criminal

responsibility are not met. There are four essentials to establish individual criminal

responsibility (1) a position of authority; (2) an instruction; (3) the order’s direct effect upon

the commission of the crime; (4) Actus Reus and Mens Rea. It is conceded that both Mastifa

and Tampura was in a position of authority in relation to their subordinates. However, the

requirement of actus reus and mens rea is not satisfied in the instant case as the Mastifa’s

action signifies lack of mens rea and on the other hand actions of Tampura were out of self-

defence which is a valid defence for excluding liability under the Rome Statute.

ISSUE 3: LIEUTENANT MAGNOA OF THE ARALANDIC ARMY SHOULD NOT BE CHARGED

WITH DESTRUCTION OF AND USING CULTURAL PROPERTY AS A SAFE BASE DURING

THE ARMED CONFLICT

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Lieutenant Magnoa should not be charged with destruction of and using cultural property as a

safe base during the armed conflict as, the war crime of attacking protected objects is not

established because an attack on protected objects is prohibited, except when it for military

objectives. The using of cultural property as a safe base during the armed conflict offered a

military advantage which makes it a military objective to Lieutenant Magnoa and therefore it

no more enjoys the protection conferred to it. Furthermore, Lieutenant Magnoa was acting

under self-defence when he destroyed the cultural property as there was a imminent use of

unlawful force against him.

ISSUE 4: SOLDIERS ARAGONIA AND CATATONIS HAVE NOT PERPETRATED WAR CRIMES

ON THE INNOCENT CIVILIAN POPULATION OF ARALAND

Aragonia and Catatonis have not committed any atrocities on the innocent civilian population

of Araland and the sole evidence against them were videos whose credibility cannot be

established, as the videos do not have a probative value and as they have the sole evidence of

deciding their case, they possess a prejudicial effect. Furthermore, there is no nexus between

the attack on civilians and the armed conflicts.

[SUMMARY OF ARGUMENTS] PAGE | XI

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ARGUMENTS ADVANCED

I. KARATA IS NOT LIABLE FOR INCITEMENT TO GENOCIDE

1. Karata is not liable for incitement to genocide because the Prosecution could not

establish beyond reasonable doubt which of the statements specifically provoked others

to engage in genocide (A); Absence of Dolus specialis (B); The meaning of Karata’s

speeches was ambiguous and therefore were not direct as required by Article 25(3)(e)

(C); Encouraging violence towards Suzus is not direct incitement to genocide (D).

A. THE PROSECUTION COULD NOT ESTABLISH BEYOND REASONABLE DOUBT CLEARLY WHICH OF THE

STATEMENTS SPECIFICALLY PROVOKE OTHERS TO ENGAGE IN GENOCIDE

2. Criminal liability is attracted when an individual: (1) directly incites others to commit

genocide; (2) publicly incites others to commit genocide; and (3) intends to directly and

publicly incite others to genocide.1Given the statutory placement of incitement to

genocide in Article 252 among the other modes of liability, and separated from the

enumerated crimes, Respondent urges this Chamber to require that the Prosecution

show that the underlying crime of genocide itself has occurred.3

3. Genocide is established “when the perpetrator destroys, in whole or in part, a national,

ethnical, racial, or religious group, by killing members of the group or causing serious

bodily or mental harm to members of the group.” 4 As the International Criminal court

1
Rome Statute, Art. 25(3)(e); Prosecutor v. Nyiramasuhuko, ICTR-98-42-A, ¶3338 Judgement (December 14,
2015), 3 KAI AMBOSE, TREATISE ON INTERNATIONAL CRIMINAL LAW: INTERNATIONAL
CRIMINAL PROCEDURE 1016 (Oxford University Press 2016); Ferdinand Nahimana, Jean-Bosco
Barayagwiza, Hassan Ngeze v. The Prosecutor ICTR-99-52-A, ¶723 Judgement (November 28, 2007);
Prosecutor v. Akayesu, No. ICTR-96-4-T, ¶561,562, Judgement, (2 September 1998).
2
. The Rome Statue,2002, Art. 25(3)(e)
3
The Rome Statute,2002, Art. 25; Fausto Pocar, Symposium on the Rome Statute at Twenty: Transformation of
Customary Law through ICC Practice, 183 (2018);
https://www.cambridge.org/core/services/aopcambridgecore/content/view/
E3280DDA4C095469D7AC13110229B036/S2398772318000557a.pdf/transformation_of_custo
mary_law_through_icc_practice.pdf.
4
The Rome Statute,2002, Art. 6.

