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Original: English
PUBLIC DOCUMENT
WRITTEN SUBMISSIONS ON BEHALF OF THE PROSECUTION
THE PROSECUTOR
TABLE OF CONTENTS
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Brg. Zachesu caused the death of one or more persons as part of a widespread
Brg. Zachesu killed civilians in furtherance of State policy and with full
knowledge..........................................................................................................................4
II.
BRIGADIER ZACHESU MEETS THE THRESHOLD FOR WAR CRIMES AND CAN
BE HELD GUILTY OF CHARGES UNDER ART. 8 (2) (c) (i) OF THE ROME STATUTE..4
(A.) Killed is also construed to mean, caused the death of..........................................5
(B.)
The conduct took place in the context of and was associated with an armed
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Elements under Art. 7 (1) (i) read with Art. 30 and Art. 28...................................12
Armed Conflict.................................................................................................................18
PRAYER..................................................................................................................................20
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And both Rodinga and Zawalu are parties to the ICC statute1
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Whether Brigadier Zachesu be found guilty for Crimes against humanity, for
killing civilians on the night of 16 th April 2012 at Rukama, under Art. 7(1)(a) of
II.
III.
Rome Statue;
Whether Brigadier Vasvodina be found guilty for Crimes against humanity, for
enforced disappearance of captured mine employees and Rodingan paramilitary
IV.
forces during December 2011 strike, under Art. 7(1) (i) of the Rome Statute;
Whether Brigadier Vasvodina be found guilty for War Crimes, for launching
attacks on industries in Rekht city that resulted in widespread, long-term and
severe damage to the natural environment, under Art. 8 (2) (b) (iv) of the Rome
Statute.
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RNDP under the leadership of Mr. Ragoba, headed the freedom struggle. After
independence Mr. Ragoba became the first Prime Minister (PM). The main opposition party
is Rodinga Socialist Republican Party (hereinafter RSRP) headed by Mr. Sari Salania. The
constitution of Rodinga; did not provide for state governments, it provided for fundamental
rights to the people, emergency provisions and all executive powers of the government vested
with the PM, he has powers to declare and withdraw emergency.
(3.)
Enduring Federation: Our Right (EFOR), headed by elected leader Mr. Nasan
Aldolo advocated for rights of States to control their resources. Mr. Sari Salania and Nasan
Aldolo were arrested during peaceful protest in Tirsone. Mr. Pinto Alberto, Chief Editor of
The Morning, a reputed newspaper was also arrested on defamation charges.
(4.)
decided to declare Mr. Radula, son of Ragoba as PM. The next day, Mr. Radula declared
emergency extending to the whole of Rodinga. The forthcoming elections were suspended
and RSRP and EFOR banned. The workers of RSRP and EFOR who moved into dense areas
of forest came together to form Army for Democracy (hereinafter AFD) and engaged in
sustained low scale violence against government police and paramilitary forces.
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In 1995, AFD was declared terrorist organisation Mr. Salania, Mr. Aldolo and Mr.
Alberto were declared joint presidents of AFD after their jailbreak. AFD declared through
internet to fight for the establishment of federal democracy. State units were established and
they actively engaged in broadening their support and membership increase exponentially
and it re-established its operational branch under the leadership of Brigadier. Vasvodina.
(6.)
government buildings and installations in Sinsalu and Kambhatka. They captured gold mines
of Samchatka and Tikalu (in Kambhatka) and coalmines of Rasinia and Kaluma (in Sinsalu).
50 personnel of the Rodingan paramilitary and almost 50 employees that working in these
mines were capture. Subsequently, attempts by International Humanitarian Enforcement
Agency (IHEA) to establish communication links with AFD failed. However, in May 2012,
Brigadier (Brg.) Vasvodina informed the visiting officials of the IHEA that the captured
persons embraced AFD ideals and were out in Rodinga to spread its ideals.
(7.)
