9th Red Cross International Humanitarian Law Moot (2011)

The Moot Problem

1. Background Information

1.1; RELEVANT PARTIES, PLACES AND THINGS:

Basia– continent containing Baseland and Outland.
Outland–independent state.
Baseland- independent state.
Dr Mary Brown – ICRC Delegate and Swiss national.
Colonel Joy- also Captain Joy – Baseland army officer.
Major Deadeye – Baseland artillery commander.
Luke Mali – Jutland civilian and prisoner of war.
Captain Bill Atway- Outland army officer and prisoner of war.
Sergeant Yule – member of Baseland army.
Leader Right – religious leader from Baseland.
Police Officer Harriot – Outland police officer.
Bill Headline –freelance international war correspondent.
Red Cross and Red Crescent Emblems- these are symbols
recognized and protected by international humanitarian law. The Red
Cross and Red Crescent emblems are placed against white
backgrounds and have come to represent the impartial humanitarian
assistance provided to those who suffer. The provisions of the Geneva
Conventions and the Additional Protocols establish that the Red Cross
and Red Crescent emblems are symbols protected by international law.
Red Crystal Emblem – The International Red Cross and Red
Crescent Movement, as well as States, now have three protective
emblems recognised under international law. A diplomatic conference
in December 2005 adopted the Third Additional Protocol to the Geneva
Conventions, creating the red crystal emblem to stand alongside the
Red Cross and Red Crescent. The Protocol entered into force on 14
January 2007.

IN THE INTERNATIONAL CRIMINAL COURT

PROSECUTOR v. JOY

1. INSTRUCTIONS TO TEAMS:

1.1;Teams acting for the Prosecution will be known as the “Prosecution”.

Teams acting for the Accused, Colonel Joy, will be known as the “Defence”.

1.2;Teams should confine themselves to the facts supplied. The facts are
entirely fictitious.

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1.3;Teams may be assisted by looking at case law of the International
Criminal Tribunals for the Former Yugoslavia and Rwanda, the Special Court
for Sierra Leone and the ICC, as well as relevant decisions of national courts.
If teams rely on decisions of national courts, these should be leading
decisions and teams should expect to be asked for copies of the headnote
and the portion of the transcript or judgment referred to in argument. It would
be advisable to have copies of the headnote and the section or part of the
judgement to be relied upon available for all judges in the moot in which the
team is competing in the event a judge asks to see this reference. Teams
should not hand anything to judges unless asked to by a judge.

1.4;The problem is not intended to raise questions of procedure before the

International Criminal Court. Procedural questions should be ignored.

1.5;The problem is not intended to raise questions regarding the admissibility

of the case under article 17 or 19 of the Statue of the ICC. Counsel shall
assume that the case is admissible.

1.6;Counsel should address questions relating to the jurisdiction of the ICC.

1.7;Counsel are advised to consider not only the Statute of the ICC, but also
the Elements of Crimes adopted under Article 9 of the Statute.

2. The Facts
2.1;Outland is the Eastern state of four that occupy the landmass known as
Basia.

The capital of Outland is the city of New Town. This city lies on the eastern
seaboard of Outland, and is located on one side of the River George. The city
is also a major trading port possessing a deep-water harbour. The second
major city is Gateway that is located on Outlands border with Baseland.

2.2;To the west of Outland is the neighbouring country Baseland.

2.3; Ethnically, Outland and Baseland are the same. There are however
significant religious and cultural differences. These differences have resulted
over time in the development of different cultural practices in regard to the
treatment of women and non-believers. Religious leaders in Baseland are
called ‘Leader’ and are very active in maintaining their role in Baseland and in
attempting to convert other men to the Baseland religion and customs.

2.4;The border between Outland and Baseland is mountainous and rich in

minerals. In the middle of the mountains lies a valley that has a river running
down its middle. The river is the border between Outland and Baseland.
Historically both Outland and Baseland have claimed the valley and over the
past fifty years several wars have been fought ending in stalemate. While the
area is sparsely populated recent geological surveys have suggested
significant mineral resources are located beneath the valley. The border city
of Gateway sits in the middle of the valley straddling the river. There are
several bridges and two fords. One ford is located several kilometres north of

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Gateway just past an industrial area and Outland military base, and the
second ford is located in the north of the valley. The main bridge is at
Gateway.