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(hereinafter ICC) has not yet addressed the definition of “incitement to genocide,” the

Court may consider treaties, principles, and rules of international law pursuant to

Article 21(1)(b) of the Rome Statute. 5 As the International Criminal Tribunal for

Rwanda (ICTR) is the primary source of jurisprudence addressing the issue of

incitement to genocide, Respondent suggests the court to consider ICTR caselaw as a

guide in analyzing this question, while remember that the ICTR Statute differs from the

ICC Statute with regard to how it categorizes incitement.

4. In a catena of judgements,6 including the ICTR Trial Chamber in Akayesu7 (affirmed in

subsequent ICTR jurisprudence) construed “direct” to mean that the words said to

constitute incitement must “specifically provoke” another to engage in genocide.8 Hate

speech or inciting violence does not constitute direct incitement to genocide unless

there is a specific call to engage in the act of genocide. 9 Care should be taken to avoid

criminalising incitement to acts that do not amount to genocide, since the Statute does

not criminalise incitement to any other crime; such restrictivenessis reinforced by the

inchoate nature of the crime of incitement.10

5
The Rome Statute,2002, Art. 21(1)(b); Id. at 3.
6
Id. at 1 ¶1034; Kalimanzira v. The Prosecutor, ICTR-05-88-A, ¶155 (October 20, 2010); The Prosecutor v.
Edouard Karemera & Matthieu Ngirumpatse, ICTR-98-44-A, ¶483 (February 2, 2012); The Prosecutor v.
Pauline Nyiramasuhuko, ICTR-98-42-A ¶3345 (June 24 2011); The Prosecutor v. Augustin Ngirabatware
ICTR-99-54-T ¶52.
7
The Prosecutor v. Jean-Paul, ICTR-96-4-A ¶557; Id at 1 ¶692
8
Id ¶692; M STAGGS, Second Interim Report on the SCSL, UC BERKELEY WAR CRIMES STUDIES
CENTER 23 (2006); M BURNHAM, Naissance of the Court: The ICC at Ten, GLOBAL POLICY FORUM 48
Courting History: The Landmark International Criminal Court’s First Years, Human Rights Watch on the
Lubanga syndrome, 2008; D WIPPMAN, Can an International Criminal Court Prevent and Punish Genocide?
Protection against Genocide: Mission Impossible WESTPORT: PRAEGER PUBLISHERS 91 (2000).
9
CRYER R, ROBINSON D, & VASILIEV S, AN INTRODUCTION TO INTERNATIONAL CRIMINAL
LAW AND PROCEDURE 353,377 (Cambridge University Press 2019); Id at 1 ¶562
10
J COHEN, THE PROBABLE AND THE PROVABLE 285 (Oxford University Press 1977); 2 D JACOBS,
‘STANDARD OF PROOF AND BURDEN OF PROOF’ in Sluiter et al. (eds), International Criminal Procedure
—Principles and Rules (Oxford: Oxford University Press 2013) 1146–7; G Boas et al., International Criminal
Law Practitioner Library—Volume III—International Criminal Procedure (Cambridge: Cambridge University
Press 2011) 385: ‘a precise definition. . .of what constitutes a “reasonable doubt” has proven elusive’; El Masri,
para. 151–152 Velasquez Rodriguez v. Honduras, IACtHR, Judgment, 29 July 1988, paras. 128–138.

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5. The burden is on the Prosecution to identify clearly the statements of Karata that

constitute specific encouragement to engage in genocide.11 The Court looks at each

statement individually, not based on a general impression. There are eleven statements

allegedly under contention.12None of these statements constitute direct incitement to

genocide.

6. The statements are categorized into three groups: first, statements that talk about

acquisition of territory and resources; secondly, those that call for saving and

maintaining the religious beliefs of Puctas. Notably statements under these two

categories are not only ambiguous with respect to the way these objectives are to be

achieved and moreover they do not call for any action against anyone, it leads to the

conclusion that statements were not directed against the Suzus contrary to the

contentions of prosecution.

