4 Defense

PROSECUTION vs. BILBO BAGGINS

February 2018

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 TABLE OF CONTENTS

INDEX OF AUTHORITIES --------------------------------------------------------------------- 3

STATEMENT OF FACTS ---------------------------------------------------------------------

SUMMARY OF PLEADINGS --------------------------------------------------------------------- 6

PRELIMINARY MATTERS --------------------------------------------------------------------- 7

PLEADINGS --------------------------------------------------------------- 7

I. GENERAL BAGGINS IS NOT GUILTY

FOR THE WAR CRIME OF MURDER, MUTILATION,
CRUEL TREATMENT AND TORTURE. --------------------------------------------- 7
II. GENERAL BAGGINS IS NOT GUILTY FOR
THE WAR CRIME OF ATTACKING CIVILIANS ----------------------------------- 8
III. GENERAL BAGGINS IS NOT GUILTY FOR THE
WAR CRIME OF EMPLOYING WEAPONS,
PROJECTIES OR MATERIALS OR METHODS
OF WARFARE LISTED IN THE ANNEX TO THE
STATUTE OF THE STATUTE OF THE ROME STATUTE. ------------------------ 12

CONCLUSION/PRAYER FOR RELIEF ----------------------------------------------------------- 14

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 INDEX OF AUTHORITIES

CASES

Katanga, ICC T. Ch. II, Judgement, ICC-01/04-01/07-3436, 7 March 2014, p. 786 ----------- 9
Prosecutor v. Bemba, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b), 15
June 2009, [358]-[359] (Bemba Confirmation Decision) ------------------------------------------ 9

STATUTES

ROME STATUTE OF THE INTERNATIONAL CRIMINAL

COURT, 2187 U.N.T.S. 90 ------------------------------------------------------------------------passim

TREATIES

Customary International Humanitarian Law ------------------------------------------------------passim

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 STATEMENT OF FACTS

The United Federation of Gondor is a wealthy and economically advanced country that
comprises of seven federated states. It is governed by a federal parliamentary system with the
Prime Minister as the head of the federal government while each state has its own assembly and
executive lead by a First Minister. The Gondor Armed Forces are led by the Chief of the Defense
Staff. General Bilbo Baggins was appointed Chief of Defense Staff by the Prime Minister. Upon
his appointment, the first task that he instituted was to modernize the GAF. Under his direction,
Gondor entered into a military cooperation agreement with Rohan, a close ally of Gondor. The
agreement provided for the furnishing of military weapons and equipments and would also
include enhanced cooperation in the field of information technology.

In exchange of all those, Rohan will be granted preferential treatment to such state
enterprises in the exploitation of natural resources of Umber, a state of Gondor situated in the
northern part of the country. The state is quite distinct socially, economically, and culturally
from the rest of the country. Its politics, society and culture is largely influenced by the Council
of Elders.

The trade and investment agreement entered into by Gondor and Rohan was one of the
elements that fueled resentment and the rise of nationalism in Umber. Umber’s Assembly
declared that Umber was seceding from Gondor and called for negotiations with the federal
government on the conditions of the secession. A demonstration was done to celebrate the
declaration. The Gondor government then declared a state of emergency imposing martial law.

Warrants of arrest were issued to several members of the Council of Elron and key news
outlets released news depicting the members of the Council of Elron as terrorist leaders seeking
to de-stabilize the whole country of Gondor. Thus, General Baggins tasked the GAF Intelligence
Command (INTELCOM) to locate the Elders which alerted the General of their presence in an
apartment building located in Heron, a small town in Mordor- a neighboring country. On 15
September 2012, General Baggins ordered a strike on the building as it was struck by a missile
launched from a UAV and was monitored through a video transmittal via a hovering drone. A
few minutes after the attack, 2 adults and a child climbed out of the rubble as emergency rescue

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services reached the premises. Upon the identification of one of the adults as an ‘Elder’, General
Baggins ordered an immediate second strike on the site.

The Prime Minister of Gondor, following a meeting with General Baggins on 1 October
2012, gave a media conference on their plans to end the terrorist attacks against their people. By
this time, GAF had gradually closed in on Colmer where a number of Umber sympathizers to
secession and self-determination were regrouped into forces establishing defensive positions.

