II. GEN.

BALDON ESTENZIC IS NOT CRIMINALLY RESPONSIBLE UNDER

INTERNATIONAL LAW.
A. Gen. Baldon Estenzic is not criminally responsible as a military superior for the
attack carried out by the Abrean trainees.
1. Abrean forces were not acting on behalf of Gen. Baldon Estenzic or the State of
Rathanka
Article 4 of the Articles on State Responsibility of the International Law
Commission provides that the conduct of any State organ shall be considered an act of
that State under international law, whether the organ exercises legislative, executive,
judicial or any other functions. A state organ is any entity which has that status in
accordance with the internal law of the State.1
Three tests have been established by the ICTY for determining whether, in an
armed conflict which is prima facie internal, armed forces may be regarded as acting on
behalf of another state. These tests differ depending on the nature of the entity being
considered. First is the test of over-all control. The test applies to armed forces, militias or
paramilitary units acting as de facto organs of a foreign state. The requisite control exists
when the state has a role in organizing, coordinating or planning the military actions of the
military group, in addition no financing, training and equipping or providing operational
support to that group. Second test is the test of de facto state organs. It applies to a single
private individual or group which is not militarily organized. It is necessary to ascertain
that specific instructions concerning the commission of that particular act has been issued
by the state to the individual or group. Alternatively, it must be established that the
unlawful act had been publicly endorsed or approved ex post facto by that state. The third
test is the test of individuals acting in collusion with State authorities. It applies to private
1

Article 4, International Law Commission, Articles on State Responsibility

individuals who are assimilated to State organs on account of their actual behavior within
the structure of a State, regardless of the existence of State instructions.2
In totality, in order to demonstrate that they acted on behalf of another state, it
must be proved that they acted within the framework of, or in connection with, armed
forces, or in collusion with state authorities. The issue here is not the degree of control
by the State but the behavior of the individual.3
The respondent submits that Abrean forces were not acting on behalf of Rathanka
nor under the command of Gov. Estenzic. Gov. Estenzic did not have over all control
over the Abrean forces. There was no showing that the Abrean forces were acting as de
facto organs of Rathanka nor it was alleged and shown the state has a role in organizing,
coordinating, and planning the actions of the military group. Secondly, Abrean forces
failed the test of being considered de facto organs. Gen. Baldon Estenzic only acted in
his official capacity as an agent of Rathanka for the security aid program. There was no
showing that specific instructions concerning the commission of that particular act has
been issued by the state to the individual or neither group nor it was established that the
unlawful act had been publicly endorsed or approved ex post facto by that state or
Rathanka.
2. A commander or a superior cannot be held responsible if he did not know or had
no reason to know of the crime to be committed or had been committed by his
subordinates.
In order to invoke criminal responsibility under ICTY Statute Article 7(3)
(identical to ICTR Statute Article 6(3)) on the basis of superior responsibility three
elements must be satisfied: a) the existence of a superior-subordinate relationship
between the accused as superior and the perpetrator of the crime as subordinate; b) the
2
3

War Crimes. International Criminal Law and Practice Training Materials. p. 21

supra. 2

superior knew or had reason to know that the crime was about to be or had been
committed; and c) that the superior had failed to take necessary and reasonable measures
to prevent the criminal acts or punish the perpetrator thereof. 4 This system was utilized in
the case of Prosecutor v Aleksovski (2000). It was declared that for a person to be held
responsible under command responsibility for an international crime, the prosecutor must
prove the elements provided above.5
A superiors actual knowledge, in terms of awareness that his subordinates were
about to commit or have committed crimes, cannot be presumed. The reason to know
determination does not require the superior to have actually acquainted himself with the
information in his possession, nor that would the information compel the conclusion of
the existence of crimes. It is sufficient that the information was available to him and that
it indicated a need for additional investigation in order to ascertain whether offenses were
being committed or about to be committed by subordinates.6
In the instant case, there was no evidence or allegation that Gen. Estenzic had any
reason to know that the attack was about to be committed or had just been committed.
Firstly, Gen. Estenzic cannot be presumed to have knowledge that Abrean armies started
arming themselves and will launch an attack to the MMC. Secondly, there is no evidence
to support that Gen. Estenzic has any reason to believe that Abrean armies are not in
favor of the mining operations and will take a huge step to attack the mining facilities. It
must be noted that the previous conflicts between Abravanel and Abreans is about land
disputes over territorial claims. The issue on environmental hazard caused by minings has
4