7. Thirdly, those, which in arguendo, call for physical violence. In what follows, the

Respondent submits that none of these statements specifically provokes others to

commit genocide. However, they are statements, which instils the feeling of hatred

among people, which in turn was used for getting political mandate.

B. THERE IS ABSENCE OF DOLUS SPECIALIS

8. As held by the ICTR Trial Chamber in Akayesu13 and reaffirmed in subsequent ICTR14

and International criminal law jurisprudence, direct and public incitement to commit

genocide requires a specific intent to directly prompt or provoke another to commit

genocide. The speaker must intend to create in the minds of their audience the specific

intent to commit genocide, namely, to destroy, in whole or in part, a national, ethnical,

11
Id at 1 ¶726,727; The Posecutor v. Callixte Nzabonimana, ICTR-98-44D-T, ¶34 (May 31 2012).
12
Compromis ¶5,6,7,10.
13
Id at 1 ¶560.
14
The Prosecutor v. Georges Ruggiu, ICTR-97-32-I ¶40 (June 1 2000).

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racial or religious group, as such. The speaker must also share the specific intent to

commit genocide.15

9. For the same reasons discussed above, there are insufficient grounds to believe that Karata

had the specific intent to destroy the Suzu population physically, as opposed to a generic

intent to gain political mandate by using propaganda. Likewise, there are insufficient

grounds to believe that they intended to create an intent in the minds of their audience to

destroy the Suzu population physically.

C. THE MEANINGS OF KARATA’S SPEECH WERE AMBIGUOUS AND THEREFORE WERE NOT DIRECT AS

REQUIRED BY ARTICLE 25(3) (E).

10. Direct incitement is defined as speech that makes a direct appeal “specifically urging

another” to take criminal action.16 The speech cannot be a vague or ambiguous

suggestion.17 It follows that direct incitement to genocide must be speech specifically

provoking another to “destroy, in whole or in part” a particular ethnic group—incitement

to hatred alone is insufficient. 18 The prosecution must show causation between the inciting

acts and the specific offense of genocide.19

11. To constitute direct incitement to genocide, the persons for whom the message was

intended must have “immediately grasped”20 that the purpose of the speech was to

encourage genocide. This purpose must be evidenced objectively; it is not enough that the

speaker subjectively intended the words to have that effect.21

15
SCHABAS, GENOCIDE IN INTERNATIONAL LAW 102,150 (Cambridge University Press 2009);
BANTEKAS AND NASH, INTERNATIONAL CRIMINAL LAW,145,146 (Routledge-Cavendish 2007);
Yusuf Aksar, The Victimized Group Concept in the Genocide Convention and the Development of International
Humanitarian Law through the Practice of ad hoc Tribunals”, 5 JOURNAL OF GENOCIDE RESEARCH,
211, 224 (2003). 19 Advisory Opinion on Reservations to the Convention on Genocide Case (1951), ICJ
Rep.15, p. 23.
16
Prosecutor v. Kajelijeli, ICTR-98-44A-T, ¶852, (December 1, 2003); Id at 1 ¶ 557.
17
Ibid at 6, ¶ 5986; Id at 1, ¶ 557.
18
The Rome Statute, 2002, Art. 6; Prosecutor v. Bikindi, ICTR-01-72-0048/1 ¶ 388 (December 2, 2008).
19
Id at 1 ¶ 557
20
Id ¶ 558.
21
Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor ICTR-99-52-A, ¶723
Judgement (November 28, 2007)

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12. Direct incitement to genocide constitutes “the only reasonable interpretation” of the

words.22 Coded language can be incitement if its meaning is clear from the context; but if

the words, interpreted in context, remain ambiguous, they cannot constitute direct

incitement to genocide.23 In the case of Prosecutor v. Bikindi,24 the songs Bikindi wrote,

which were broadcasted via radio, were found not to constitute direct and public

incitement to genocide on the account of their ambiguous nature.25

13. Similarly, Karata’s statements could be translated in different ways: The posts calling

for acquisition of lands and saving religious beliefs of Puctas 26 are ambiguous because

beliefs of Puctas can be upheld without harming the Suzus in any way. Furthermore,

expansion of territory can be achieved without killing of civilian Suzus and not necessarily

by genocide; this ambiguity is compounded by the fact that Puctas believe in financial and

economic progress over anything27. The only unifying factor within Puctas is their

religious identity, which can be preserved without harming Suzus.

