6Defense

The Prosecutor

Azizi Garba

October 2020
 TABLE OF CONTENTS

TABLE OF CONTENTS………………………………………………………………….2

INDEX OF AUTHORITIES………………………………………………………………4

STATEMENT OF FACTS…………………………………………………………………7

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

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

I. PRELIMINARY MATTERS………………………………………………….10

A. Admissibility of the case under the Rome Statute……………………. ……10

B. Nature of the conflict…………………………………………………..........10

I. WAR CRIME OF EXCESSIVE INCIDENTAL DEATH, INJURY, OR

DAMAGE.…………………………………………………………………………11

A. Garba is not individually criminally responsible for the war crime due to the

absence...……………………………………………………………….…...11

B. The attack on the Baobab Tree Sanctuary was a result of the acts of the

Kissakan………………………....………………………………………….11

1. Garba does not have effective control over the Kissakan Forces.

………………………………………………………….13

C. The attack is justified by military necessity.……………………………...….13

Page 2 of 22
II. WAR CRIME OF EXCESSIVE INCIDENTAL DEATH, INJURY, OR

DAMAGE…………………………………………………………………..….14

A. Garba is not individually criminally responsible for the war

crime due………………………………………….....………………...……14

B. The attack is justified by military necessity.………………………………..15

C. The conduct did not take place in the context of an

international armed conflict……….…………………………….……….…15

III. WAR CRIME OF ATTACKING PERSONNEL OR OBJECTS INVOLVED IN

A HUMANITARIAN ASSISTANCE OR PEACEKEEPING

MISSION…………………………………………………………………..…….15

A. Garba is not criminally responsible under the concept of command

responsibility of the Rome Statute………………………………..………15

1. Garba did not direct an attack.…………..………………….....….16

2. Garba did not fail to submit the matter to competent authorities

because he was not aware of the commission of the crime...….…16

B. Garba did not have effective command and control over

Col. Diallo and other perpetrators.….…………………………….….…..17

1. Garba’s persistent lawful orders do not control Lt. Col. Dialo.….18

C. Garba is not criminally liable for intentionally directing an attack

against.……………………………………………………………..……..18

IV. WAR CRIME OF ATTACKING CIVILIANS……………………….……….19

Page 3 of 22
 A. Garba never had the intent to direct an attack to civilians not taking direct

part in hostilities.…….……………………………………………….………19

1. The object of attack was a civilian population who took direct

part in hostilities.……………………………………….….…….19

2. The perpetrator did not intend the civilian population as such or

individual civilians….………………………………….….……..20

CONCLUSION/PRAYER FOR RELIEF…………………………………………………21

Page 4 of 22
 INDEX OF AUTHORITIES

STATUTES, CONVENTIONS, AND OTHER LAWS

Elements of Crimes (Found in pp. 11, 14, & 19)

Rome Statute (Found in pp. 10, 11, 14 & 16)

JURISPRUDENCE

ICC, Bemba Gombo Decision Pursuant to Article 61(7)(a) and (b) of the Rome

Statute 15 June 2009 (Found in pp. 16 & 17)

ICTY, Mucić et al. ("Čelebići") Trial Judgment 16 November 1998 (Found in p. 16)

Judgment, P. v. Augustine Gbao et al., Special Court for Sierra Leone (SCSL),

02.03.2009 (Found in pp. 18 & 19)

Mbarushimana Decision on the Confirmation of Charges, Pre Trial-Chamber

(Found in p. 20)

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United

States of America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27,

1986. (Found in p. 13)

Prosecutor v. Al Bashir, Decision on the Prosecution’s Application for a Warrant of

Arrest, ICC-02/05-01/09 (04.03.2009) (Found in p. 10)

Prosecutor v. Blaskic (2004), ICTY, IT-95-14-A, Appeals Judgment (“Blaskic”)

Page 5 of 22
 (Found in p. 18)

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgment (TC),

22 January 2004 (Found in p. 18)

Prosecutor v. Orić, ICTY T Ch, Judgment, 30 June 2006 (Found in p. 16)

Prosecutor vs. Strugar, Judgment in the Trial Chamber II, IT-01-42-T (2005) (Found in

pp. 11, 12 & 15)