A Government army operation to liberate AFD occupied coal mines was led by
Brigadier (Brg.) Zachesu. On their way they fought intense battles with AFD. When they
reached Rukama, a suburban town 50 kms from Rasinia, they were intensely confronted by
AFD fighters and were kept at bay for one week. Brigadier Zachesu lost 50 armed personnel
and her subordinates aerial dropped pamphlets on 15 April 2012 (Sunday) with instructions to
civilians to leave Rukama. On the night of 16th April 2012, the forces started heavy shelling
from tanks and also used drones and fighter jets to attack positions of AFD fighters. This
resulted in widespread destruction of civilian property and resulted in death of 100 civilians
and 50 AFD fighters. Brg. Zachesu entered Rukama with her forces next morning.
(8.)
They found more than 50 civilians hiding in natural caves, they were beaten, and their
bodies were subject to many kinds of inhuman invasions on their private organs. The
wounded AFD fighters and civilians were either murdered or left without any arrangement
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After the defeat at Rukama, AFD sought active support from the neighbouring
country of Zawalu, which shares borders with Sinsalu and Kambhatka. On 1 st May 2012,
Zawalu declared war against Rodinga sighting humanitarian commitment. On the 10 May
2012, the AFD and Zawaluan forces deployed personnel at the border of Rekht industrial city,
in Sanrolia. These industries are situated on the banks of Sanrole which was an important
source of drinking water for population of Rekht and other cities downstream. Industries were
heavily guarded by Government forces even though they were closed due to lack of raw
materials.
(10.)
movement to the Zawaluan forces and AFD fighters; provided that they would not attack the
industries of Rekht, and indicated possible environmental catastrophe if Rekht was attacked.
Brg. Vasvodina disregarded this and launched an attack during early hours of 12 May 2012,
which involved intense fighting with heavy arsenal from both sides, which lead to the leakage
of Agent X a dangerous chemical and damaged the whole ecology Sanrole beyond human
contemplation. All water purification plants downstream had to be closed and resulted in
acute water scarcity in Sanrolia, which resulted in causing the death of 100 people.
Environmental experts claimed it would take a minimum of a decade to wipe out the
chemicals from river cycle. Post UNSC resolution 206, a tripartite ceasefire agreement was
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II.
III.
IV.
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PLEADINGS
I.
WITH
KNOWLEDGE
IN
FURTHERANCE
OF
STATE
The Rodingan forces attacked Rukama on night of 16th April 2012. It is a widespread
attack against civilian population (A.) in furtherance of State policy with knowledge of the
acts. (B.)
(A.)
(2.)
Brg. Zachesu caused the death of one or more persons as part of a widespread
attack against the civilian population.
The term widespread refers to the large-scale nature of the attack and the number of
the victims.2 A crime may also be widespread by the cumulative effect of a series of
inhumane acts or the singular effect of an inhumane act of extraordinary magnitude. 3 The
death of 100 civilians, 50 AFD fighters and widespread destruction of civilian property, in the
local business center of Rukama on 16 April 2012 is undoubtedly an inhuman act of
extraordinary magnitude. The status of victims as civilians is one of the characteristics of a
crime against humanity.4 Art.50 (2) of Additional Protocol I (AP I) defines a civilian
2 Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23-T& IT-9623/1-A, Appeals Chamber Judgement, 12 June 2002, 94. (Intl Crim. Trib. for the Former
Yugoslavia Oct. 2,1995).
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On 15th April 2012, the subordinates of Brg. Zachesu dropped pamphlets on the city of
Rukama warning all civilians to evacuate before launching attack the very next day 7. The
prosecution asserts that this measure was extremely inadequate. A reference here can be made
4 Prosecutor v. Tihomir Blaskic, IT-95-14-A, Appeal Judgement, 29 July 2004, 107; (Intl
Crim. Trib. for the Former Yugoslavia Oct. 2,1995).
5 International Committee of the Red Cross (ICRC), 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, 1125 UNTS 3. Art. 50(2).
6 ICTY, Prosecutor V. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23-T& IT-96-23/1-T,
Trial Chamber Judgement, 22 February 2001, 425.
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to
presume
the
absence
of
civilians
at
the
relevant
locations. 10
8 Hague Regulations 1899 and 1907; Lieber Code; Brussels Declaration; Oxford Manual;
IDF Manual all commonly share the requirement of notification to local authorities (if the
situation permits) was effective advance warning.
9 UN Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, 25
September 2009, A/HRC/12/48, 536.
