1 Prosecution

Prosecutor v. Tony Gusman

October 2016

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 TABLE OF CONTENTS

I. STATEMENT OF FACTS 6

II. PRELIMINARY MATTER 11

III. SUMMARY OF PLEADINGS 11

A. TONY GUSMAN BEARS CRIMINAL RESPONSIBILITY FOR THE WAR CRIME

OF INTETNTIONALLY USING STARVATION AS A METHOD OF WARFARE

11

B. TONY GUSMAN IS CRIMINALLY RESPONSIBLE FOR THE WAR CRIME OF

INTENTIONALLY DIRECTING ATTACKS AGAINST THE CIVILIAN

POPULATION OR AGAINST INDIVIDUAL CIVILIANS NOT TAKING DIRECT

PART IN HOSTILITIES 11

C. TONY GUSMAN BEARS CRIMINAL RESPONSIBILITY FOR THE WAR CRIME OF

INTENTIONALLY LAUNCHING AN ATTACK CAUSING WIDESPREAD, LONG-TERM,

AND SEVERE DAMAGE TO THE NATURAL ENVIRONMENT 12

IV. PLEADINGS 12

A. COUNT 1: TONY GUSMAN BEARS CRIMINAL RESPONSIBILITY FOR THE

WAR CRIME OF INTETNTIONALLY USING STARVATION AS A METHOD OF

WARFARE 13

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 1. Tony Gusman, through the Military Administration, deprived civilians of

objects indispensable to their survival. 13

2.Tony Gusman intended to starve civilians of Yukule as a method of warfare.

13

3. The controlling of the goods entering the island, as well as the prohibition of

fishing beyond 6 nautical miles from the shore by the accused took place in the

context of and was associated with an international armed conflict. 14

4. Tony Gusman was aware of factual circumstances that established the existence of an

armed conflict. 14

B. COUNT 2: TONY GUSMAN IS CRIMINALLY RESPONSIBLE FOR THE WAR

CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST THE CIVILIAN

POPULATION OR AGAINST INDIVIDUAL CIVILIANS NOT TAKING DIRECT

PART IN HOSTILITIES. 14

1. Tony Gusman directed an attack. 15

2. Nirvana, the object of the attack, was a civilian population not taking direct part in the

hostilities. 15

3. The accused intended the civilian population as such or individual civilians not

taking direct part in hostilities to be the object of the attack. 16

4. The attack against Nirvana took place in the context of and was associated with

an international armed conflict. 16

5. Tony Gusman was aware of factual circumstances that established the existence

of an armed conflict. 16

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 C. TONY GUSMAN BEARS CRIMINAL RESPONSIBILITY FOR THE WAR CRIME

OF INTENTIONALLY LAUNCHING AN ATTACK CAUSING WIDESPREAD,

LONG-TERM, AND SEVERE DAMAGE TO THE NATURAL ENVIRONMENT

16

1. Tony Gusman launched an attack through opening of oil valves and causing the

explosion of oil tanks. 17

2. The attack caused widespread, long-term and severe damage to the natural

environment and that such death, injury or damage would be of such an extent as

to be clearly excessive in relation to the concrete and direct overall military

advantage anticipated. 17

3. The accused knew that the attack would cause widespread, long-term and

severe damage to the natural environment and that such death, injury or damage

would be of such an extent as to be clearly excessive in relation to the concrete

and direct overall military advantage anticipated. 17

4. The conduct took place in the context of and was associated with an

international armed conflict, and; Tony Gusman was aware of factual circumstances that

established the existence of an armed conflict. 18

V. PRAYER 19

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 INDEX OF AUTHORITIES

Statutes

Rome Statute 13, 15, 17

Art. 54 Additional Protocol I 13

Art. 55 Additional Protocol I 17

Other Authorities

ICC Elements of Crimes 11, 15, 17

Rulings

Prosecutor vs. Jean Paul Akayesu 11, 13, 15

Prosecutor vs. Dusko Tadic 15

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I. STATEMENT OF FACTS

The Republic of Astro was ruled by a military government led by General George Ayana

and Admiral Tony Gusman, with General Ayana acting as the countrys President. During this

period, Admiral Gusman chaired the powerful Crisis Military Commission, which acted as the de

facto government of the country. Admiral Gusman also acted as Commander-in-chief of the

Armed Forces.