Prosecutor v. Thomas Lubanga Dyilo (Found in pp. 10 & 12)

BOOKS, JOURNALS, AND OTHER SOURCES

Arnold, “Article 28 Responsibility of Commanders and Other Superiors”, in Otto

Triffterer (ed.), Commentary on the Rome Statute of the International Criminal

Court: Observers’ Notes, Article by Article, Hart, 2007 (Found in p. 17)

Attacks Against Cultural Heritage as a Crime Against Humanity, Case Western

Reserve Journal of International Law (2020) (Found in p. 13)

Eser, Individual Criminal Responsibility, Mental Elements – Mistake of Facts and

Mistake of Law, Oxford University Press. 789 (2002) (Found in p. 12)

Henckaerts & Doswald-Beck, Customary International Humanitarian Law, ICRC and

Cambridge University Press, Geneva and Cambridge, 2005 (Found in p. 17)

Page 6 of 22
 How does law protect in war? - ICRC Online Casebook, Chapter 9, II. 4. Definition

of Military Objectives (Found in p. 10 & 15)

Inter-American Commission on Human Rights, Case 11.137 (Argentina) (Found in p.

19)

Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International

Humanitarian Law, 2 vols., ICRC and Cambridge University Press, Geneva and

Cambridge, 2005, I (Found in p. 17)

Leslie Green, The Environment and the Law of Conventional Warfare, 29 Canadian

Yearbook of International Law 222, 233 (1991) (Found in p. 14)

Roberta Arnold, “Article 28 Responsibility of Commanders and Other Superiors”, in

Otto Triffterer (ed.), Commentary on the Rome Statute of the International

Criminal Court: Observers’ Notes, Article by Article, Hart, 2007 (Found in p. 17)

Inter-American Commission on Human Rights, Case 11.137 (Argentina)

(Found in p. 20)

Understanding the International Criminal Court, Is the ICC meant to replace national

Courts? (Found in p. 10)

Understanding the International Criminal Court, Who can be prosecuted before the ICC?

(Found in p. 10)

United States, Naval Handbook (Found in p. 20)

Page 7 of 22
 STATEMENT OF FACTS

The situation between the Kissakan and Momaayo Governments

Momaayo and Kissaka have a fraught history, with near-constant rumblings and small-
scale fighting at the border regions over the past century. While there are existing tensions
between the two nations, in February 2020, they discovered that a large source of oil sits beneath
the border of Momaayo and Kissaka. However, the access point for the oil was situated in
Momaayo within Baobab Tree Sanctuary and was very close to the Nadawada River.
UNESCO declared the places as world heritage sites that should be protected. King Abdu
of Momaayo decided to not proceed with the drilling of oil. Although President Garba of Kissaka
provided a series of lawful orders to secure the oil access point, his forces were constantly
blocked by the Momaayo troops.

The Attack to the Baobab Tree Sanctuary

At 11:25 pm on 24 April 2021, President Garba gave Lt. Col. Diallo the order for troops
from the 1st Commando Battalion to cross the border by stealth through the Momaayo National
Park and infiltrate the quiet village of Dunanti near the border. There were two objectives: a. to
secure the access point to the oil; and b. to peacefully contain the villagers in their houses until
the Kissakan oil miners were able to begin drilling for oil the next day. The orders were clear to
be non-harmful to avoid clash and unnecessary tensions.

The Attack to the Nadawada River

With the growing military force of Momaayo armed with powered firearms traveling in
amphibious assault vehicles, they have the military advantage over the dwindling number of
Kissakan troops. As public pressure on President Garba increased, on 10 July 2021 President
Garba gave the order for Kissakan troops to weaken the Momaayo military by filtering existing
stores of crude oil into the Nadawada River.

The Attack Against UN Personnel

Page 8 of 22
 At 8:30 am on 5 October 2022, President Garba gave Lt. Col. Diallo the order to return to
Dunanti to secure the oil access point. They were to use any lawful means necessary to secure
the access. On the way to the oil access point, Lt. Col. Diallo encountered some UN personnel on
the way with no intent to harm them. Unfortunately, one UN police officer first discharged a shot
against him which accidentally hit a UN colleague. As a response to the imminent threat, Diallo
shot and killed 3 UN personnel.