Mode of Liability: Superior Responsibility. International Criminal Law and Practice Training
Materials. p. 4
5
Abdul Malek, Mohammad Saidul Islam, The Extend of Criminal Responsibilities of a Superior
for the Commission of Offenses by the Subordinates, Journal of Law, Policy and Globalization.
Vol. 16 (2013) p. 35
6
p. 10-11 supra. 4

not been proven to be a cause for any armed conflict between the two groups. Also, the
State Abravanel and the Abrean forces had a peace treaty though signing of an armistice
in the year 2000. It was only roughly after two years of mining operation of MMC or
about 15 years after (2015) such peace treaty, the attack of Abrean Forces on MMC took
place. Gov. Estenzic could not have any reason to know or to expect that after 15 years of
peace, the Abrean forces shall inadvertently attack MMC which is within Abravanel
territory. Lastly, the identity of the fighters that composed the Abrean forces that attacked
MMC was not specified. That is, it was not stated whether the forces were composed of
only those Abreans within the Abravanel side or even those of Abreans living within the
Rathanka territory. With that, the probability that at least a few of the Abreans fighters are
from the Abravanel side, their participation in the provoked attack is beyond knowledge
or control of Gov. Estenzic.
Therefore, Gov. Estenzic has no knowledge be it actual or constructive that a
crime is about to be committed or had been committed and he is not criminally
responsible thereto.
3. A superior who did not tolerate any crime of subordinates does not make him
criminally responsible for such crimes.
In 1944 for instance, it was declared that a superior who tolerated the criminal
acts of his subordinates is responsible as an accomplice. Tolerated implies that, to be held
responsible, the superior actually knew about the crimes and consciously decided not to
take action to prevent or repress them. 7
There was no evidence that Gen. Estenzic indeed knew about the plan to attack of
the Abreans. With that, he could not have prevented or repressed them. He is therefore
not responsible for the crime of the subordinates.

p. 36 supra. 5

4. The acts of Abrean trainees are not attributable to General Estenzic nor to the
Republic of Rathanka for the lack of effective control.
One of the elements provided under ICTY Statute Article 7(3) (identical to ICTR
Statute Article 6(3)) on the basis of superior responsibility is that there must be a
superior-subordinate relationship between the superior and the perpetrator of the crime.
One criterion to prove such existence of relationship is that, the superior has effective
control over the persons committing the offense. Effective control is the material ability
to prevent or repress the commission of crimes or to submit the matter to the competent
authorities for investigation and prosecution. The ICC has followed ICTY jurisprudence
that substantial influence is not enough.8
Under Article 8 of the Articles on State Responsibility of the International Law
Commission, the conduct of a group of persons shall only be considered as an act of a
state under international law if they are in fact acting on the instructions of, or under the
direction or control of the State in carrying out the conduct. In the Hadzihasonovic case, a
senior officer with no effective control over the foreign forces was not held liable for the
crimes committed.9Moreover, the Court in Nicaragua vs. US confirmed that a general
situation of dependence and support would be insufficient to justify attribution of the
conduct to the State.10
In the Hadzihasonovic case, the appeals chamber found that the accused, a
senior officer of the Army of Bosnia and Herzegovina, had no effective control over the
foreign El Mujahedin forces operating in the same area as the Bosnian forces. The trial
chamber had based its finding on three indicia of effective control: a) the power to give
8

p. 17 supra. 4
Hadzihasonovic
10
Pronto, Arnold and Wood, Michael, The International Law Commission 1999-2009: Volume
IV: Treaties, Final Draft Articles, and other materials, Oxford University Press, 2010, ISBN 9780-19-957897-9, p. 171.
9

orders to El Mujahedin detachment and have them executed; b) the conduct of combat
operations involving El Mujahedin detachment; and c) the absence of any other authority
over the El Mujahedin detachment.11
Considering this criteria in this case, the respondent submits that he power to give
orders and have them followed is an indicia of effective control, but there is no sufficient
evidence to be relied on to establish existence of effective control of Gov. Estenzic over
the Abrean armies. Secondly, lthough the Abreans cooperated with RSF under Gov.
Estenzic, the Abrean armies maintained a significant degree of independence, which
signifies that the accused had no effective control. Thirdly, effective control cannot be
established by process of elimination. The absence of any other authority over the Abrean
amies in no way implies that Gen. Estenzic exercised effective control in this case.
In this case, the provision of weapons and training was aimed to help the Abreans
govern themselves. Rathanka was merely acting in a collaborative or supportive capacity.
Hence, the state had no direct control over the Abreans consistent with the Article 1 of
International Convention on Civil and Political Rights on self-determination. 12 Moreover,
no evidence on the record proves that the destruction of the Meightois Mining by the
Abreans was under the direct control or knowledge of either Gen. Estenzic or Rathanka.
In totality, Gov. Estenzic had no effective control over the Abrean armies, and
therefore he is not criminally responsible for crimes committed by the Abrean armies.
B. General Baldon Estenzic did not commit a war crime under the Geneva Convention.
1. Gen. Baldon Estenzic did not commit a war crime under the Geneva Convention
because he was not criminally responsible on the first place. (try nato ne rephrase