10 Israel Ministry of Foreign Affairs, The Operation In Gaza: Factual And Legal Aspects (Part V.C) 3666
(2009).
11 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996,
p. 226, International Court of Justice (ICJ), 8 July 1996.
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(8.)
Brg. Zachesu killed civilians in furtherance of State policy and with full
knowledge.
Brg. Zachesu being Rodingan Governments army brigadier her acts can be classified
as part of State policy, since she has used the State resources ranging from armed men, tanks,
12 Rule 8 of Customary IHL states In so far as objects are concerned, military objectives are limited to those
objects which by their nature, location, purpose or use make an effective contribution to military action and
whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage.
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(9.)As a result of the attacks on the night of 16th April 2012, Brg. Zachesu along with her
forces entered Rukama on the morning of 17th April 2012. They found more than 50 civilians
hiding in natural caves, who were then beaten, and their bodies were found to have been
subjected to many kinds of inhuman invasions on their private organs.
(10.) The common requirements or elements under Art.8 for all the underlying offences
here under are a) Such person or persons were either hors de combat, or were civilians,
medical personnel, or religious personnel taking no active part in the hostilities, and that the
perpetrator was aware of the factual circumstances that established this status. Also, that c)
the conduct took place in the context of and was associated with an armed conflict not of an
international character and that d) the perpetrator was aware of factual circumstances that
established the existence of an armed conflict.
(A.) Killed is also construed to mean, caused the death of
(11.) The perpetrator is charged under Art.8 (2) (c) (i) that includes of the underlying
offences of the war crime of cruel treatment and murder. The prosecution argues that the
inhuman physical invasions on the private organs of the civilians hiding in caves incited
severe physical pain and suffering upon those persons, satisfying the first element of Art.8 (2)
13 Pg. 9, Moot Problem.
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14Jean S. Pictet, ed., Commentary, IV Geneva Convention, 1949 (Geneva: ICRC, 1958), pg. 222.
15 Prosecutor V Zejnil Delalic, Zdravko Mucic (aka Pavo), Hazim Delic and Esad Lando
(aka Zenga) (lebici Case), IT-96-21-A, Appeals Judgement, 20 February 2001, 318
(ICTY);
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18 Prosecutor v. Duko Tadi, IT-94-1-T, Trial Judgement, 7 May 1997, 562. (ICTY).
19 Prosecutor v. Ramush Haradinaj Idriz Balaj Lahi Brahimaj, IT-04-84bis-T, Retrial Judgement, 29 November
2012, 394. (ICTY).
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A crime against humanity within the meaning of Art. 7 of the Statute, the
attack consists of a course of conduct involving the multiple commission of acts directed
against the civilian population as a whole in this case coal and gold miners and not
against randomly selected individuals.21 The terms widespread and systematic are not
specifically defined in the Rome Statute.22
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28 Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 179; Kordic et al. (IT-9514/2-A), Judgement, 17 December 2004, para. 94.
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34 PTC-III Cote dIvoire Investigation Decision, para. 46. The Chamber identified a number
of factors which can be taken into account when determining the organization: a) whether
the group is under a responsible command, or has an established hierarchy; b) whether the
group possesses the means to carry out a widespread or systematic attack against a civilian
population; c) whether the group exercises control over part of the territory of the State; d)
whether the group directed its criminal activities against the civilian population as a primary
purpose; e) whether the group articulates, explicitly or otherwise, an intention to attack a
civilian population; and f) whether the group is part of a larger group, which fulfils some or
all of the abovementioned criteria.
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37 Ibid.
38 ICC-01/04-01/07-717, para. 401. See also ICTY, The Prosecutor v Kordic and Cerke:,
Case No. IT-95- 14/2-A. Appeals Judgment. 17 December 2004, para. 99; ICTY, The
Prosecutor v Elastic. Case No. IT-95-14- A, Appeals Judgment, 29 July 2004, para. 124;
ICTR, The Prosecutor v Semarca, Case No. ICTR-97-20-T, Trial Judgment, 15 May 2003,
para. 332.
39 International Convention for the Protection of All Persons from Enforced Disappearance,
20 December 2006.
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42 Art. 7(1) (a), ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 2187
U.N.T.S. 90, entered into force July 1, 2002.
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49 Ibid.