The Attack Against Momaayan Civilians

When Lt. Col. Diallo and his troops were peacefully setting up electric fences to prevent
villagers from causing a clash, an altercation happened when villages began exiting their homes
to confront the Kissakan troops. Fearing his forces might become outnumbered, Lt. Col. Diallo
yelled orders in local Kissakan dialect to his troops. The Kissakan forces began moving from
house to house, entering homes and forcing all the men and boys into the street. They ordered all
women and children to stay inside. Once the men and boys were in the street, Lt. Col. Diallo
shouted an order, after which the male villagers were lined up and shot in the back of their heads.
From the reports of villagers, it was estimated that 170 Momaayan men and boys died.

Page 9 of 22
 SUMMARY OF PLEADINGS

First, the case brought before the Trial Chamber is admissible pursuant to Article 19 of
the ICC Statute.

Second, the conflict between the Kingdom of Momaayo and the Republic of Kissaka was
a non-international armed conflict.

Third, Garba is not individually criminally responsible for ordering, soliciting, or

inducing the commission of the war crime of excessive incidental death, injury, or damage, with
respect to the acts committed against the Baobab Tree Sanctuary.

Fourth, Garba is not individually criminally responsible for ordering, soliciting, or

inducing the commission of the war crime of excessive incidental death, injury, or damage, with
respect to the acts committed against the Nadawada River.

Fifth, Garba is not criminally liable on the basis of command responsibility for the war
crime of intentionally directing an attack against civilians not taking direct part in hostilities,
with respect to the five UN personnel who were killed on 5 October 2022.

Sixth, Garba is not criminally liable on the basis of command responsibility for the war
crime of intentionally directing an attack against civilians not taking direct part in hostilities,
with respect to the 170 Momaayan men and boys who were killed.

Page 10 of 22
 PLEADINGS

I. PRELIMINARY MATTERS
Garba faces the Pre-Trial Chamber I for the confirmation of charges. The Prosecution
shall provide sufficient evidence to establish substantial grounds to believe that the Defendant
committed each of the crimes charged.1 The Prosecutor shall offer clear and tangible proof that
would demonstrate a clear line of reasoning which will be the basis of the specific allegations.2

A. Admissibility of the case under the Rome Statute

The ICC does not replace national criminal justice systems; rather, it complements them.
It can investigate and, where warranted, prosecute and try individuals only if the State concerned
does not, cannot or is unwilling to do so genuinely. 3 The ICC prosecutes individuals, not groups
or States. Any individual who is alleged to have committed crimes within the jurisdiction of the
ICC may be brought before the ICC.4

B. Nature of the conflict

An internal armed conflict that breaks out on the territory of a State may become
international – or, depending upon the circumstances, be international in character alongside an
internal armed conflict – if another State intervenes in that conflict through its troops (direct
intervention).”5 Specifically, an international armed conflict occurs when one or more States
have recourse to armed force against another State, regardless of the reasons or the intensity of
this confrontation. No formal declaration of war or recognition of the situation is required.6

1 Rome Statute [Statute], art. 61(5).

2 Prosecutor v. Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest,
ICC-02/05-01/09 (04.03.2009), ¶52-53
3 Understanding the International Criminal Court, Is the ICC meant to replace national courts?,
p.11
4 Understanding the International Criminal Court, Who can be prosecuted before the ICC?, p.14
5 Prosecutor v. Thomas Lubanga Dyilo, Decision, ICC-01/04-01/06-803, ¶209.
6 How does law protect in war? - ICRC Online Casebook, Chapter 9, II. 4. Definition of

Page 11 of 22
 The facts clearly show that no international armed conflict happened on April 21, 2021
when Garba ordered the Kissakan troops to secure the oil access point. 7 In fact, the orders were
done in stealth to avoid any clash or tension between the Kissakan troops and villagers of
Momaayo.8 An international armed conflict began to exist only on April 25, when the Royal
Momaayo Army intervened.9