D. ENCOURAGING VIOLENCE TOWARDS SUZUS IS NOT DIRECT INCITEMENT TO GENOCIDE

14. The posts that call for others to “Use of violence in getting your homeland back

requires the spill of blood and that blood is to be worshipped”, “to win this battle as it is

not just for their country but also to make the world free from dirt” is plausibly a call for

physical violence. In contrast, “what do you do when rats enter your house”, “taking

resources by hook or crook”, is ambiguous, since Suzus could have been asked to leave

the territory, like a mass exodus or subjecting Suzus to a variety of extreme measures not

necessarily killing them.

22
Id ¶ 746.
23
Id ¶ 746.
24
Prosecutor v. Bikindi, ICTR-01-72-0048/1 Judgment, ¶388 (December 2, 2008).
25
Id. at ¶ 421.
26
Compromis ¶ 5.
27
Compromis ¶ 1.

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15. However, even if it is assumed that all of these posts are calls to kill Suzus, this does

not amount to direct incitement to genocide, because genocide requires not just an intent to

kill individual Suzus, but rather an intent to destroy a “substantial” part of the Suzu

population.28 This requirement of substantiality has been applied in subsequent

jurisprudence: (1) In Sikirica, the killing of 1000-1400 Muslims out of a total population

of 49,351 (i.e. 2- 2.8%) was held not to amount to destruction of a substantial part of the

group; although this did not necessarily mean that there was no intent to destroy the group,

the ICTY Trial Chamber used this as evidence against such an intent; 29 Similar reasoning

has been followed in several other cases.30

16. There are insufficient grounds to believe that the statements inciting the killing of

Suzus were immediately understood by the intended audience to encourage the widespread

killing of Suzus to an extent sufficient to satisfy the substantiality threshold. It is relevant

to look at the consequences of the statements as evidence of how they were understood by

the intended audience (although consequences are not an element of the inchoate crime of

incitement).31 There is no exact number of killed Suzus, even if the number of civilians

killed32 is attributed to Suzus, comparing with the above cases, the consequences do not

indicate genocide.

17. Similarly, there are insufficient grounds to believe that the incited violence is

“primarily aimed” at destroying the group physically, as opposed to (e.g.) using

intimidation to achieve other objectives. 33 ‘Save Pucta, at every cost even when violence

presents as the last choice to do that’34 does not essentially mean killing substantial amount

28
Prosecutor v. Radislav Krstić, IT-98-33-A, ¶12, (April 19, 2004); Prosecutor v. Kayishema & Ruzindana,
ICTR-95-1-A ¶577–578, 590, ( June 1 2001).
29
Id ¶75.
30
Croatia v Serbia ICJ-118 ¶437 ( November 18 2008).
31
Prosecutor v. Al Bashir ICTR-94-55-R ¶192,196,205 ( May 22 2009).
32
Compromis ¶ 10
33
The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, It-95-16-T ¶751 ( January 14 2000).
34
Compromis ¶ 5

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of Suzus without any reason. “Use of violence in getting your homeland back requires the

spill of blood and that blood is to be worshipped.” 35 The statement does not clearly calls

for spill of blood of Suzus, it can amount to blood of Puctas fighting for the nation, and

furthermore it does not clearly call for action against civilians (Suzus). The statements like

“what do you do when rats enter your house?”, “to win this battle as it is not just for their

country but also to make the world free from dirt.” 36 might be primarily aimed at violence

just for the sake of it, or to intimidate them as these were made when the two countries

were at war, as it could lead to negatively affecting morale of Suzus, in turn leading them

to surrender, moreover the latter alleged statement can be seen as a way to boost morale of

the Caralandian army.

18. Neither of these aims necessarily amounts to (and may even be inconsistent with) the

words being primarily aimed at the destruction of a substantial part of the group. For these

reasons, there are insufficient grounds to believe that any statement constituted direct

incitement to commit genocide.