The Military Administration, led by Tony Gusman, limited the activities of local

fishermen to 6 nautical miles offshore. Astron vessels routinely patrolled the Yukulean coastline

to deter fishermen from going beyond the prescribed limit. In one incident, a boat was fired at 5

nautical miles from shore, resulting in the death of a fisherman. Aside from that, control over the

importation of goods was also tightened. Admiral Gusman announced that only goods

exclusively used for civilian purposes would be allowed into Yukule. At Port Solferino, ships

bringing goods to Yukule had their shipload approved or rejected on a case-by-case basis, with

no reasons given. Items allowed in were always changing and the Military Administration

refused to publish any list of controlled goods. Importation of raw materials and manufactured

goods was reduced, and prices soared.

After being unloaded from ships, the goods were brought by road to different areas of the

island. Repair work was slow due to scarcity of materials. In some instances, wheelbarrows and

carts had to be used to deliver goods and materials. Transport of food and basic necessities was

long- delayed in some areas. Inspection at check-points slowed down further the distribution of

food and medicine. Captain Ardent, a local commander in Yukule, claimed that we monitor

supplies closely to prevent them from being diverted to terrorists, who must be pressed to

surrender.
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 Casa Radio International, a radio station based in Casa, published a report leaked from

the Astron Ministry of Health. The report contained data presenting the minimum intake of

calories necessary to keep Yukule local population alive. According to Casa Radio International,

the Military Administration used the data to estimate the quantity of food products allowed in

and distributed to the different areas of Yukule. The Administrations officials later stated that

such calculation was intended to better implement import controls. Yukule Watch, an Astro-based

human-rights group, said that in fact the food distributed to the local population was short of

meeting the estimated needs.

The Yukulean fishermen needed to sail at least 12 to 15 nautical miles from shore to catch

larger shoals. By September 2009, the total catch had been halved since the implementation of

the control measures on fishing in 2008, and was still decreasing. Local food production had

been reduced by a third of its past level because of the restriction on the import of fertilizers and

pesticides. The local newspaper Peppermint Express warned that with the stark reality in local

agriculture and fishing sectors, the population would almost entirely depend on food import to

survive the autumn and winter of 2009.

In February 2010, the International Committee of the Red Cross (ICRC) noted that

hospitals lacked medical stores and were not able to maintain their equipment or make necessary

repairs. Islanders posted numerous complaints about their poor living conditions, the lack of

medical services and medicines on various social media sites. In some cases, especially in remote

areas, a small ailment could develop into serious illness for lack of treatment.

On 30th May 2010, the Free Yukule Movement announced on its website and various

social media that it had chartered a Casa registered merchant vessel, Nirvana, to deliver

humanitarian packages to Yukule.

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 On 1st July 2010, Nirvana left a Bereton port for Yukule. In addition to the 30 armed

Sphinx guards, on board were also 200 passengers, among them members of the Movement and

a number of human rights activists and anti-Astro protestors recruited through the internet. Most

passengers were Bereton citizens, but some were from Astro, Casa and ten other countries.

Nirvana had 2,000 tons of cargo on board, mostly food, medicine and basic necessities.

Commander Hanson, the person tasked by Gusman to lead the operation ordered to open

fire at the Nirvana. After one hour of intense exchange of fire, the Sphinx guards surrendered

after running out of ammunition. In the early morning of 21st July 2010, the marines took control

over the ship. The wounded were given medical care. In the melee, 30 activists and 15 Sphinx

guards were killed, 60 injured, including guards and passengers. Among the Astron marines, 10

were killed and 15 injured, 5 of them in serious condition. The Nirvana was escorted to Port

Solferino, and all Nirvana crew, guards and passengers were put into Solferinos central prison.