I. WAR CRIME OF EXCESSIVE INCIDENTAL DEATH, INJURY, OR DAMAGE

Garba is not individually responsible 10 for ordering the commission of the war crime of
intentionally launching an attack in the knowledge that such attack will cause widespread, long-
term, and severe damage to the natural environment.11

A. Garba is not individually criminally responsible for the war crime due to the absence
of direct intent to attack the Baobab Tree Sanctuary.
The Rome Statute provides that a person shall be criminally liable for a crime only if it is
committed with intent and knowledge.12 Specifically, the mens rea for attacks and destruction or
willful damage to cultural property is “direct intent to damage or destroy the property in
question.”13 The charge against Garba cannot be directly attributed to him due to the failure of
establishing direct intent on his part.

The order was only to cross the border by stealth through the Momaayo National Park
and infiltrate the quiet village of Dunanti near the border.14 The objectives were only to secure
the access point to the oil and to peacefully contain the villagers in their houses until the

International Armed Conflict

7 Facts, ¶20.
8 Facts, ¶20.
9 Facts, ¶27.
10 Rome Statute, Art. 25(3)(b).
11 Elements, Art. 8(2)(b)(iv).
12 Rome Statute, Art. 30(1).
13 Prosecutor vs. Strugar, Judgment in the Trial Chamber II, IT-01-42-T (2005), ¶295.
14 Facts, ¶ 20.

Page 12 of 22
Kissakan oil miners were able to begin drilling for oil the next day. 15 It can be logically inferred
that Garba never intended to destroy the Baobab Tree Sanctuary as he was cautious to not inflict
any damage.

Additionally, an accused that is not aware he provided an essential contribution to the

implementation of the common plan is not individually responsible for the war crime. 16 Garba
only gave orders and not destructive armaments to enforce what Lt. Col. Diallo did and due to
this, he did not contribute essentially in the commission of such war crimes.

Therefore, the direct intent to damage or destroy the property in question is absent 17.
President Garba cannot be held liable for severe damage to the Baobab Tree Sanctuary.

B. The attack on the Baobab Tree Sanctuary was a result of the acts of the Kissakan
Forces in excess of their authority.
An excess of the principal by committing a crime which was not covered by the intent of
the instigator, cannot be attributed to the latter.18 Garba’s orders were only to safely secure an
access point to the oil.

Garba’s instruction was clear, to cross the border by stealth through the Momaayo
National Park and infiltrate the quiet village of Dunanti near the border. 19 What Lt. Col. Diallo
and the 1st Commando Battalion did were acting beyond what they were commanded to do.
Thus, the consequences resulting from stepping beyond the protocols cannot be attributed to
Garba.

1. Garba does not have effective control over the Kissakan Forces.

15 Facts, ¶ 20.
16 Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I, 29 January 2007. ¶1008.
17 Prosecutor vs. Strugar, Judgment, IT-01-42-A, ICL 767 (ICTY 2008)
18 Eser, Individual Criminal Responsibility, Mental Elements – Mistake of Facts and Mistake of
Law, Oxford University Press. 789 (2002).
19 Facts, ¶ 20.

Page 13 of 22
 Garba did not have full control over Lt. Col. Diallo and his forces the moment they went
beyond the orders. “Effective control” is the manner of an accused who “directed or enforced the
perpetration of the acts contrary to human rights and international law as alleged.”20

Garba knew how important the Baobab Tree Sanctuary is, which is why his order was to
peacefully create a path for the access point to the oil. In this case, the damage from the use of
tanks to create the path flattened and killed over 25,000 baobab tree saplings that had been
planted 9 years earlier as part of the Baobab Tree Sanctuary 21 and the 3 improvised explosive
devices made from ammonium nitrate fertilizer were placed near the two remaining 100-year-old
baobab trees22 were never parts of his intent. Lt. Col. Diallo together with the 1st Commando
Battalion directly committed these damages, making Garba incapable of effectively and actively
controlling them.

