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BEFORE THE PRE-TRIAL CHAMBER I OF INTERNATIONAL

CRIMINAL COURT

AT

THE HAGUE

THE PROSECUTOR

Vs.

PRESIDENT ANNA DAVID

“Memorial for Prosecution”

1

List of Abbreviations
Index of Authorities
Statement of Relevant Facts
Statement of Jurisdiction
Questions Presented
Summary Pleadings
Advanced Arguments
Prayer/Relief
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Table of Contents
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List of Abbreviations

UN - United Nations
AP-I - Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts
(Protocol I), 8 June 1977.
GC-I - Geneva Convention (I) for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, 1949
GC-II - Geneva Convention (II) for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1949
GC-III - Geneva Convention (III) relative to the Treatment of Prisoners of War,
1949
GC-IV - Geneva Convention (IV) relative to the Protection of Civilian Persons in
Time of War, 1949
ICJ - International Court of Justice
ICC - International Criminal Court
ICTY - International Criminal Tribunal for Yugoslavia
ICTR - International Criminal Tribunal for Rwanda
NIAC - Non-International Armed Conflict

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Index of Authorities

Table of Cases
1) (Prosecutor v. Martić (Case No. IT-95-11), ICTY T. Ch. Judgment of 12 June 2007
2) (Prosecutor v. Blaškić (Case No. IT-95-14), ICTY T. Ch. Judgment of 3 March 2000
3) Jokić Sentencing Judgement
4) ICTY, Kordić and Čerkez Trial Judgment, 26 February 2001
5) Prosecutor v. Blaškić (Case No. IT-95-14), ICTY T
6) ICC, Mbarushimana Decision on confirmation of charges, 16 December 2011
7) ICC, Lubanga Decision on confirmation of charges, 29 January 2007
8) Prosecutor v. Dario Kordic & Mario Kerkez (Judgement) IT-95-14/2-A, A Ch (17 December 2004)
9) Tadic´ ICTY A. Ch. 2.10.1995
10) ROXIN, C., "Straftaten im Rahmen organisatorischer Machtapparate", Goltdammer's Archiv für
11) Strafrecht (\963\pp. 193-207
12) Katanga and ngudjolo ICC pt. Ch. i 30.9.2008 paras. 490–4
13) Katanga and ngudjolo ICC pt. Ch. i 30.9.2008 paras. 499
14) Jerusalem District Court, Th Attorney General v. Eichmann, Case No. 40/60, Judgement 36
15) I.L.R. 5-14, 18-276, 12 December 1961
16) Jerusalem District Court, The Attorney General v. Eichmann, Case No. 40/60,
17) Prosecutor v. Ori´c, (June 30, 2006)
18) The Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34-T.
19) THE PROSECUTOR V. CALLIXTE MBARUSHIMANA (PRE-TRIAL CHAMBER I) NO.: ICC-
01/04-01/10 Date: 16 December 2011
20) PROSECUTOR v. DU [KO TADI] a/k/a/ “DULE” Case No. IT-94-1-T Date: 14 July 1997
21) PROSECUTOR v. STANISLAV GALIĆ (IN TRIAL CHAMBER I) Judgement of 5 December
2003
22) PROSECUTOR v. MLADEN NALETILI], a.k.a. “TUTA” VINKO MARTINOVI], a.k.a. “[TELA
(Case No. IT-98-34-A) Date: 3 May 2006

International Conventions
1) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 53-b
2) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), 8 June 1977.
COMMENTARY OF 1987, GENERAL PROTECTION OF CIVILIAN OBJECTS
3) Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14
May 1954
4) 1949 Geneva Conventions. - 1977 Additional Protocols I and II, to the Geneva Conventions of 12
August 1949.
5) Rome Statute of the International Criminal Court
6) World Heritage Convention (1972)
7) Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954)
8) The Second Protocol to the Convention for the Protection of Cultural Property in the Event of
Armed Conflict (1999)
9) ICTY

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Books
1) Commentary on Law of International Criminal Court by Mark Klamberg
2) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August
1949 (ICRC, Martinus Nijhoff, Geneva, 1987)
3) Elements of crimes under international law by Gideon Boas, James L. Bischoff & Natalie L. Reid
4) The Rome Statute of the International Criminal Court (A commentary) by Otto Triffterer & Kai
Ambos
5) The law of Command responsibility, (English edition) GUENAEL METTRAUX Jan. 2009
6) An Introduction to International Criminal Law and Procedure by Robert Cryer