One of the released victims said that the Astron soldiers were shooting indiscriminately

at innocent civilians on Nirvana. She claimed she was holding a banner and peacefully

protesting with some other passengers, when bullets came at their direction and one of the

protestors was shot dead right in front of her. A priest from Casa said bullets were flying around

and at some point he could no longer tell whether they were from the Astrons or the protestors.

In March 2011, the Expert Panel produced a preliminary report which concluded that the

Astron commando had used excessive force. The Panel found that all casualties suffered by the

activists were caused by gunshots, some of them at point-blank range or from behind. According

to the report, renowned journalist Phil Dumphy was video recording the events when shot in the

head. An engineer was shot at when trying to cut off the light system of the vessel. Several others

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were injured by gunfire when waving knives at the soldiers. Some of the Sphinx guards were

killed or wounded when reaching out to the lifeboats of Nirvana.

On 20th September 2010, the commander of the Astron fleet, Rear Admiral Freedman,

reported to Admiral Gusman that he was unable to stop the advancement of the Bereton Navy.

Admiral Gusman told Freedman to resort to all resources available to stall the enemy.

On 24th September 2010, Captain Ardent, after consulting Rear Admiral Freedman,

ordered to open the valves of three oil terminals on the western side of the island, while Astros

ships moved eastward towards the Astron coast. Three oil tankers also started to discharge oil

into the same sea area.

The Bereton naval forces were slowed down by the oil slicks offshore western Yukule,

but on 15th October, the Bereton forces managed to land on the south beaches of Yukule. The

positions in the southern part of Yukule were poorly defended, so the Bereton forces rapidly

started to make their way inland towards Port Solferino.

On 16th October 2010, Admiral Gusman told the Astron paper Hashtag Daily that the

Bereton attacks would only lead to the destruction of Yukule. Admiral Gusman told Captain

Ardent to take all measures possible to stop the advancement of the Bereton forces. On the

same day, large oil storage tanks on a site by the sea near Port Solferino burst into huge fires

(approx. 60 million litres of oil were stored on the site).

Port Solferino and the surrounding areas were awash in smoke, soot and ash. A large

amount of the oil found its way to Port Solferino waterways and into the sea. As the site was

surrounded by landmine fields, access was difficult and dangerous for firefighters and civil

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defence personnel. It took 10 days to get the fires under control, by then, several million litres of

oil had already been released into the sea.

In January 2011, United Nations Environment Programme (UNEP) pointed out that the

oil spills could have a major effect on the massive reef habitation offshore Yukule. According to

UNEP, certain habitations of coral reefs were extremely susceptible to hydro carbon pollution.

Thousands of birds in the region were found dead. Marine turtles, which use the Yukule

Archipelago as nesting sites, were also in endangered.

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II. PRELIMINARY MATTER

There exists an international armed conflict.

Armed conflict, in which peoples are fighting against colonial domination and alien

occupation and against racist regimes in the exercise of their right of self-determination, are

classified as International Armed Conflict, bound by the provisions of IHL.1 It occurs 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.2

The organized group of Bretan police and armed men were formed in order to resist the

occupation of the Astran Force in Yukule.3

III. SUMMARY OF PLEADINGS

A. TONY GUSMAN BEARS CRIMINAL RESPONSIBILITY FOR THE

WAR CRIME OF INTETNTIONALLY USING STARVATION AS A METHOD OF

WARFARE

There is sufficient evidence to establish substantial grounds that Tony Gusman is

criminally responsible for the war crime of intentionally using starvation as a method of

warfare. The act of controlling the importation of goods and prohibiting the fishing

beyond 6 nautical miles from the shore amount to starvation.