C. The attack is justified by military necessity.

Under existing IHL, all types of cultural heritage - including sites of the greatest
importance to humanity, would be subject to the military necessity doctrine and hence would not
enjoy absolute immunity in the context of an armed conflict.23

The extraction of the oil would provide significant benefit to the Kissakan army who had
been unable to afford sufficient oil in the past 10 years.24 Oil, despite its civilian bearing, can be
deemed to constitute the infrastructure of the military industry. It can well be argued that “oil
installations of every kind are in fact legitimate military objectives open to destruction by any
belligerent.”25

20 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986.
21 Facts, ¶21.
22 Facts, ¶22.
23 Attacks Against Cultural Heritage as a Crime Against Humanity, Case Western Reserve
Journal of International Law (2020).
24 Facts, ¶10.
25 Leslie Green, The Environment and the Law of Conventional Warfare, 29 Canadian Yearbook
of International Law 222, 233 (1991).

Page 14 of 22
 II. WAR CRIME OF EXCESSIVE INCIDENTAL DEATH, INJURY, OR DAMAGE
Garba is not individually responsible 26 for ordering the commission of the war crime of
intentionally launching an attack in the knowledge that such attack will cause widespread, long-
term, and severe damage to the natural environment against the Nadawada River.27

A. Garba is not individually criminally responsible for the war crime due to the absence
of direct intent to attack the Nadawada River.
The Rome Statute specifically provides that an individual is only criminally liable if such
an act is committed with intent and knowledge.28

On April 25, the RMA sent a unit of heavily armed soldiers to Dunanti, armed with high
powered firearms.29 Additionally, the Pictopian military sent large supplies of Mk 17 Mod 0
battle rifles to RMA.30 Two hundred and ten local police from the Northern and Eastern
provinces of Momaayo were stationed in Dunanti and armed with Pictopian military-issue
Berreta 92FS M9 pistols. 31
As a response, Garba gave the order for Kissakan troops to weaken
the Momaayo military by filtering existing stores of crude oil into the Nadawada River.32

What Garba did was only to specifically neutralize or disempower the massive threat of
the RMA which at the moment has military advantage over them. Such intent does not fall under
the specific mens rea required to make a person criminally liable, that is, if the attacks and
destruction or willful damage to cultural property is with “direct intent to damage or destroy the
property in question.”33 Garba’s order stemmed from the overwhelming public pressure to
respond to RMA’s military rising power; it was never to destroy the Nadawada River.

26 Rome Statute, Art. 25(3)(b).

27 Elements, Art. 8(2)(b)(iv).
28 Rome Statute, Art. 30(1).
29 Facts, ¶27.
30 Facts, ¶28.
31 Facts, ¶28.
32 Facts, ¶28.
33 Prosecutor vs. Strugar, Judgment in the Trial Chamber II, IT-01-42-T (2005), ¶295.

Page 15 of 22
 B. The attack is justified by military necessity.
The principle of military necessity permits measures which are necessary to accomplish a
legitimate military purpose and are not otherwise prohibited by international humanitarian law. 34

In the case of an armed conflict, the only legitimate military purpose is to weaken the military
capacity of the other parties to the conflict. 35

Garba’s order of weakening the Momaayo military by filtering existing stores of crude oil
into the Nadawada River is a legitimate military purpose. Such an order satisfied the only
standard allowed in an armed conflict, which was to weaken the Momaayo military capacity.

C. The conduct did not take place in the context of an international armed conflict.
See the Preliminary Matters of this memorial for the discussion about the nature of the
international armed conflict.

III. WAR CRIME OF ATTACKING PERSONNEL OR OBJECTS INVOLVED IN A

HUMANITARIAN ASSISTANCE OR PEACEKEEPING MISSION

A. Garba is not criminally responsible under the concept of command responsibility of the
Rome Statute.
In order to prove accountability under command responsibility, the suspect either knew
or owing to the circumstances at the time, should have known that the forces were committing
one or more crimes.36
1. Garba did not direct an attack.
Garba’s order was to secure the oil access point through any lawful means connoting that
Lt. Col. Diallo is absolutely prohibited to incur any extent of damage or harm to any individual

34 How does law protect in war? - ICRC Online Casebook, Chapter 9, II. 4. Definition of
Military Objectives
35 How does law protect in war? - ICRC Online Casebook, Chapter 9, II. 4. Definition of
Military Objectives
36 Rome Statute, Art. 28(a).