Miscellaneous
1) http://www.worldcourts.com/icc/eng/decisions
2) https://www.icrc.org/en/document/how-does-law-protect-war-0
3) Rules of Customary International Humanitarian Law by ICRC (CIHL)
4) Elements of war crimes under the Rome statute of the International Criminal Court
5) NATO Glossary of Terms and Definitions, AAP-6-2009, available at http://
6) www.nato.int/docu/stanag/aap006/aap-6-2009.pdf
7) UN Charter
8) The Dutch International Crimes Act of 9 June 2003
9) http://www.worldcourts.com/icc/eng/decisions
10) https://www.icrc.org/en/document/how-does-law-protect-war-0

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Statement of Relevant Facts

1. Dovariene is a multi-cultural country situated in the west continent of Dua-Hariene. There are
three major political parties. The Futuristic Party (TFP), the Progressive Party (TPP) and the Right
Path Party. The President of the state is also Commander-in-Chief of the armed forces.
Dovariene consists of 25 municipal districts, the largest two being Luckty and Bannut. Major
religions in Dovariene are: The Right Path religion (33%) and the Dovaine Faith (45%).
2. Luckty is the capital city of Dovariene.
3. Dovaine Faith’s ceremonies include the chewing of the Gadoom Root, a plant found locally. Due
to its intoxicating effects it is prohibited under law but is tolerated when it is used for religious
purposes.
4. The Hill Temples of Bannut, a UNESCO World Heritage Site, are the oldest landmark in
Dovariene. They are also an important religious site for Right Path Followers.
5. Spending millions on Hill Temples by RP-led government angered different sections of society.
6. TFP leader Mrs. Anna David was elected President of Dovariene by uniting the followers of
Dovaine Faith and other religions against RPP. She was often criticized for using derogatory
remarks for the followers of other faiths.
7. Despite controversies, Anna kept on advocating and implementing the radical policies. For
instance; chewing of Gadoom Root was made compulsory at every meeting.
8. On 20 November 2020, Anna declared Dovaine Faith as the religion of the Nation. Construction
of Hill Temples was stopped. On 12 May 2021, when responding to increasing international
concerns over religious persecution under her rule, President Anna said; “Other religions will
always be tolerated in Dovariene, but to achieve the goal of a unified and pure society it is
necessary to set a good example by making Dovaine Faith the religion of the nation”.
9. Several opposition groups started protesting against Anna.
10. By January 2021, opposition had formed an armed group, namely “Warriors of Right”. WOR
started attacking local police stations and military bases. The violent clashes between WOR and
Dovariene government forces spread to 13 districts.
11. By August 2021, WOR had gained control over 12 districts including Bannut.
12. On 7 September 2021, Dovariene military forces launched a campaign to regain control over
Bannut. Anna said “the Bannutyes will get what’s coming to them! Our forces will lay waste to
their city and hit them where it hurts…”
13. The Hill Temples were functioning normally for Right path religious activities. On 10 September,
scouts sent by Dovariene military were spotted and killed near the Hill Temples. Aerial
surveillance showed the same frequent passage of armed persons in and out of the Temples
14. On 12 September Anna called an urgent meeting to deal with the ongoing war. General Kamyani
suggested to uproot the Right path fighters by launching an attack on the Hill Temples of
Bannut. President Anna agreed and signed an order drafted by General Kamyani.
15. On 13 September 2021, the Hill Temples of Bannut were completely destroyed. Though
Dovariene forces managed to take over Bannut but the destruction of Hill Temples created a
pessimistic atmosphere all around the globe.
16. The WOR surprise attacks had caused increasing casualties of government soldiers. From 15
August to 15 September, the Dovariene Force bombed five sub-urban buildings which they
suspected to be WOR bases.

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17. Anna authorized the Dovariene military to attack any person, group or building of WOR.
18. Relying on the information by a random informer, Colonel Arthur ordered an airstrike against
the suspected WOR building and bombed it.
19. Due to WOR building’s destruction, several other buildings were also damaged. There was a
complete power cut in the city. Several causalities also occurred. Disheartening atmosphere
occurred in Green Garden. Airstrikes made international headline and further contributed to the
negative image of Anna’s government.
20. According to the report of an international organization dated 30 September 2021, the airstrikes
from mid-August to 20 September resulted in 150 deaths and more than 300 injuries among
Right path civilians. Most of the injured were admitted to the Right Path Hospital, including
WOR fighters and civilians.
21. Medical personnel were the followers of Right Path. They had been reluctant to treat people of
Dovaine Faith.
22. Dovariene military forces evacuated Right Path Hospital to attend their wounded and sick
soldiers in battlefield.
23. People faced a lot of difficulties and were in effect left without medical service. Many civilians
and WOR fighters died of war injuries and lack of medical attention.
24. As the battle in suburban Luckty died down, all 70 Right Path Hospital personnel returned home
unharmed on 25 October 2021.
25. The international community condemned President Anna and the government of Dovariene
over the “despicable acts of war” during their fight against WOR. Resultantly, Anna was ousted
in coup d’état.
26. Dovariene referred the situation in its territory to the International Criminal Court (ICC). On 21st
January 2022, as a result of several investigations and an international manhunt, Anna was
finally arrested and surrendered to the ICC.
27. The Pre-trial Chamber I of the ICC is going to decide whether to confirm the three charges put
forward by the Prosecutor against Anna.