On 11 October 2012, GAF took over a building sheltering a group of twelve (12) NF
militants composing of GAF dissident soldiers and officers. By the start of 2013 discussions
were initiated to resolve the political situation. After months of negotiation a settlement was
reached whereby Umber achieved limited autonomy and the TIA with Rohan was rescinded
while the Gondor government also agreed to drop all charges brought against surviving members
of the Council of Elron.

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 SUMMARY OF PLEADINGS

I. General Baggins is not guilty for the war crime of murder, mutilation, cruel treatment,
and torture under Article 8(2)(c)(i) of the Rome Statute.
II. General Baggins is not guilty for the war crime of attacking civilians under Article
8(2)(e)(i) of the Rome Statute.
III. General Baggins is not guilty for the war crime of employing weapons, projectiles or
materials or methods of warfare listed in the Annex to the Statute of the Rome
Statute.

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 PLEADINGS

COUNT 1: GENERAL BAGGINS IS NOT GUILTY FOR THE WAR CRIME OF

MURDER, MUTILATION, CRUEL TREATMENT AND TORTURE.

A.General Baggins did not commit any violence to life and person, in particular murder of
all kinds, mutilation, cruel treatment and torture.

Persons killed were neither hors de combat, or were civilians, medical personnel or
religious personnel, taking no active part in the hostilities.

The offenses listed in Article 8(2)(c) must be committed against persons taking no active
part in the hostilities and these include “members of armed forces who have laid down their arms
and those placed hors de combat by sickness, wounds, detention or any other cause”. As the
word “including” is used it means that this list is only illustrative. Indeed the Elements of Crime
refers to “persons [who are] either hors de combat, or […] civilians, medical personnel, or
religious personnel taking no active part in the hostilities”.1 A person hors de combat is:

a) anyone who is in the power of an adverse party;

b) anyone who is defenseless because of unconsciousness, shipwreck, wounds or

sickness; or

c) anyone who clearly expresses an intention to surrender; provided he or she obtains

from any hostile act and does not attempt to escape.2

Upon orders of General Baggins, the GAF launched a military offensive by the
deployment of a small electromagnetic pulse weapon over the armed forces defending the
outskirts of Colmer. The purpose was to disrupt electronic circuits in weapons, armored vehicles,
missile defense systems and other military computer systems being used by forward elements of

1
Elements of Crimes, Article 8, page 33; see also Katanga, ICC T. Ch. II, Judgment,
ICC-01/04-01/07-3436, 7 March 2014, p. 786.
2
Rule 47, Customary International Humanitarian Law

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the Umber forces. Contrary to the charge the attack was not directed to anyone who is
defenseless or who expresses an intention to surrender.

The Elements of Crime further refer to medical and religious personnel, the latter being
defined as “non-confessional non-combatant military personnel carrying out a similar function”.3
During the assault, six militants were killed and four seriously injured while three civilians were
caught in the crossfire.4 It is clear that there were no medical and religious personnel involved.

COUNT II. GENERAL BAGGINS IS NOT GUILTY FOR THE WAR CRIME OF
ATTACKING CIVILIANS

1. The Required Elements of Crime under Article 8 (2) (e) (i)5 are not satisfied.

The Elements of Crime under Article 8 (2) (e) (i) requires five elements, three of which are not
satisfied.

The very nature of war demands that there be difficult casualties. While it is abhorrent to
think of anyone who knowingly kill an innocent civilian, the fact of the matter is that terrorists
feel no compunction about doing the same. Terrorists already hide among innocents, thinking
they are safe, because the government of a country will go to any lengths possible to avoid
civilian casualties. So an attack may be considered to have been directed against a civilian
population if the civilian population was the 'primary rather than an incidental target of the
attack'.6

3
(Elements of Crimes, Article 8, footnote 56)
4
Facts, [23].
5
Elements of Crimes, Article 8

ICTY, Prosecutor v. Popovic, et.al. (“Sebrenica”), “Judgement”, IT-05-88-T, 10 June

6

2010, para. 753.

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1.1 Elements 2 is not satisfied as the perpetrator’s object of the attack were not the civilian
population as such or individual civilians not taking direct part in the hostilities.