Page 16 of 22
in the discharge of his duties.37 He never executed any order to kill UN personnel that might
block them to secure the oil access point.

Additionally, a duty is placed upon the superior to exercise his power so as to prevent and
repress the crimes committed by his subordinates coupled with the required mental
requirement.38 However, the kind and extent of measures to be taken depend on the degree of
effective control over the conduct of subordinates at the time the superior is expected to act.39

In this case, Garba's extent of effective control ends with the order of securing the oil
access point through lawful means. Actions done beyond such order is out of Garba’s scope of
liability.

2. Garba did not fail to submit the matter to competent authorities because he was not
aware of the commission of the crime.
The duty to submit the matter to the competent authorities, like the duty to punish, arises
after the commission of the crimes. Such a duty requires that the commander takes active steps in
order to ensure that the perpetrators are brought to justice. 40 It remedies a situation where
commanders do not have the ability to sanction their forces. This includes circumstances where
the superior has the ability to take measures, yet those measures do not seem to be adequate. 41
There was no available information or report of the actual shooting incident to Garba to enable
him to conclude that there was a crime committed or to be committed.42

37 Facts, ¶36.
38 ICTY, Mucić et al. ("Čelebići") Trial Judgment 16 November 1998, ¶377.
39 Prosecutor v. Orić, ICTY T Ch, Judgment, 30 June 2006, ¶328.
40 ICC, Bemba Gombo Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute 15
June 2009, ¶ 442.
41 ICC, Bemba Gombo Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute 15
June
2009, ¶ 442.
42 Henckaerts & Doswald-Beck, Customary International Humanitarian Law, ICRC and
Cambridge University Press, Geneva and Cambridge, 2005, I, ¶1013.

Page 17 of 22
 It was only on 20 November 2021, where the ICC Prosecutor informed both King Abdu
and Garba that they found there to be sufficient evidence to open an investigation. 43 Only in this
timeframe, Garba was officially made aware of the crimes committed by Lt. Col. Diallo, which
is why as a response, he ordered his troops to retreat to the border.44

B. Garba did not have effective command and control over Col. Diallo and other
perpetrators.
There is usually more than one commander in a chain of command. The latter may
include, e.g. a section leader, a platoon commander, a company commander, a battalion
commander, a brigade commander, a division of commander and others in ascending seniority.
The significant element, for the purpose of criminal responsibility, is a person’s effective
exercise of command, not the fact he or she holds a particular rank.45

Garba was the commander-in-chief of Lt. Col. Diallo, but his rank does not determine his
liability in the killing of the UN personnel. In the chain of command, Lt. Col. Diallo was the
battalion commander in charge at that time who had effective control over the situation and his
subordinates. This is evident when President Garba’s order was only to secure the access point to
the oil through any lawful means, 46 but later on it was Lt. Col. Diallo who orchestrated the attack
against the UN personnel.47 Garba does not have the material ability to prevent or punish the
material conduct of Lt. Col. Diallo when it killed the UN personnel.48

1. Garba’s persistent lawful orders do not control Lt. Col. Diallo.

43 Facts, ¶39.
44 Facts, ¶39.
45 Arnold, “Article 28 Responsibility of Commanders and Other Superiors”, in Otto Triffterer
(ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes,
Article by Article, Hart, 2007, ¶ 830.
46 Facts, ¶36.
47 Facts, ¶37.
48 Prosecutor v. Jean de Dieu Kamuhanda, ICTR-99-54A-T, Judgment (TC), 22 January 2004,
¶605.

Page 18 of 22
 Lt. Col. Diallo’s act of firing and killing without any direct orders by Garba is evidence
of insubordination. Diallo’s insubordination was evident in 2010, where he ordered his troops to
cross the border and attack the village despite the direct order of Garba to maintain peace. Thus,
Garba lacks effective control on the ground over Diallo and the Kissakan military forces in
Dunanti.49

C. Garba is not criminally liable for intentionally directing an attack against personnel
involved in a humanitarian assistance or peacekeeping mission.
Garba never had the direct intent to attack nor did he have the knowledge that his forces
directed an attack against the UN personnel.50

It was primarily the UN personnel’s fault for causing the armed tension. Clearly, it was
the UN police officer who reached for her weapon first and accidentally shot her colleague
which prompted Diallo to shoot back because there was imminent danger against them. 51 The
UN police officer’s act is invalid because if the intent is self-defense, such concept is only valid
when missions have evolved to include the “right to resist attempts by forceful means to prevent
the peacekeeping operation from discharging its duties under the mandate of the Security
Council.52
The UN doctrine on this issue is that peacekeeping operations should only use force
as a measure of last resort, when other means have failed. 53 In this case, other measures
have not been exhausted yet to allow them to resort to force.