)
Gov. Baldon Estenzics actions were within the authority given to him and were
merely limited to providing support and training for the Abreans without exercising direct
11

p. 9-10 supra. 4
Article 1 of ICCPR

12

control over them. The Abrean trainees were not part of the Rathanka Security Forces and
were only nominally under the command of Gen. Estenzic 13 to help the Abreans govern
themselves.
In the instant case, no proof was presented that would indicate that Gen. Estenzic
had knowledge nor effective control about the attack on the Meightois Mining
Corporation by the Abrean Trainees. Without the knowledge nor effective control, it
cannot be said that Gen. Estenzic has violated any of the crimes against person or
property in the Geneva Convention. Moreover, the training and help provided by
Rathanka through the security aid program headed by Gen. Estenzic, is within the right of
the state of Rathanka to provide since the major portion of the Greater Appala area was
under their territorial jurisdiction, though autonomy has been granted to the Abreans.
Helping the Abreans to govern themselves is not a violation of international law, more so
a war crime.
2. There is no grave violation of Geneva Convention amounting to a war crime
when there is no existence of any armed conflict
Under the ICTY, there are two separate categories of war crimes; grave breaches
of the Geneva Conventions, under Article 2 of the ICTY Statute, and violations of laws or
customs of war, under Article 3. Under the ICTY Statute Article 2: Grave breaches of the
Geneva Conventions of 1949, The International Tribunal shall have the power to
prosecute persons committing or ordering to be committed grave breaches of the Geneva
Conventions of 12 August 1949, namely the following acts against persons or property
protected under the provisions of the relevant Geneva Conventions: a) willful killing; b)
torture or inhuman treatment, including biological experiments; c) willfully causing great
suffering or serious injury to body or health; d) extensive destruction and appropriation of
13

R. pp. 17

property, not justified by military necessity and carried out unlawfully and wantonly; e)
compelling a prisoner of war or a civilian to serve in the forces of a hostile power; f)
willfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
and g) unlawful deportation or transfer or unlawful confinement of a civilian; and h)
taking civilians as hostages.14
The following must be established for an offence to be subject to prosecution as a
grave breach under Article 2 of the ICTY Statue: a) the existence of an armed conflict; b)
the armed conflict was international in nature; c) a nexus between the alleged crimes and
the armed conflict; and d) the victims of the alleged crimes were protected persons
under the Geneva Conventions.15
Under the ICTY Statute Article 3, violations of laws or customs of war are: a)
employment of poisonous weapons or other weapons calculated to cause unnecessary
suffering; b) wanton destruction of cities, towns or villages, or devastation not justified
by military necessity; c) attack, or bombardment, by whatever means, of undefended
towns, villages, dwellings, or buildings; d) seizure of, destruction or willful damage done
to institutions dedicated to religion, charity and education, the arts and sciences, historic
monuments and works of art and science; and e) plunder of public or private property.
The application of Article 3 of the ICTY Statute requires a determination that a state of
armed conflict existed at the time of the commission of the crime and of the existence of
a nexus between the alleged crimes and the armed conflict.16
Taking both Articles 2 and 3 of the ICTY Statute together, the fundamental
requirement of war crimes is that the crimes occurred during an armed conflict. The
conflict must either be international (for the purposes of the grave breach provisions) or
14

p. 13 supra. 2
p. 14 supra. 2
16
p. 15 supra. 2
15

non-international in character (for the purposes of AP II for instance). An international

armed conflict has been defined as resort to armed force between States. A noninternational armed conflict has been defined as protracted armed violence between
governmental authorities and organized armed groups or between non-governmental
armed groups within a State. An armed conflict can become a mixed conflict which is
both international and non-international in character if another state intervenes with
troops or some of the participants in an internal conflict act on behalf of another State.17
There was no showing that during the attack of Abrean army on MMC, there was
an on-going armed conflict whether international, non-international, or mixed. It must be
noted that in year 2000, Abrean war leaders and the President of Abravanel signed an
armistice. Simply stated, the state of armed conflict continues until a general conclusion
of peace is reached, or in the case of internal armed conflict, until a peaceful settlement is
achieved. As there has been no armed conflict between Abravanel and Abrean forces,
there was no violation of war crimes under the Geneva Conventions.

17

p. 18 supra. 2