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IHL
ARGUMENTS ADVANCED...................................................................................................5
II. THE DEFENDANT DID NOT KNOW THE CIRCUMSTANCES AT THE TIME
WHEN HE SHOULD HAVE KNOWN THAT THE FORCES WERE COMMITTING
OR ABOUT TO COMMIT SUCH CRIMES........................................................................6
1
Statement of Agreed Facts. [3].
2
Barcelona Traction Case.
3
Vol. 94, The Hon Justice Winston Anderson, The Law of the Sea in the Caribbean, 226-227, Brill and Nijhoff
Jan 2022.
4
The legal action quoted in the section is explicitly related to the destruction of the ship.
5
Supra Note 3.
6
Statement of Agreed Facts. [47].
7
Art. 28(b), Rome Statute.
Defendant on the basis of the responsibility of superiors as per Art. 28 to the Rome
statute, the following conditions must be fully established8.
i. Crimes were committed within the effective responsibility and control of the
superior.
ii. Either knew or owing to the circumstances at the time should have known that the
forces were committing or about to commit such crime and
iii. Failed to take necessary and reasonable measures within his or her power to
prevent their commission.
8
Ibid.
9
Prosecutor v. Mucic et. Al, ICTY T. Ch., 16 November 1998, At [370].
10
Statement of Agreed Facts. [48].
11
Art. 86, Additional Protocol I.
It is submitted before this Hon’ble Court that it was held that the disregard or non-
compliance with orders or instructions of the accused indicates lack of effective
control12.
The indicators of effective control are a matter of evidence 13. In order to evaluate
the effectiveness of the commander’s control, it hence necessary to look to the
evidence provided on a case-by-case basis14. It is provided that the Defendant’s
orders were to assess the character and check each and every vessel pursuant to
the and further use any lawful means necessary to secure the weapon15.
It is thus established that the Defendants does not have superior responsibility with
respect to the alleged war crime on grounds that he did not have effective responsibility to
the commission, he did not know about the commission of the crime and he did have
power to repress or prevent the commission of the crimes.
12
Prosecutor v. Jean-Pierre Bemba Gombo, International Criminal Court, Trial Chamber III, Judgment pursuant
to Art. 74 of the Statute, ICC-01/05-01/08, 21 March 2016, At [190].
13
Prosecutor v. Blaskic (2004), ICTY, IT-95-14-A, Appeals Judgment (“Blaskic”), At [69].
14
Prosecutor v. Mucic et al., ICTY A. Ch., Judgement, 20 February 2001, At [197].
15
Statement of Agreed Facts. [29].
16
Statement of Agreed Facts. [29].
The attack that was done was impulsive and quick 17, done without the consideration of the
president. Therefore, an important element of directing an attack which is the causal link 18
between the defendant and the attack remains unsatisfied and isolated.
The second element demands that the object must be a civilian object, the definition of the
civilian object and the additional phrase added to the element shows the intent of the
principal i.e., when it is categorically mentioned that object should be something which is are
not of military objectives it is intended of them to envelop the civilian objects under military
objects19 which are used for the military objects. Therefore, the nature and the attack on the
civilian object must be analysed as behaviour20.
The behaviour of the vessel was of the military object, it was carrying the Radish21 System
which was a defensive system22 which; by the way of its location near the port of Milkeno; by
its nature of carrying that particular weapon; by its way of purpose and use in the battlefield
against the CAF would have offered a definite military advantage. Moreover, the presence of
the MDF personnels were also present on the vessel that is claiming to be a civilian ship23.
Therefore, even if the court engages in the examination of the crime against defendant, the
element of it being a civilian object is infertile to a extent that the charge on this sole basis
should be quashed.
It is humbly submitted to the Hon’ble Court that there is not causal link between the action of
the defendant in that particular time frame and the captioned attack that establishes the
specific intent. The court has previously specified that this intention is in addition to the
standard mens rea requirement provided in Article 30 ICC Statute, that is, there must be a
“Dolus Directus” of first degree, that is, a concrete intent26. The concrete intention is to
acquire the Radish system by peaceful means and not to attack any sort of civilian object.
Therefore, the defendant is not liable for the attack on, destruction of Chameleon.
i. Crimes were committed within the effective responsibility and control of the
superior.
ii. Either knew or owing to the circumstances at the time should have known that the
forces were committing or about to commit such crime and
27
Art. 28(b), Rome Statute.
28
Ibid.
iii. Failed to take necessary and reasonable measures within his or her power to
prevent their commission.
It is submitted before this Hon’ble Court that it was held that the disregard or non-compliance
with orders or instructions of the accused indicates lack of effective control32.
The indicators of effective control are a matter of evidence 33. In order to evaluate the
effectiveness of the commander’s control, it hence necessary to look to the evidence provided
on a case-by-case basis34. It is provided that the Defendant didn’t even knew about the attack
29
Prosecutor v. Mucic et. Al, ICTY T. Ch., 16 November 1998, At [370].