IV. WAR CRIME OF ATTACKING CIVILIANS

A. Garba never had the intent to direct an attack to civilians not taking direct part in
hostilities.

49 Prosecutor v. Blaskic (2004), ICTY, IT-95-14-A, Appeals Judgment (“Blaskic”), ¶69.

50 Facts, ¶36.
51 Facts, ¶37.
52 Judgment, P. v. Augustine Gbao et al., Special Court for Sierra Leone (SCSL), 02.03.2009
53 Judgment, P. v. Augustine Gbao et al., Special Court for Sierra Leone (SCSL), 02.03.2009

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 At 11:25 pm on 24 April 2021, Garba gave Lt. Col. Diallo the order for troops from the
1st Commando Battalion to cross the border by stealth through the Momaayo National Park and
infiltrate the quiet village of Dunanti near the border. There were two objectives: a) to secure the
access point to the oil; and b) to peacefully contain the villagers in their houses until the
Kissakan oil miners were able to begin drilling for oil the next day. 54 From that, Garba never
intended to attack any civilian and gave a clear order to not harm anyone.

1. The object of attack was a civilian population who took direct part in hostilities.
In order to invalidate the attack of the Kissakan troops, the civilians must not take direct
part in hostilities.55 Kissakan troops did not attack a civilian population not taking direct part in
hostilities.
Before the clash happened, half of the few Kissakan troops were peacefully setting up the
makeshift electric fences to block pathways of the village to prevent villagers from getting in and
causing chaos.56 Moreover, the Kissakan troops took stealth measures in order to preserve
peaceful control and to avoid clashes.57 It is clear that they never instigated any threat against the
people of Momaayo.

However, King Abdu’s public statement “that every Momaayo man and boy will be
hostile against Kissakan troops,” implies that every civilian in Momaayo is ready to take a direct
part in such hostilities.58

Such a statement motivated the villagers of Momaayo to fight back worsened the
situation. While creating the physical perimeter peacefully, the few Kissakan troops were
engaged by hostile villagers who brandished their spears, machetes and rolling pins. Three
soldiers were injured in the scuffle, dwindling further the few Kissakan troops.59

54 Facts, ¶20.
55 Elements, Art. 8(2)(b)(i).
56 Facts, ¶23.
57 Facts, ¶23.
58 Inter-American Commission on Human Rights, Case 11.137 (Argentina)
59 Facts, ¶25.

Page 20 of 22
 2. The perpetrator did not intend the civilian population as such or individual civilians
not taking direct part in hostilities to be the object of the attack.
Garba’s order to peacefully contain the villagers shows that he never intended to make
them the object of the attack.60 It was only out of fear of being overpowered by the hostile
civilians that motivated Lt. Col. Diallo to order the execution of the 170 men and boys who were
ready to attack the troops.61 Lt. Col. Diallo’s honest determination for the execution was based
on the hostile behavior of the civilians.62

The Kissakan troops did not engage in the scuffle, rather it was the civilians who directly
attacked them. The loss of protection is only clear when a civilian uses weapons or other means
to commit violence against human or material enemy forces, unless in self-defense.63

CONCLUSION/PRAYER FOR RELIEF

Based on the rules and evidence stated above, it is respectfully requested before this
Honorable Chamber to adjudge and declare that the charges against President Azizi Garba be not
confirmed.

RESPECTFULLY SUBMITTED,

60 Facts, ¶20.
61 Facts, ¶25.
62 United States, Naval Handbook, ¶830.
63 Mbarushimana Decision on the Confirmation of Charges, Pre Trial-Chamber, ¶34.

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 Counsel for the Defense

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