II. MASTIFA AND TAMPURA ARE NOT LIABLE FOR ALLOWING THEIR SOLDIERS TO

PERPETRATE WAR CRIMES.

19. The Rome Statute provides for individual criminal responsibility. 37 It is submitted that

There are four essential elements to establish individual criminal responsibility; (1) a

position of authority; (2) an instruction; (3) the order’s direct effect upon the commission

of the crime; (4) Actus Reus and Mens Rea.38 It is conceded that both Mastifa and

Tampura was in a position of authority in relation to their subordinates 39. Even after that

35
Compromis ¶ 6
36
Compromis ¶ 10
37
The Rome Statute, 2002 Art. 25(3)(b), Art. 25(3) (c).
38
ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1- Decision on the Prosecutor’s application under Article
58, PTC II, (13 July 2012), ¶ 63; ICC, Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-309, PTC II, (9 June
2014), ¶ 145.
39
Compromis ¶ 10; Clarifications ¶ 13.

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Respondent submits that Mastifa is not liable for commission of war crimes (A). Tampura

is not liable for commission of war crimes (B).

A. MASTIFA IS NOT LIABLE FOR COMMISSION OF WAR CRIMES

20. Mastifa is not liable under the Rome Statute as there was neither any instruction nor

any order which had a direct effect on the commission of the crime. Notwithstanding that,

there was no act or omission (Actus Reus) (A.1) and there was absence of Mens Rea

(A.2).

[A.i] There was no act or omission

21. Act or omission in customary international law (hereinafter CIL) and international

criminal law (hereinafter ICL), includes responsibility of the superior towards his soldiers.

Superior has responsibility towards the actions of his soldiers.40 However, it is restricted to

the material powers of the superior.41 Material powers of the superior includes reasonable

measures such as measures undertaken to prevent any unlawful event. The ICTY,

interpreted "necessary and reasonable measures" are limited to measures within someone’s

power, as no one can be obliged to perform the impossible. 42 Mastifa could not have

predicted and prevented such event, as in the instant case he instructed the soldiers not to

commit any crime against humanity or war crime, against any civilian, women, children,

or prisoner of war and proper training was also provided to them. 43 Hence, it can be

concluded that by giving specific instructions and proper training to the army, Mastifa

exercised reasonable care and therefore he must not be held liable.

[A.ii] There was absence of mens rea

40
Prosecutor V Naser Ori IT-03-68-A ¶ 177; Prosecutor V. Sefer Halilovi IT-01-48-A, ¶ 63.
41
Id. ¶ 338; Kai Ambos, Treatise on International Criminal Law, Vol. I: Foundations and General Part (2013),
159, 178; Guénaël Mettraux. The Law of Command Responsibility,:Oxford University Press, (2009) 82.

42
Id at 4 ¶ 707.
43
Compromis ¶ 10.

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22. Presence of mens rea requires that the accused ‘knew’ of the crimes being

committed.44 Mastifa’s instructions clearly show he did not have the required mens rea.

Notwithstanding that, it is pertinent to note that militaries work under a chain of

command.45 Given the crucial circumstances of war,46 Mastifa being commander in chief

of the army, which is top of the chain of command could not have overseen the actions of

individual soldiers which are at the bottom. In such an event it was the job of other

officers under the chain of command to report to him if any such activity was being

committed.

23. In the light of above arguments, it can be concluded that the requisite elements are not

being met in the instant case as even if there was position of authority, there was no

instruction which directly resulted in commission of the crime, the instructions makes it

evident that the requisite mental element was absent. Moreover, he reasonably carried out

his obligations by giving them proper training, and he could not oversee every action of

every soldier due to the chain of command, therefore he must not be held liable.

B. TAMPURA IS NOT LIABLE FOR COMMISSION OF WAR CRIMES

24. Attacking protected objects or using them in support of the military effort is

prohibited under international criminal law.47 In CIL and ICL self-defence is a ground for

excluding criminal responsibility.48 Self-defence can be availed if there is a qualified

44
Id at 4 ¶ 478.
45
The Department of Respondent Dictionary of Military and Associated Terms (Washington, DC: The Joint
Staff, November 8, 2010, as Amended Through 15 January 2015); Martin E. Dempsey, “Mission Command
White Paper,” (April 3, 2012); Andrew Eshleman, “Moral Responsibility,” in The Stanford Encyclopedia of
Philosophy (Stanford, CA: The Metaphysics Research Lab, Center for the Study of Language and Information,
2014)
46
Compromis ¶ 9, 10.