30
Statement of Agreed Facts. [48].
31
Art. 86, Additional Protocol I.
32
Prosecutor v. Jean-Pierre Bemba Gombo, International Criminal Court, Trial Chamber III, Judgment pursuant
to Art. 74 of the Statute, ICC-01/05-01/08, 21 March 2016, At [190].
33
Prosecutor v. Blaskic (2004), ICTY, IT-95-14-A, Appeals Judgment (“Blaskic”), At [69].
34
Prosecutor v. Mucic et al., ICTY A. Ch., Judgement, 20 February 2001, At [197].
therefore it was far from ascertainment that the attack would result in detainment of MDF
personnels.
It is thus established that the Defendants does not have superior responsibility with respect to
the alleged war crime on grounds that he did not have effective responsibility to the
commission, he did not know about the commission of the crime and he did have power to
repress or prevent the commission of the crimes.
Act of God: it is respectfully submitted that the detainees died a natural death was as a result
of uncontrollable situations from the torrential rains, sporadic weather of which amounted to
pneumonia and boils. The similarity of the symptoms compared to that of Deathicron was
such that a man of ordinary prudence could believe that they have contracted the deadly
disease. Going to the hospital was not visible since hostilities were still on and the safety of
the detainees had to be guaranteed, the difficulties in transferring them to a convenient place
clearly shows how impossible it became to convey them to the hospital. Majority of the
military personnel and doctors ran aware during the outbreak of diseases due to the
unfavourable weather condition; they were not wilfully left without care or assistance; proper
steps were taken by Admiral Neptune who provided them an area to cultivate their own food
suitable for their religion and capable to build their mental health. There was also the
delegation of Ms. Flexi to take care of them and contact medical doctor if necessary; the fact
that the doctors were not contacted indicates that the necessity did not arise, no intentions has
been made out as the motive to kill them. Deathricon was so high and had tendency of
causing death in a short span of time, no attempt was made by Monstera to evacuate its
citizens.
All these factors point toward the irresistible conclusion that President Moscow did not
willfully kill the detainees and cannot be held liable for the alleged war crime.
It is worthwhile to mention that the deaths of the detainees occurred in a peculiar situation
and the reason for the death of the detainees is still unknown 35, even if an inference were to
be made of the death reason the most factually logical path that the court can take is of
Deathicron and it is needless to say that it was not induced by the defendant.
It is imperative to note that, firstly if we look at the factual instances to ascertain what was
the intent of the forces that the CAF first rescued the detainees and then medically treated
them, following the proper regulations of medical treatment of the prisoners of war 36. The
forces did the best they could in that situation. The soldiers converted unused cabins so as to
ensure there was a place to sleep, they made available toilet, bar soaps, food and water
equivalent to what were given to the CAF soldiers37. There is no mention of suffering or
serious shortage injury done to the body, no torture, biological experiments or inhumane
treatment but only shortage of resources, they were not forced to serve the military of by any
means, and no fair trial was being denied. It has been seen that hostilities were still on, there
was no possibility of going beyond the basics in protecting the prisoners.
Secondly, it is respectfully submitted that the detainees died a natural death was as a result of
uncontrollable situations from the torrential rains, sporadic weather of which amounted to
pneumonia and boils. The symptoms were such that any man of ordinary prudence could
35
Statement of Agreed Facts. [43], [46].
36
Art. 15, Geneva Convention III.
37
Statement of Agreed Facts. [44].
believe that they have contracted the deadly disease. Going to the hospital was not feasible
since hostilities were still on and the safety of the detainees had to be guaranteed.
Thirdly; Majority of the military personnel and doctors ran away due to the outbreak of war.
The detainees were not wilfully left without care or assistance; proper steps were taken by
Admiral who provided them an area to cultivate their own food suitable for their religion and
capable to build their mental health. There was also the delegation of Ms. Flexi to take care
of them and contact medical doctor if necessary; the fact that the doctors were not contacted
indicates that the necessity did not arise, no intentions has been made out as the motive to kill
them.
All this put together to a trail proves that the intent of the defendant was not kill anyone but
rather to save the detainees, in which he failed due to unavoidable circumstances and for that
the present article does not make him criminally liable.
PRAYER
The Defendant respectfully prays that this Hon’ble Court declares that the Defendant is not
criminally liable for the;
1. War crime under Art. 8(2)(b)(xi) of the Rome statute in respect to the attack killing 8 MDF
soldiers, 43 fishermen and 26 Monsteran coast guards on 4 to 5 October 2019.
2. War crime under Art. 8(2)(b)(iv) of the Rome statute in respect with respect to the cutting
of the undersea cable on 29 October 2019.
3. War crime under Art. 8(2)(b)(iii) of the Rome statute in respect to the attack of the
Chameleon on 6 January 2020.
4. War crime under Art. 8(2)(a)(i) of the Rome statute in respect to the deaths of 25 detainees
held on the Deathstar and at the transit camp in Canciferous between January and March
2020.
RESPECTFULLY SUBMITTED