The members of the Council of Elders who are terrorist leaders who seeks to takeover
federal authorities and de-stabilize the whole country of Gondor is hiding in an apartment
building that also housed ten families located in a small town in the country of Mordor. 7 The
Elders are regarded as the custodians of Umber history and culture and their influenced is so high
that they are regarded as the true leaders of their community.8 These terrorists need to be
captured or neutralized to put an end to the attacks in Gondor by the sympathizers of the Elders.9
Unavoidable civilian casualties are lawful in order to conduct operations out of military
necessity against valid military targets.10 In order to avoid excessive damages, military
commanders must consider the jus in bello proportionality requirement on protecting civilians
from the effects of lawful attacks.11 It requires distinction and directing attacks only against
military objectives,12 and feasible precautionary measures.13
Two tests should be satisfied for military objectives: 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.14

_______________________
7
Moot Problem, para. 20
8
Moot Problem, para. 17
9
Moot Problem, para. 16
10
Prosecutor v. Stanislav Galic, Trial Chamber 1, IT-98-29-T (5Dec2003) footnote 76.
11
Elements of Crime (EOC), footnote 36; API, Art. 51 (2).
12
API, Arts 48, 52 (1), and 57 (2) (a) (i)

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 General Baggins took into consideration the feasible precautions to minimize the
expected collateral damage.15 He sought legal advice from GAF legal advisers in the presence of
Rohan military advisers16 for feasible precautions as it is required in terms of the choice of
means and methods of attack, effective advance warning, and evacuation of civilian population.17
However, when element of surprise is necessary,18 the advance warning does not permit.19 An
advance warning of attack is required in order for the attack to be legal, unless circumstances do
not permit it.20 If the element of surprise is a necessity to achieve the military objectives, 21
issuing an advance warning is legally unnecessary and self-defeating.22

1.2 Element 3 is not satisfied as the perpetrator has no intention for the civilian population
as such or individual civilians not taking direct part in hostilities to be the object of the
attack.
Attacks on civilians or civilian objects, as a crime falling within the scope of Article 3 of
the Statute, is, as to actus reus, an attack directed against a civilian population or individual
civilians, or civilian objects, causing death and/or serious injury within the civilian population, or
damage to the civilian objects. As regards mens rea, such an attack must have been conducted

_______________________
13
Ibid, Arts 57 and 58.
14
Ibid, Arts 51 and 52 (a)
15
API, Arts 58 (c)
16
Moot Problem, para. 17
17
API, Arts 57 (2) (a) (ii), (c) and 58 (a) (c).
18
Ibid.
19
Ibid, Art 57 (2) (c); Amended Protocol II to the CCW, Art. 3 (ii).
20
Additional Protocol I, Art. (57) (2) (a) (ii).
21
Commentary on the Additional Protocols, ICRC, para. 2223; CIHL footnote 86.
22
Ibid, Art. 57 (2) (c); Amended Protocol II to the CCW, Art 3 (II).

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with the intent of making the civilian population or individual civilians, or civilian objects, the
object of the attack.23 Clearly this did not happen in 15th of September 2012. The target of the
attack were the members of the Council of Elders hiding in an apartment building in a small
town called Heron in the country of Mordor.24 Including a suspect linked to an attack against a
police station in Gondor’s capital city that had claimed a dozen victims.25

1.3 Element 4 is not satisfied as the conduct did not take place in the context of and was
associated with an armed conflict not of an international character.

Gondor and Mordor are State parties to several treaties, one of which is the 1949 Geneva
Conventions. Common Article 2 to the Geneva Conventions of 1949 states that: "In addition to
the provisions which shall be implemented in peacetime, the present Convention shall apply to
all cases of declared war or of any other armed conflict which may arise between two or more of
the High Contracting Parties, even if the state of war is not recognized by one of them. The
Convention shall also apply to all cases of partial or total occupation of the territory of a High
Contracting Party, even if the said occupation meets with no armed resistance".
According to this provision, International Armed Conflicts (IAC) are those which oppose
"High Contracting Parties", meaning States. An IAC occurs when one or more States have
recourse to armed force against another State, regardless of the reasons or the intensity of this
confrontation.
One may think that Mordor still holds grudge with Gondor even though their war has
ended way back 2007. Warrants of arrest were issued on March 2012 to the members of the
Council of Elders, for treason and of conspiring with foreign organizations to overthrow the
democratically elected government of Gondor26, who went into hiding. And on September 2012,
____________________
23
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgment (TC), (31Jan2005), para. 284.
24
Moot Problem, para. 17
25
Moot Problem, para. 18.
26
Moot Problem, para. 9