47
Additional Protocol (I) to the Geneva Convention, 1997, Article 16; The Rome Statute, 2002, Article 8(2)(e)
(iv).
48
The Rome Statute, 2002, Article 31 (1)(c)..

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danger to a person or property by unlawful force. Respondent submits that Tampura orders

which resulted in destruction of cultural properties49 were acts of self-defence.

25. In the present case, Caraland being the superior military power 50 was conducting air

strikes and using dangerous weapons.51 The intensity of the attack, demonstrated by the

death of civilians52 and occupation of territory53, is indicative of a qualified danger to

Tampura’s life. As there was qualified danger by unlawful force, as a military commander

it was reasonable for Tampura to call for retaliation in self-defence.54

26. To conclude, in the present case although there was presence of authority, additionally

there was an instruction, which subsequently resulted in destruction of cultural property,

however there was absence of mens rea, the acts of Magnoa carried out on orders of

Tampura were acts of self-defence,55 Therefore the requisite elements are not fulfilled,

hence Tampura must not be held liable.

III.LIEUTENANT MAGNOA OF THE ARALANDIC ARMY SHOULD NOT BE CHARGED WITH

DESTRUCTION OF AND USING CULTURAL PROPERTY AS A SAFE BASE DURING THE

ARMED CONFLICT.

27. Direct and intentional attacks against buildings dedicated to religion, education, art,

science or, historic monuments are considered as war crime, if they are not military

objectives.56 Use of property which is essential for the survival of the person, another

person or which is essential for accomplishing a military mission, against an imminent and

unlawful use of force is a ground for excluding criminal responsibility of War Crime. 57

49
Compromis ¶ 10; Clarifications ¶ 13.
50
Compromis ¶ 4.
51
Compromis ¶ 10.
52
Compromis ¶ 10.
53
Compromis ¶ 10.
54
Compromis ¶ 10; Clarifications ¶ 13.
55
Compromis ¶ 10; Clarifications ¶ 13.
56
The Rome Statute 2002, Article 8(2)(b)(ix).
57
Rome Statute 2002, Article 31 (1)(c).

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Lieutenant Magnoa should not be charged with destruction of and using cultural property

as a safe base during the armed conflict because, the war crime of attacking protected

objects is not established [A]; Lieutenant Magnoa was acting under self-defence [B].

A. THE WAR CRIME OF ATTACKING PROTECTED OBJECTS IS NOT ESTABLISHED.

28. Protected objects are buildings dedicated to religion, education, art, science, or

charitable purposes; historic monuments; hospitals; or places where the sick and wounded

are collected.58 An attack on protected objects is strictly prohibited, save for military

objectives.59 In circumstances where the protected buildings are designated as military

objectives, the buildings would then lose their protected status.60

29. A military objective is an object which by its nature, location, purpose, or use makes

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.61

30. During the armed conflict, Caraland conducted airstrikes and other attacks on

Araland.62 In order to take measures in self-defence and respond to these air strikes and

other attacks, the Araland Army engaged in the destruction of certain cultural properties.63

31. As these cultural properties were located in the region where air strikes were

conducted by the Caraland Army, their location and their use as bases offered a military

advantage, they served as a military objective at the time of attack and the protection

accorded to them was lost. Aradandian Army used their own cultural property as military

58
Id. at 60.
59
Id. at 60.
60
Prosecutor v. Pavle Strugar, ICTY, Case No. IT-01-42-T, [310].
61
Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1999
Article 52(2),
62
Compromis ¶ 10.
63
Compromis ¶ 10.

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bases and thus the cultural properties have lost their status of protected property.

Therefore, destroying them is not a war crime.

B. LIEUTENANT MAGNOA WAS ACTING UNDER SELF-DEFENCE

32. Article 31 (1) (C) provides for self-defence as a ground for excluding criminal

responsibility.64 The two essential requirements for the exercise of self-defence are; a

qualified danger to a person or property by unlawful force [B.i]; and a proportionate defence

against it [B.ii].