Statement of Jurisdiction
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The prosecutor humbly approaches The International Criminal Court under Art.5 Crimes within the
jurisdiction of the Court, Art. 11 Jurisdiction ratione temporis, Art. 13(c) Exercise of the Jurisdiction
pursuant to Art.61(7) of the ICC Statute i.e., Confirmation of Charges. On the basis of the foregoing, this
Court is requested to adjudge the dispute in accordance with the rules and principles of international
law, including any applicable declarations and treaties.

Questions Presented

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Mrs. Anna is charged with:

1. The war crime of intentionally directing attacks against buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals and places where the sick and wounded
are collected, provided they are not military objectives under article 8(2)(e)(iv).

a. With respect to the attack on the Hill Temples of Bannut on 13 September 2021, (Count 1, on
the basis of individual criminal responsibility for committing, whether as an individual, jointly with
another or through another person under Article 25 (3)(a)):

2. The war crime of intentionally directing attacks against the civilian population as such or against
individual civilians not taking direct part in hostilities under article 8(2)(e)(i).

a. With respect to the series of bombings on Luckty’s suburbs in August and September 2021,
including the airstrike on the morning of 23 September 2021, (Count 2, on the basis of individual
criminal responsibility for ordering, soliciting or inducing (Article 25 (3)(b)):

3. The war crime of violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture against persons taking no active part in the hostilities, including members of
armed forces who have laid down their arms and those placed hors de combat by sickness, wounds,
detention or any other cause under article 8(2)(c)(i)):

a. With respect to the transfer of medical personnel from Right Path Hospital from 24 September to 25
October 2021, (Count 3, on the basis of command responsibility (Article 28 (a)):

Summary of Pleadings

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Count 1
Anna is charged with the war crime of intentionally directing attacks against buildings dedicated to
religion, education, art, science or charitable purposes, historic monuments, hospitals and places
where the sick and wounded are collected, provided they are not military objectives under article
8(2)(e)(iv).

Under Article 8(2)(e)(iv) of Rome Statute, commission of any acts of hostility directed against cultural
objects and places of worship is a punishable crime. President Anna had always advocated radical
religious policies. Throughout her tenure, she had taken many steps which were not acceptable to other
religious groups. This gave rise to many pressure groups in the country. Furthermore, on 13 September
2021, the UNESCO World Heritage Site, the Hill Temples of Bannut were completely destroyed on the
directions of Anna without any particular reason and without taking the due care under consideration.
The prosecution believes that all the essential elements of this crime are satisfied, therefore, Anna David
must be held liable under art 25(3)(a) of the Rome Statute.

Count 2
Anna is charged with the war crime of intentionally directing attacks against the civilian
population as such or against individual civilians not taking direct part in hostilities under article
8(2)(e)(i).

Anna intentionally directed the military chief Kamyani and Colonel Arthur to take all necessary
steps to curb the activities of WOR. She was well aware of the fact that the objects she is
targeting includes the innocent civilians who are protected under Geneva Convention as well as
International Humanitarian law as her state was a signatory of Geneva Convention at the time of
war. Thus, she is individually liable for crimes against humanity (war crimes). Her actus rea
comprised of Mens rea as she was against the followers of Right Path as well as other religion
besides Dovaine faith.

Count 3
Anna is charged with war crime of violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture against persons taking no active part in the hostilities,
including members of armed forces who have laid down their arms and those placed hors de
combat by sickness, wounds, detention or any other cause under article 8(2)(c)(i).
It is humbly submitted before the Honorable International Criminal Court that that President Anna is
charged of committing war crime under article 8(2) C of Rome statute. All essential elements of crime
mentioned in the elements of crime document of Rome Statue are satisfied by her acts. As she was aware
of factual circumstances that established the existence of an armed conflict. Prosecution humbly
submitted that she clearly violated the customary international law and Article 3 of Geneva convention
1949. Her military left the WOR wounded and sick person untreated there and took their doctors to
Military bases. She is also responsible for commission of the crime under the command responsibility of
Article 28(A).

ADVANCED PLEADINGS

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Count 1
Anna is charged with the war crime of intentionally directing attacks against buildings dedicated to
religion, education, art, science or charitable purposes, historic monuments, hospitals and places
where the sick and wounded are collected, provided they are not military objectives under article
8(2)(e)(iv).

a. With respect to the attack on the Hill Temples of Bannut on 13 September 2021, on
the basis of individual criminal responsibility for committing, whether as an individual, jointly
with another or through another person under Article 25 (3)(a).