1 Art. 1 Additional Protocol I;

2 Prosecutor vs. Dusko Tadic

3 Facts of the Case, par. 7

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 B. TONY GUSMAN IS CRIMINALLY RESPONSIBLE FOR THE WAR

CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST THE

CIVILIAN POPULATION OR AGAINST INDIVIDUAL CIVILIANS NOT

TAKING DIRECT PART IN HOSTILITIES

There is sufficient evidence to establish substantial grounds that Admiral Tony

Gusman is criminally responsible for the war crime of directing an attack against the

civilian population who are not taking direct part in the hostilities. Gusman is liable for

the acts of his subordinate for failure to supervise and failure to ensure that the acts

committed by his subordinate do not constitute violation of the provision of the IHL.

C. TONY GUSMAN BEARS CRIMINAL RESPONSIBILITY FOR THE

WAR CRIME OF INTENTIONALLY LAUNCHING AN ATTACK CAUSING

WIDESPREAD, LONG-TERM, AND SEVERE DAMAGE TO THE NATURAL

ENVIRONMENT

There is sufficient evidence to establish substantial grounds that Admiral Gusman

ordered to take all possible measures to drive the enemy away, and for the subsequent

failure to supervise the steps taken by his subordinates which had adverse effects to the

natural environment.

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IV. PLEADINGS

A. COUNT 1: TONY GUSMAN BEARS CRIMINAL RESPONSIBILITY FOR

THE WAR CRIME OF INTETNTIONALLY USING STARVATION AS A METHOD OF

WARFARE

All of the requisite elements in the war crime of starvation as a method of warfare4 under

Article 8(2)(b)(xxv) and Article 25 (3)(a) the Rome Statute are present based on the facts of the

case.

1. Tony Gusman, through the Military Administration, deprived civilians of

objects indispensable to their survival.

Starvation is a prohibited method of warfare.5 This includes attacking, destroying,

removing or rendering useless objects indispensable to the survival of the civilian

population.6 Tony Gusmans act of controlling the quality and quantity of goods entering

Yukule7 and prohibiting fishing beyond five nautical miles from its shore8 constituted

starvation.

2. Tony Gusman intended to starve civilians of Yukule as a method of

warfare.

4 ICC Elements of Crimes

5 Art 54(1) Additional Protocol I

6 Art. 8(2)(b)(xxv); Art. 25 (3)(a), Rome Statute

7 Statement of Facts, par (11)

8 Statement of Facts, par (10)

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 The accuseds acts are based on the premise that their troops were intending to

invade Yukule9 and to gain military advantage over the resistance militia formed by the

members of the Breton armed and police forces.10

3. The controlling of the goods entering the island, as well as the prohibition

of fishing beyond 6 nautical miles from the shore by the accused took place in the

context of and was associated with an international armed conflict.

The circumstances surrounding the case indicate that there is an international

armed conflict between Astro and Breton, stemming from the formers occupation of the

is island of Yukule.11

4. Tony Gusman was aware of factual circumstances that established the

existence of an armed conflict.

The accused was the one who suggested that they take control of the Yukule

Archipelago.12 He was aware of the local resistance of Astros rule over Yukule.13

B. COUNT 2: TONY GUSMAN IS CRIMINALLY RESPONSIBLE FOR THE

WAR CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST THE

9 Facts of the Case, par 6

10 Ibid, par. 7

11 Ibid, par. 6

12 Ibid

13Ibid, par. 7

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CIVILIAN POPULATION OR AGAINST INDIVIDUAL CIVILIANS NOT TAKING

DIRECT PART IN HOSTILITIES.

All the component elements of directing attack against those not taking direct part in the

hostilities14 in Article 8(2)(b)(i) and Article 28(a) of the Rome Statute are present in the case.

1. Tony Gusman directed an attack.

The accused, through his subordinate Commander Hanson, who was tasked to

lead the operation15 directed an attack against Nirvana.16

2. Nirvana, the object of the attack, was a civilian population not taking

direct part in the hostilities.