[B.i]: a qualified threat to a person or property through the use of unlawful force

33. The exclusion of criminal responsibility in any of the various instances of this

provision requires the ‘use of force’ which should be ‘unlawful’ and ‘imminent’. The use of

armed force by a state against the sovereignty, territorial integrity, or political independence

of another state, or in any other manner inconsistent with the Charter of the United Nations, is

a crime of aggression.65

[B.i.i] Use of Force

34. Force can be used in different ways and to different degrees, and so it can be

understood in a broad way.66 There was blanket bombing being conducted in the Aralandian

territory by Caraland.67 There was destruction of magnanimous amount and loss of life.68 The

continuous attacks being conducted on Araland by the Caralandic army makes the use of

force evident in the present case.

[B.i.ii] Unlawful Act

64
The Rome Statute 2002, Article 31 (1) (c).
65
The Rome Statute 2002, Article 8 bis (2).
66
Dr Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International
Humanitarian Law 238 (2012).
67
Compromis ¶ 10.
68
Id.

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35. The use of force by the attacker must be unlawful use of force. Unlawful use of force

occurs when the use of force is not justified on its part by law or any other legally valid

permission or order, and the unlawful force needs not to be criminal for being averted.69

36. The attacks compromised the territorial integrity of Araland, as Caraland advanced

into their territory without any lawful permission and 75% of the geographical area was

occupied by Caraland.70 Furthermore, there was destruction of cultural property by

Caraland.71 The use of force by Caraland cannot be said to be justified or legally valid

therefore, there was unlawful use of force being committed by the army of Caraland.

[B.i.iii] Imminent Danger

37. The use of force is imminent if it is immediately antecedent, presently exercised, or

still enduring.72 In the present case, there were several airstrike being continuously conducted

on the Aralandian territory by the Caralandian army.73 Additionally , the need to convert a

part of the roof of the cultural building into a safe place in order to provide cover for troops in

the midst of an airstrike proves that the attack was imminent and enduring. 74 In light of the

above argument it can be concluded that the continuous nature of air strikes makes the attack

imminent in nature.

[B.ii] A proportionate defence against it.

38. The defensive reaction must be reasonable in terms of being necessary as well as able

to prevent the danger. This means that the defensive reaction might neither be excessive by

causing more harm to the aggressor than is needed for diverting the attack or a danger nor

inapt by implying inefficient or otherwise futile means.75 Furthermore, even as far as the

defensive reaction is reasonable in terms of being necessary and suitable to divert the force
69
Robert Cryer, An Introduction to International Criminal Law and Procedure 405 (2014).
70
Compromis ¶ 10.
71
Compromis ¶ 10.
72
Kai Ambos, The Rome Statute of the International Criminal Court: A Commentary 1003, 1032 (2002).
73
Compromis ¶ 10.
74
Compromis ¶ 10.
75
Kai Ambos, Research Handbook on International Criminal Law 299, 308 (2011).

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and danger, it still must be performed in a ‘proportionate manner’.76 Additionally, conversion

of cultural property is not unlawful in case of military necessity.77

39. In the present case the Caralandic army has not only unlawfully compromised the

territorial integrity and sovereignty of Araland, but there were Airstrikes and bombing being

conducted by them throughout the city, moreover, there were civilian attacks being conducted

by Caralandic army. The attacks by the Aralandic army in retaliation of these attack though

destructed cultural property but did not harm any civilians and therefore cannot be said to be

disproportionate. Additionally, the cultural property used to take cover from the air strikes

was a military necessity and it cannot held unlawful.

IV. SOLDIERS ARAGONIA AND CATATONIS HAVE NOT PERPETRATED WAR CRIMES ON THE

INNOCENT CIVILIAN POPULATION OF ARALAND.

40. Aragonia and Catatonis have not committed any atrocities on the innocent civilian

population of Araland and there is no credible evidence for the same.

[A] The credibility of Evidence has not been established.

41. The ICC’s approach to the admission of evidence is outlined in the Rome Statute and

the Rules of Procedure and Evidence, as well as its e-protocol78. Rule 69(4) of the ICC

Rules of Procedure and Evidence (“Rules”) directs judges to admit evidence, “taking into

account, inter alia, the probative value of the evidence and any prejudice that such

evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness.” 79

Therefore, in order for evidence to be admissible in the ICC it the has to establish; i)

Probative value; ii) Absence of a prejudicial effect.