1.1) To commit any acts of hostility directed against Historical Monuments and
places of worship is prohibited under International Law.

To commit any acts of hostility directed against cultural objects and places of worship are
prohibited under Geneva Convention.1 The Hague Convention of 1954 for the Protection of
Cultural Property defines cultural property.2 The specific protection of such cultural property
is defined in particular.3 And being the signatory of World Heritage Convention every
country is bound to conserve not only the World Heritage sites situated on its territory, but
also to protect its national heritage.4 Hague convention of 1907 also proscribes the attack
resulting in the damage of such monumental sites.5 By committing this act Mrs. Anna has
violated the norm of International Law.6 Violation of this law is also punishable under the
statute of ICTY.7

1
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts (Protocol II), 8 June 1977, Article 16.
2
Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954. In
Article 1.
3
Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954. In
Article 4.
4
https://whc.unesco.org/en/convention/
5
Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the
Laws and Customs of War on Land. The Hague, 18 October 1907.
6
Case Fact ¶ 14,15
7
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc.
S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on 25 May 1993, U.N. Doc.
S/RES/827 (1993), Article 3(d)

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1.2) The elements of crime under the Elements of Crime document of Rome
Statute for this count are satisfied.
Provided in the elements of the crime of the ICC, all five are being intended to the current
scenario. Following are the elements of the crime.

1.2.1) The perpetrator directed an attack.

"Attacks" means acts of violence against the adversary, whether in offence or in defense.8 It is
evident from the facts that a UNESCO World Heritage Site, the oldest landmark in Dovariene,
the Hill Temples of Bannut9 were attacked and even completely destroyed10 by Dovariene army.
All it was done on the direction of the perpetrator Mrs. Anna.11

1.2.2) The object of the attack was one or more buildings dedicated to religion, education,
art, science or charitable purposes, historic monuments, hospitals or places where the sick
and wounded are collected, which were not military objectives.

The object of the offence has to be specially protected.12 As per the case law of the ICTY,
religious institutions are protected as long as they meet the special requirement of “cultural
heritage of people”, meaning “objects whose value transcends geographical boundaries, and
which are unique in character and are intimately associated with the history and culture of a
people”13. It is beyond doubt to consider the Hill Temples of Bannut as the “Cultural heritage of
people” for the facts of the case are crystal clear in this regard by mentioning them (Hill Temples
of Bannut) a UNESCO World Heritage Site.14 Additionally, these institutions must “clearly be
identified as dedicated to religion or education”.15 This requirement is also fulfilled according to
the case facts. “It is a serious violation of international humanitarian law to attack civilian
buildings, it is a crime of even greater seriousness to direct an attack on an especially protected
site.”16

8
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 8 June 1977, Article 49(1)
9
Case Fact ¶ 4
10
Case Fact ¶ 15
11
Case Fact ¶ 14
12
Commentary on Law of International Criminal Court by Mark Klamberg
13
(Prosecutor v. Martić (Case No. IT-95-11), ICTY T. Ch. Judgment of 12 June 2007, para. 97).
14
Case Fact ¶ 4
15
(Prosecutor v. Blaškić (Case No. IT-95-14), ICTY T. Ch. Judgment of 3 March 2000, para. 185).
16
Jokić Sentencing Judgement, paras 45 and 53.

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Furthermore, the object of the offence cannot be a military objective. Military objectives are
defined as the objects “which by their nature, location, purpose or use make 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”. 17 As established
earlier, the Hill Temples purely qualify as the World Heritage Site. It does not qualify as the
Military Objective neither by the nature nor location and nor by its purpose, nor did their
destruction offer any military advantage. On the contrary the destruction created many other
civilian casualties.

And even if it is being so used “all preventive measures should be taken to terminate their use in
support of the military effort (warnings, injunctions etc.) in order to prevent the destruction or
damage of cultural objects. However, if it is decided to attack anyway, the principle of
proportionality should be respected, which means that the damage should not be excessive in
relation to the concrete and direct military advantage anticipated, and all the precautions required
by Article 5718 should be taken.

1.2.3) The perpetrator intended such building or buildings dedicated to religion, education,
art, science or charitable purposes, historic monuments, hospitals or places where the sick
and wounded are collected, which were not military objectives, to be the object of the
attack.

The perpetrator has to fulfil the mental elements of the underlying offence at hand. Namely, the
attack against the protected institutions has to be committed “intentionally”. 19 As per the
approach adopted by travaux préparatoires;

a) ICC Elements of the Crime require that the perpetrator must have known about the
protected status of the institution.