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51 Kupreskic et. al. (IT-95-16-T), Judgement, 14 January 2000 para. 550; Kordic et al. (IT95-14/2-T), Judgment, 26 February 2001, para. 178; Prosecutor v. Mrksic et al. (IT-95-13R61), Review of Indictment Pursuant to Rule 61, 3 April 1996, para. 30.
52 Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 102,410; Tadic (IT-94-1A), Judgment, 15 July 1999 para. 271; Kordic et al. (IT-95-14/2-A), Judgment, 17 December
2004, paras. 99-100; Prosecutor v. Limaj et al. (IT-03-66-T), Judgment, 30 November 2005,
para. 190.
54 Katanga et.al, N. 8, paras. 401-402, Also Bashir, para. 87, Bemba, para 88.
55 Kunarac et al., para. 102, Prosecutor v. Krnojelac (IT-97-27-T), Judgment, 15 March 2002,
para 59.
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(31.) The attack launched during early hours of 12th May 2012 did not have concrete and
direct overall military advantage (A.) and consequent result of widespread, long-term and
severe damage to the environment is a war crime under Art. 8(2) (b)(iv) (B.) during an
international armed conflict (C).
(A.)The Attack did not have concrete and direct overall military advantage and
caused widespread, long term and severe damage to environment.
(32.)
or defence.56 The attack was launched by Brg. Vasvodina during early hours of 12 th May,
201257 on industries of Rekht cities located in the border of Sanrolia and Kambhatka. 58 In
spite of warnings of environmental catastrophe from Govt. Rodinga and also they
declared their intention for uninterrupted movement to Zawaluan forces and AFD
56 Art. 49, International Committee of the Red Cross (ICRC), 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, 1125 UNTS 3.
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The expression concrete and direct overall military advantage has been
60 Art 52, International Committee of the Red Cross (ICRC), 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, 1125 UNTS 3.
61 Art 52(2), International Committee of the Red Cross (ICRC), 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, 1125 UNTS 3.
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It should also be noted that the expression concrete and direct means the
advantage concerned should be substantial and relatively close, and the advantages
which are hardly perceptible and those which would only appear in the long term should
be disregarded.64 According to Art. 57 (2)(b)
An attack should be cancelled or suspended if it becomes apparent that the objective is
not a military objective or is subject to special protection or that the attack may be
expected to cause incidental loss of civilian life, injury to civilians, damage to civilian
objects or a combination thereof, which would be excessive in relation to the concrete
and direct military advantage anticipated.65
(35.)It is prohibited to render useless objects indispensable such as drinking water
supplies.66 The use of methods which may be expected to cause long term damage to the
63 C. Pilloud and J.S. Pictet, Art. 51 in Y. Sandoz, C.Swinarski and B. Zimmermann (eds.),
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949 (ICRC, Martinus Nijhoff, Geneva, 1987), no. 1979.
65 Art. 57(2)(b), International Committee of the Red Cross (ICRC), 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, 1125 UNTS 3. (AP I).
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67 Art 55, International Committee of the Red Cross (ICRC), 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, 1125 UNTS 3.
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77 Art 85(3)(b), International Committee of the Red Cross (ICRC), 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, 1125 UNTS 3.
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PRAYER
Wherefore in light of the questions presented, arguments advanced and authorities cited, the
Prosecution respectfully requests this Court to adjudge and declare that:
I.
Brg. Zachesu be found guilty of crimes against humanity under Article 7(1)(a) and be
sentenced according to Art. 76 and penalty imposed as per Art. 77 of the Rome
II.
Statute.
Brg. Zachesu be found guilty of war crimes under Article 8(2) (c) (i) and be sentenced
III.
according to Art. 76 and penalty imposed as per Art. 77 of the Rome Statute.
Brg. Vasvodina be found guilty of crimes against humanity under Article 7()(i) and be
sentenced according to Art. 76 and penalty imposed as per Art. 77 of the Rome
IV.
Statute.
Brg. Vasvodina be found guilty of war crimes under Article 8(2) (b) (iv) and be
sentenced according to Art. 76 and penalty imposed as per Art. 77 of the Rome
Statute.
78 Art. 11, International Committee of the Red Cross (ICRC), 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, 1125 UNTS 3.
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