Civilian population includes non-civilians such as military forces or those who

have previously borne arms in a conflict since it does not necessarily deprive the

population of its civilian character.17 The ship contained 200 passengers, and 30 Sphinx

guards. 18 It is predominantly civilian in nature, as required.19 Also, the reason for the

ships entering the island is to give food, medical supplies, and basic necessities to the

people who are affected of the control measures being observed by Astros rule.20

14 ICC Elements of Crimes

15 Facts of the Case, par. 24

16Ibid, par. 28

17 Prosecutor vs. Dusko Tadic

18 Facts of the Case, par 23

19Prosecutor vs. Jean Paul Akayesu

20 Facts of the Case, par 23

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 3. The accused intended the civilian population as such or individual civilians

not taking direct part in hostilities to be the object of the attack.

Based on the facts of the case, there was indiscriminate firing against the civilians

onboard the Nirvana, causing the death of 30 civilians and injuring 60.21

4. The attack against Nirvana took place in the context of and was associated

with an international armed conflict.

The attack took place at the time of armed conflict which was taking place in the

Yukule island, with armed men guarding the coasts and ports of entry.

5. Tony Gusman was aware of factual circumstances that established the

existence of an armed conflict.

The accused was the one who suggested that they take control of the Yukule

Archipelago.22 He was aware of the local resistance of Astros rule over Yukule.23

C. TONY GUSMAN BEARS CRIMINAL RESPONSIBILITY FOR THE WAR CRIME

OF INTENTIONALLY LAUNCHING AN ATTACK CAUSING WIDESPREAD, LONG-

TERM, AND SEVERE DAMAGE TO THE NATURAL ENVIRONMENT

21 Ibid, par. 28

22 Ibid, par. 6

23 Ibid, par. 7

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 The elements of the war crime of intentionally launching an attack in the knowledge that

such attack will cause widespread, long-term and severe damage to the natural environment24,

under Article 8(2)(b)(iv) and Article 25(3)(b) are all present in the case.

1. Tony Gusman launched an attack through opening of oil valves25 and

causing the explosion of oil tanks.26

Care shall be taken in warfare to protect the natural environment against, long-

term, widespread and severe damage. This protection includes a prohibition on the use of

methods or means of warfare which are intended or may be expected to cause such

damage to the natural environment and thereby to prejudice the health or survival of the

population.27 In the case, the opening of valves and the explosion of oil tanks constitute

an attack since it caused immediate harm to the marine environment and to the people

who rely on fishing for survival.

2. The attack caused widespread, long-term and severe damage to the natural

environment and that such death, injury or damage would be of such an extent as to

be clearly excessive in relation to the concrete and direct overall military advantage

anticipated.

The oil spill and the oil fire was made on the shore of the Yukule Island. This has

produced a massive impact to the natural environment. As a matter of fact, the United

24 ICC Elements of Crimes

25 Supra, par. 37

26 Supra, par. 39

27 Article 55 (1), Additional Protocol I

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 Nations Environment Programme (UNEP) pointed out that the oil spills could have a

major effect on the reef habitation offshore Yukule. According to UNEP, some habitations

of coral reefs were extremely susceptible to hydro carbon pollution. Thousands of birds

in the archipelago were found dead. Marine turtles also became endangered.28 This is

obviously excessive as opposed to the military advantage ought to be gained over the

enemy.

3. The accused knew that the attack would cause widespread, long-term and

severe damage to the natural environment and that such death, injury or damage

would be of such an extent as to be clearly excessive in relation to the concrete and

direct overall military advantage anticipated.

Stated in facts, Tony Gusman ordered that they exercise the possible measures in

order to gain military advantage. His statement does not provide for any limit, hence, the

action of his subordinates.29

4. The conduct took place in the context of and was associated with an

international armed conflict, and; Tony Gusman was aware of factual circumstances

that established the existence of an armed conflict.

As earlier stated, Admiral Tony Gusman ordered the taking of all possible

measures. This is in the context of the international armed conflict between the State

parties.30

28 Facts of the Case, par 41

29 Ibid, par 39

30 Ibid
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 PRAYER

It is respectfully prayed for the ICC to confirm the charges against Tony Gusman.

Respectfully submitted,

The Prosecution

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