As per Kordiḉ accused intends by his acts to cause the destruction or damage of institutions
dedicated to religion or education.20

17
Article 52(3) Additional Protocol I
18
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 8 June 1977.
19
Commentary on Law of International Criminal Court by Mark Klamberg
20
ICTY, Kordić and Čerkez Trial Judgment, 26 February 2001, para. 361

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It is evident from the case facts that Mrs. Anna had the sound knowledge of the protected
status of the Hill Temples,21 (and she intended by her acts to cause the destruction or damage
of institutions dedicated to religion or education) the religious advisor even warned her by
taking the factual circumstances into her knowledge that the Hill Temples were the Centre of
the Right Path Faith and spiritual pillars of Right Path believers.22

In case of ICTY it was held that “the perpetrator does not have to make a legal assessment of
the protected status of the institutions. He merely needs to know the factual circumstances,
which give the object a special status.”23

b) the perpetrator must have knowledge of the institution’s failure to qualify as a military
objective, and nevertheless carry out the attack.24

Furthermore, President Anna advocated the radical religious policies.25 Anna declared the
Dovaine Faith religion of the state.26 She made it compulsory to chew Gadoom Root at every
parliamentary meeting.27 From these instances one can easily infer her intentions of hostility and
animosity towards other faiths.

1.2.4) The conduct took place in the context of and was associated with an armed conflict
not of an international character.

Pre-Trial Chamber in the Mbarushimana case held that the "conflicts of a non-international
character" applies to armed conflicts that take place in the territory of a state, when there is a
protracted armed conflict between government authorities and organized armed groups or
between such groups.28 In the Lubanga case, the Pre-trial Chamber said; "conflicts not of an
international character" for the purposes of article 8(2)(e) of the Statute, and provides that: It
applied to armed conflicts that take place in the territory of a State when there is protracted
armed conflict between governmental authorities and organized armed group or between such
groups'.29 In case at hand the prosecution is of view that the armed conflict that took place in
21
Case Fact ¶ 4
22
Case Fact ¶ 14
23
Prosecutor v. Blaškić (Case No. IT-95-14), ICTY T. Ch. Judgment of 3 March 2000, para. 185).
24
For detail, see 1.2.2 ¶ 3
25
Case Fact ¶ 7
26
Case Fact ¶ 8
27
Case Fact ¶ 7
28
ICC, Mbarushimana Decision on confirmation of charges, 16 December 2011, para. 103.
29
ICC, Lubanga Decision on confirmation of charges, 29 January 2007, para. 229

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territory of Dovariene was between the Anna’s government and the organized armed group
WOR.

1.2.5) The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.

To constitute a war crime, it is not necessary for the perpetrator to make a correct legal
evaluation of the armed conflict. Merely knowing the factual circumstances is enough. 30 Tadic´
case states that “armed conflict exists whenever there is a resort to armed force between States or
protracted armed violence between governmental authorities and organized armed groups or
between such groups within a State”.31 Since there is a protracted armed conflict between Anna’s
government and WOR and during the battle when Anna was interviewed, she said “the
Bannutyes will get what’s coming to them! Our forces will lay waste to their city and hit them
where it hurts.”32 And at the time of attacking the Hill Temples Anna and her forces were aware
of the existence of armed conflict.

1.3) Liability under individual criminal responsibility.

“Täter hinter dem Täter” i.e. perpetrator behind the perpetrator.33 The underlying rationale of
this model of criminal responsibility is that the perpetrator behind the perpetrator is responsible
because he controls the will of the direct perpetrator.34 Prosecution believes that the direct
perpetrator (General Kamyani) instructed his forces to attract the Hill Temples of Bannut 35 as per
the directions of order signed36 by the indirect but the principal perpetrator37 (Mrs. Anna). The
accused, Mrs. Anna, the President of Dovariene is also Commander-in-Chief of the armed
forces. Higher is the rank greater that person’s responsibility will be.

As articulated by the District Court of Jerusalem in Edichmann Trial:38

30
Prosecutor v. Dario Kordic & Mario Kerkez (Judgement) IT-95-14/2-A, A Ch (17 December 2004) ¶ 311
31
Tadic´ ICTY A. Ch. 2.10.1995 para. 70
32
Case Fact ¶12
33
ROXIN, C., "Straftaten im Rahmen organisatorischer Machtapparate", Goltdammer's Archiv für
Strafrecht (\963\pp. 193-207
34
Katanga and ngudjolo icc pt. ch. i 30.9.2008 paras. 490–4
35
Case Fact ¶ 15
36
Case Fact ¶ 15
37
Katanga and ngudjolo icc pt. ch. i 30.9.2008 paras. 499
38
Jerusalem District Court, Th Attorney General v. Eichmann, Case No. 40/60, Judgement 36
I.L.R. 5-14, 18-276, 12 December 1961, para 197.