76
Dr Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International
Humanitarian Law 261 (2003).
77
The Rome Statute 2002, Article 8(2)(b)(ix).
78
Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, (2007), Decision on Confirmation Charges, ¶ 100.
79
Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on Confirmation Charges, ¶ 100.

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[A.i] Probative value

42. Probative value, is comprised of two parts: a) reliability of the exhibit, and b) the

extent to which the exhibit is likely to influence the determination of a particular

issue. The purpose of reliability is to determine whether a piece of evidence is what it

purports to be. Reliability can be established by authentication i.e originality, integrity,

date/ location of the recording.

43. The videos in question are the only evidence of alleged atrocities being committed by

Aragonia and Catatonis against the civilian population. Therefore, these videos hold

influence to determine the outcome of the current issue and for the same their reliability

must be established.

44. In the present case, the video cannot be said to reliable as the authentication cannot be

established. The video came from an open source, so the source, location or time of the

video cannot be found. Additionally, the integrity and originality has not been established.

The videos in question are the only evidence of alleged atrocities being committed by

Aragonia and Catatonis against the civilian population. In light of the above argument, it

can be concluded that the videos in question does not have a probative value.

[A.ii] Absence of a prejudicial effect.

45. Open-source evidence may raise significant concerns in this area, particularly if the

underlying information is compiled in such a way that it appears to be determinative of the

case; editing can have significant effects on a party's apparent guilt in ways that are

problematic because they may deviate from the objective truth underlying a particular

event.

46. The videos in the present case are the only determining factor for the alleged atrocities

committed against civilians and is the sole determinative of the case. Considering the

hostile environment of the armed conflicts the Probability of these videos being edited or

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tampered is high, moreover the reliability of videos is not been established. Therefore, it

would be unfair and unjust to held Aragonia and Catatonis criminally liable solely on the

basis of the videos.

[B]. The attack on Civilians has no nexus with the armed conflict

47. A sufficient nexus must be established between the alleged offence of war crime and

the armed conflict, which gives rise to the applicability of international humanitarian

law.80 For an offence of war crime to be a violation of international humanitarian law, it

must be established that each of the alleged acts was in fact closely related to the

hostilities.81

48. In the present case the alleged offence of war crime that was committed by Aragonia

was an attack against civilian, the sole evidence of which was a video of him standing next

to 6 Aralandic girls sitting on their knees with their faces battered. Even if it considered

that Aragonia did attack them there is no rational nexus between the hostilities and the

armed conflict. Similarly, Catattonis was alleged of flogging a civilian, the sole evidence

of which is a video whose credibility cannot be determined. And even if it considered that

Catatonis did attack them, there is still no nexis between the alleged offence of war crime

and the armed conflict.

49. As there is no nexus between the alleged offence and the hostilities, Aragonia and

Catatonis cannot be held liable for the act of war crime.

80
The Prosecutor v. Dusko Tadic, IT-94-1-T, ¶ 572; ICTY, The Prosecutor v. Zejnil Delalic and Others, IT-96-
21-T, ¶ 3.34, 26
81
Ibid., ¶ 573. The Prosecutor v. Dusko Tadic, IT-94-1-AR72, ¶ 69; ibid., ¶ 70; The Prosecutor v. Zejnil Delalic
and Others, IT-96-21-T, ¶ 193–4.

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PRAYER

Wherefore In Light Of The Questions Presented, Arguments Advanced, And Authorities

Cited, The Respondent Respectfully Requests This Court To Adjudge And Declare That:

I. Karata is not liable for the crime of incitement to Genocide;

II. Commander Tampura and Mastifa both are not individually criminally responsible;

III. Lieutenant Magnoa of the Aralandic army should not be charged with the destruction

of and using cultural property as a safe base during the armed conflict;

IV. Soldiers Aragonia and Catatonis have not perpetrated war crimes on the innocent

Civilian Population of Araland.

And pass any order, direction or relief that it may deem fit in the interests of justice, equity

and good conscience. All of which is humbly prayed.

S/d

Counsels for the Respondent.

[PRAYER] PAGE | 17