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there was a confirmed report of the presence of the members of the Council of Elders in a small
town in Mordor. The Government of Mordor should have alerted its borders of possible entry of
these considered terrorists in their country and yet they kept quiet. Mordor had knowingly harbor
terrorists, been unlawfully assisting a terrorist organization and being complicit in the terrorist
attacks taking place in Gondor.27
International Humanitarian Law requires that two criteria be met for there to be a non-
international armed conflict: the armed groups involved must show a minimum degree of
organization and the armed confrontations must reach a minimum level of intensity. There is a
high degree of organization with the regrouped forces in Umber sympathetic to secession,
comprising of police and civil defense forces as well as dissident soldiers and officers of the
GAF referred as “NF Militants” under the leadership of a “Armed Resistance Council” or
ARC.28 The ARC rejected the authority of the federal authorities in Umber and proclaimed to be
under the exclusive guidance of the Council of Elron. Several armed confrontations between
GAF and the NF militants took place, with casualties on both sides for months. The ARC took
control over Rohan and seized most military facilities and equipment within the borders of
29
Umber, control the anti-aircraft defense installations, and other attacks that surpassed the
minimum level of intensity of armed confrontations.

COUNT III. GENERAL BAGGINS IS NOT GUILTY FOR THE WAR CRIME OF
EMPLOYING WEAPONS, PROJECTILES OR MATERIALS OR METHODS OF
WARFARE LISTED IN THE ANNEX TO THE STATUTE OF THE STATUTE OF THE
ROME STATUTE

With respect to the campaign to regain control of Umber towns and cities in particular the
search sweep operations that took place on and around the 11th of October 2012 the GAF saw the

______________________
27
Ibid
28
Moot Problem, para. 10
29
Moot Problem, para. 11

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need to employ such arms and weapons in order to see to it that no pockets of resistance is left.
No official contrary practice was found with respect to either international or non-international
armed conflicts. However, several States have decided that for domestic law-enforcement
purposes, outside armed conflict, in particular where it is necessary to confront an armed person
in an urban environment or crowd of people, expanding bullets may be used by police to ensure
that the bullets used do not pass through the body of a suspect into another person and to increase
the chance that once hit, the suspect is instantly prevented from firing back.30

To particularly cite the provision, it clearly states “employing weapons, projectiles and
material and methods of warfare which are of a nature to cause superfluous injury…”. The
International Humanitarian Law defines the rules applicable on the methods of warfare as a
31
broad range of rules and procedures as to how such weapon is being used. However, on the
other hand, means of warfare would generally refer to the weapons being used.32 Thus, methods
of warfare might be misconstrued with means of warfare which, the latter, does not fall under the
purview of the provision.
The use of expanding bullets refers only to means of warfare as it generally refers to a
type of weapon being used. It does not specifically entail a particular method of warfare. A
distinction must be made in order to highlight the difference between weapons which are
inherently unlawful and the unlawful use of such weapons. As mentioned, “...poison is unlawful
in itself, as would be any weapon which would, by its very nature, be so imprecise that it would
inevitably cause indiscriminate damage… However, a weapon that can be used with precision
can also be abusively used against the civilian population. In this case, it is not the weapon which
is prohibited, but the method or the way in which it is used.” 33
_________________
30
Discussion on Rule 77, Customary IHL
31
Y. Sandoz et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the
Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff, Geneva 1987, §1957.
32
Ibid.
33
Ibid.

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 PRAYER FOR RELIEF

The Defense respectfully requests this Honourable Court to adjudge and declare that General
Bilbo Baggins is not criminally responsible under the Statute for war crimes under Article
8(2)(e)(i), Article 7(1)(a) and Article 25 (3) (b).

Respectfully submitted,
The Defense

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