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“The degree of responsibility increases as we draw further away from the man who
uses the fatal instruments with his own hands and reach the higher ranks of command.”39

Count 2
Anna is charged with the war crime of intentionally directing attacks against the civilian population
as such or against individual civilians not taking direct part in hostilities under article 8(2)(e)(i).

a. With respect to the series of bombings on Luckty’s suburbs in August and September 2021,
including the airstrike on the morning of 23 September 2021, (Count 2, on the basis of
individual criminal responsibility for ordering, soliciting or inducing (Article 25 (3)(b)):

2.0) WITH RESPECT TO ANNA INDUCING MILITARY TO COMMIT WAR

CRIMES IN THE SUBURBS OF LUCKTY:

MATERIAL ELEMENTS SATISFYING ARTICLE 8(2)(e)(i):

2.1) The elements of Crime under the Elements of Crime document of Rome Statute for
this count are satisfied.

In order to constitute war crime under Article 8(2)(e)(i) of the Rome Statute, certain
conditions are to be fulfilled. These are given below:

2.1.1) The perpetrator directed an attack:

President Anna stated on national television on 18 August: “There is no mercy for any
Warriors of Right fighters. They are simply terrorists.” She added that Dovariene military
had been authorized to “attack any person, group or building that is found to support the
Warriors of Right in any way”. She directly authorized the military to attack anyone at hand
on mere suspicion of supporting WOR.

2.1.2 The perpetrator was aware of the factual circumstances that established that
protected status of civilians:

At the time of bombing of Luckty Anna was well aware of the fact that Luckty is densely
populated area with many innocent civilians protected under Article 13(1)(2) of Geneva
Convention additional protocol II40 as well as International Humanitarian Law. As statement
39
Ibid.
40
Article 13 of Geneva convention additional protocol - Protection of the civilian population

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of facts clearly demonstrates “Luckty is a densely populated city of 4.2 million inhabitants
(2021).” Three bombs were dropped one after the other on the innocent people of Luckty that
led to large number of causalities, which were obvious. One of the civilian described the
merciless attack to BBC in following words:

“I heard a very loud explosion and tried to gather my family to run out of the house. But
before we were able to escape, there came two more explosions. All the glass windows of my
house were shattered, my daughter was hit by a heavy debris from a nearby building and still
in critical condition in the Right Path Hospital. My wife and two sons were also injured by
the fallen plaster.” Plus, the answer of Anna to International media “To achieve peace, war
is inevitable, so is loss of life”, clearly shows that she was well aware of the factual
circumstances of the attack.

2.1.3) The perpetrator was aware of factual circumstances that established the existence
of an armed conflict:

In a recent holding on the elements of grave breaches of the Geneva Convention under Article 2
of the ICTY Statute, the Naletilić and Martinović 41Appeals Chamber offered the rationale for
including knowledge of the nature of the conflict as an element of these crimes which are totally
satisfied in the case of Anna. Thus, in our case, Anna was well aware of the factual
circumstances that established this armed conflict. It was established due to the extremist views
and policies of her government to curb religious freedom. She converted a Parliamentary
democracy into Autocracy or Dictatorship. This infuriated the followers of other religions and
democratic republic of Dovariene.

2.2) Liability under individual command responsibility

1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from
military operations. To give effect to this protection, the following rules shall be observed in all circumstances.

2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of
violence the primary purpose of which is to spread terror among the civilian population are prohibited.
41
The principle of individual guilt requires that an accused can only be convicted for a crime if his Mens rea
comprises the actus reus of the crime. To convict him without proving that he knew of the facts that were necessary
to make his conduct a crime is to deny him his entitlement to the presumption of innocence. The specific required
mental state will vary, of course, depending on the crime and the mode of liability. But the core principle is the
same: for a conduct to entail criminal liability, it must be possible for an individual to determine ex-ante, based on
the facts available to him, that the conduct is criminal. At a minimum, then, to convict an accused of a crime, he
must have had knowledge of the facts that made his or her conduct criminal.

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In the case of Kayishema and Ruzindana42 the trial chamber held that individual criminal
responsibility only requires that “any one of the modes of participation delineated in Article 7(1)
of ICTY Statute43” “[E]ach of the modes of participation may, independently, give rise to
criminal responsibility.” In a case at hand, it is clearly evident from the undisputable facts that
President Anna who was also the commander in chief of the armed forces ordered her army to
attack every such place or people merely on suspicion of supporting WOR.44
2..2.1) Her actus rea comprised of Mens rea:

Thus above discussion clearly states that the actus rea of Anna comprises the Mens rea as she
was well aware of the facts that Suburbs of Luckty are densely populated with Right Path
followers whom she hated a lot. Thus she clearly wanted to spread terror amongst the followers
of Right Path and other minorities to keep them from joining resistance movements against her
government by becoming a part of WOR. She wanted to restore her power in disguise of armed
conflict in state. The judgment of Appeals Chamber of ICC in the case law of Gallic case (IT-98-
29)45 explains the individual criminal liability of Anna.

2.4) CASE LAWS SUPPORTING OUR ARGUMENTS:

2.4.1) (ICC-01/04-01/10-465-Red) THE PROSECUTOR V. CALLIXTE

MBARUSHIMANA46.

In the view of the Chamber, the war crime of attacking civilians pursuant to Article 8(2)(e)(i) of
the Statute does not presuppose that the civilian population is the sole and exclusive target of the
attack. The crime may be perpetrated in any of the two following scenarios: (i) when individual
civilians not taking direct part in the hostilities or the civilian population are the sole target of or
individual civilians not taking direct part in the hostilities. The latter scenario must be the attack
or (ii) when the perpetrator launches the attack with two distinct specific aims: (a) a military
objective, within the meaning of articles 5147 and 5248 of the Protocol Additional to the Geneva
Conventions of 12 August 1949 ("the AP I"); and simultaneously, (b) the civilian population
42
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, paras. 193-97, 207
43
A person who planned, instigated, ordered, committed or otherwise aided and
abetted in the planning, preparation or execution of a crime referred to in articles 2
to 5 of the present Statute, shall be individually responsible for the crime.
44
Case Fact ¶ 17
45
https://casebook.icrc.org/case-study/icty-prosecutor-v-galic para 120
46
Para 142 of ICC judgement in ICC-01/04-01/10-465-
47
Article 51 - Protection of the civilian population
48
Article 52: General Protection of Civilian Objects

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distinguished from situations where, in violation of the principle of proportionality, a

disproportionate attack is intentionally launched with the specific aim of targeting a military
objective, with the awareness that incidental loss of life or injury to civilians will or may occur as
a result of such an attack. In such a case, the targeting of the civilian population is not the aim of
the attack but only an incidental consequence thereof.

2.4.2) Tadić (IT-94-1)49

A prohibited act committed as part of a crime against humanity, that is with an awareness that
the act formed part of a widespread or systematic attack on a civilian population, is, all else
being equal, a more serious offence than an ordinary war crime. This follows from the
requirement that crimes against humanity be committed on a widespread or systematic scale, the
quantity of the crimes having a qualitative impact on the nature of the offence which is seen as a
crime against more than just the victims themselves but against humanity as a whole. The Trial
Chamber see no reason to depart from this view.

2.4.3) Gallic case (IT-98-29) 50

The elements of individual criminal responsibility under Article 7(3) of the Statute are firmly
established by the jurisprudence of the Tribunal. Three conditions must be met before a superior
can be held responsible for the acts of his or her subordinates: (1) the existence of a superior-
subordinate relationship, (2) the superior knew or had reason to know that the subordinate was
about to commit such acts or had done so, and (3) the superior failed to take the necessary and
reasonable measures to prevent such acts or to punish the perpetrators. The prosecution is of
view that the Trial Record establishes that all three conditions have been met and conclude that
the Accused is guilty of the crimes of unlawful attacks against civilians, murder and inhumane
acts under Article 7(3) of the ICTY Statute.

COUNT 3

Anna is charged with war crime of violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture against persons taking no active part in the hostilities,

49
Para 73 in the sentencing judgement of trial chamber of ICTY Tadić (IT-94-1)

50
Para 120 of ICTY Judgment of Chamber of Appeals. (IT-98-29)

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including members of armed forces who have laid down their arms and those placed hors de
combat by sickness, wounds, detention or any other cause under article 8(2)(c)(i).

a. With respect to the transfer of medical personnel from Right Path Hospital from 24
September to 25 October 2021, (Count 3, on the basis of command responsibility (Article 28
(a)

3:1) War crime and Violence to life and person Constituted.

As mentioned in the facts, on the morning of 24 September, the Dovariene military forces
conducted an evacuation in the Right Path Hospital. 70 out of 100 doctors and nurses were
brought to Dovariene military bases, those left behind were mostly young and inexperienced. In
the consequences of this act several deaths were occurred. No medical facility had been given to
them even they had doctors in their own party but Military forces took them to the Dovariene
military bases.

It's an inhumane and violent act by forcing the doctors to work under them by leaving their other
individuals. Military forces personally forcing the doctors and committing violence against the
doctors, in the consequences of this act several deaths occurred.

It constituted under 8(2)(c)51 As in the case of an armed conflict not of an international

character, serious violations of article 3 common to the four Geneva Conventions, namely, any
of the following acts committed against persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention or any other cause:

1: Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and
Torture.

Article 8 (2) (c)

Elements52

1) The perpetrators killed one or more persons.

51
Rome Statue of International Criminal Court
52
Elements of crimes under international law by Gideon Boas, James L. Bischoff & Natalie L.
Reid

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2) Such person or persons were either hors de combat, or were civilians, medical personnel,
or religious personnel taking no active part in the hostilities.
3) The perpetrator was aware of the factual circumstances that established this status.
4) The conduct took place in the context of and was associated with an armed conflict not of
an international character.
5) The perpetrator was aware of factual circumstances that established the existence of an
armed conflict.

Murder of civilians and prisoners of war was included as a war crime.53 The World Health
Organization defines violence to life as: The intentional use of physical force or power,
threatened or actual, against oneself, another person, or against a group or community, that either
results in or has a high likelihood of resulting in injury, death, psychological harm, mal-
development or deprivation. So according to this definition forcing the doctors by military men
and left Right wing party untreated is considered violence to life and people.

Whatever the situation is the lives of all the person during armed conflict should be respected but
the Dovariene military forces didn’t consider the lives of and left them untreated even snatched
medical facility from them. As mentioned in the article 46 54 provides that, in occupied territory,
“the lives of persons” must be respected.

3:2) Violations of Customary International law occurred.

Article 3 reflects the customary international law’.55 Substantive provisions of Common Article
3 reflects elementary considerations of humanity that are binding regardless of the character of
an armed conflict (non-international or international). It reiterates that humane treatment is a
cornerstone of IHL and that adverse distinction in its application is prohibited. Common Article
356 prohibited violence to life, including murder, mutilation, cruel treatment, and torture, as well
as on the prohibition of outrages upon personal dignity.

53
Charter of the International Military Tribunal at Nuremberg.
54
Hague Convention 1907
55
The Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34-T.
56
Geneva Convention 1949

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So, the Dovariene military forces conducted an evacuation in the Right Path Hospital. 70 out of
100 doctors and nurses were brought to Dovariene military bases, those left behind were mostly
young and inexperienced. In the consequences of this act several deaths were occurred.57

It’s an inhumane and violent act by forcing the doctors to work under them and left their own
patients. For the purposes of this discussion, it must be stressed that the Court should imply that
the alleged underlying offence infringes a rule of customary or conventional international
humanitarian law.

3:3) President Anna David is liable for having the command responsibility of committing
crime.

According to Art 28(a)58

Responsibility of commanders and other superior;

“A military commander or person effectively acting as a military commander shall be criminally

responsible for crimes within the jurisdiction of the Court committed by forces under his or her
effective command and control, or effective authority and control as the case may be, as a result
of his or her failure to exercise control properly over such forces, where”

(i) That military commander or person either knew or, owing to the circumstances at the time,
should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.

President Anna was having the effective control and authority in the country. Control is defined
as “authority exercised by a commander over part of the activities of subordinate organizations,
or other organizations not normally under his command, which encompasses the responsibility
for implementing orders or directives.59 All or part of this authority may be transferred or
delegated. As she was also Commander-in-chief of the Army during the civil war and directed

57
Case Fact ¶ 23
58
Rome Statute of International Criminal Court
59
NATO glossary

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the orders to her subordinates. So Higher is the rank greater that person’s responsibility will be,
which is also mentioned in the District Court of Jerusalem in Edichmann Trial60

when Dovariene military forces conducted an evacuation in the Right Path Hospitals, the
president Anna should have known about the acts of the forces or she should have the knowledge
about the all acts of the forces who are going to commit war crime. “Knowledge” (of subordinate
crimes) is important ingredient of superior responsibility which means actual knowledge,
awareness. And ‘should have known’ constitute negligence.61

Let’s suppose she didn’t get the knowledge at exact time as unable to involve in the nitty gritty
matters having a lot of responsibilities to fulfil as president but after getting the knowledge about
war crime she didn’t fulfil her responsibilities. As mentioned in the fact the Doctors were
returned after one month later.62 On this she didn’t take any action. So all the crimes committed
by the subordinate authorities to Anna are considered to commit by Anna herself as she was the
commanding authority. As mentioned in the case: Prosecutor v. Ori´c, (June 30, 2006).

Section 9(1)63criminalizes a superior who “(a) intentionally permits the commission of such an
offence by a subordinate; or (b) intentionally fails to take measures, in so far as these are
necessary and can be expected from him, if one of his subordinates has committed or intends to
commit such an offence.

It is sufficient to specify to which group the perpetrator belonged and to prove that the accused
(superior) exercised effective control over that group. Liability of committing war crime is
imputed on Anna under the principle of command responsibility Art 28 (A).

60
Jerusalem District Court, The Attorney General v. Eichmann, Case No. 40/60,
61
Introduction to international Criminal law and procedure (Commentary)
62
Case Fact ¶ 22 to 24
63
The Dutch International Crimes Act of 9 June 2003

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Prayer
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this

Honorable Court be pleased to:

● Charges on President Anna David must be upheld.

● On the basis of these charges, the trial must be executed.

● Accused should remain in detention.

AND / OR
Pass any order, as it deems fit, in light of justice, equity and good conscience.

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