Gateway is an ancient city holding great historical, cultural and religious

significance to the citizens of Outland and Baseland. The city is also
considered a significant economic trading centre as it straddles historic
trading routes. Because of historical enmity both Outland and Baseland
maintain a battalion of soldiers on their respective sides of the border. Further
back in the mountains both sides have well maintained reinforced artillery
positions overlooking the city and surrounding valley.

2.5; Both Outland and Baseland have well trained armies. Both Outland and
Baseland ensure the hill and valley people on their respective sides of the
border are well armed and in the past have used them as guerrilla fighters
because of their historical fighting skills and enmity towards the other side.

2.6;The religious and cultural differences between Outland and Baseland

concern the role and function of women in society and the role of religious
leaders in politics. Outland is a secular society and accords equal rights to
women. Baseland allows religious leaders a significant role in politics and
considers women as less important than men. In Baseland women are
severely restricted in what they can do, where they can go and what they can
wear in public. The government of Baseland looks to its religious leaders for
advice on how society should function. Over time the religious advisors have
demonstrated their power by increasingly interpreting ancient religious texts to
favour a strict patriarchal dominance enforced by religious police. This now
means women are not allowed in public unless in the company of a male
member of their family and whilst in public women must wear a smock.
Females are not allowed to talk to males who are not members of their family.
Breaches of these rules are treated severely. Women visiting Baseland are
warned to show no skin below the neck, only travel with a male companion
and not to initiate conversation with Baseland males who may report
offenders to the religious police for punishment.

2.7;Each state has sent officers and soldiers to serve with the United Nations
on peace keeping missions in other parts of the world. Captain Joy served
with the United Nations peacekeeping forces in Crete, Rwanda and was
attached briefly to Australian Forces in East Timor. While in East Timor
Captain Joy was interviewed by Bill Headline, a freelance international war
correspondent:

Bill Headline: “Captain Joy, how are your soldiers fitting in?”
Captain Joy: “Well, many miss their religious leader but that is not necessarily
a bad thing for a while because they are all good men. It also
means they have to think more for themselves and this makes
better soldiers.”
Bill Headline: “What is your view on religion?”
Captain Joy: “I accept everybody has the right to choose their religious
beliefs.“

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Bill Headline: “Do you think religious leaders in Baseland have too much
power?”
Captain Joy: “That is not a question I can really help with as I am only a
soldier.”

2.8; In the first week of July 2008 a series of demonstrations and street fights
broke out in Gateway. This conflict arose because traders from Outland were
protesting over an increase in border taxes being applied by Baseland border
guards. In the resultant conflict a Baseland trader was killed and another three
were injured. Several commentators suggested the real reason was the
rumours of mineral wealth in the valley and these incidents were in fact an
attempt to provide a reason to seize Gateway as a prelude to controlling the
valley. Baseland authorities insisted Outland hand over those who were
responsible. Outland arrested two men and they were committed for trial. On
1 December 2008 these men were acquitted by an Outland court leading to
demonstrations along the border in and around Gateway.

2.9; Notwithstanding the growing conflict in Gateway the foreign ministers of

Outland and Baseland took the opportunity of meeting to discuss the
demonstrations while in Oslo on 3 December 2008 to sign the Convention on
Cluster Munitions. However, the talks produced no outcome. As the ministers
left Oslo on 5 December serious fighting had broken out in and around
Gateway with many people being injured and at least ten Baseland citizens
being shot by border guards as they attacked Outland citizens.

2.10;On 6 December 2008 Baseland withdraws its border guards from

Gateway and launches an artillery barrage at Outland artillery positions and at
key government and military buildings on the Outland side of the border in
Gateway. Over a twelve-hour period seven Outland buildings are destroyed
along with some fifty military and government personal being killed and
injured and about sixty civilians also killed and injured.

2.11; Outland protests the escalation and resultant deaths and injuries
warning Baseland that unless it ceases its artillery barrages immediately and
pays reparations war will be declared. Baseland responds with further artillery
barrages against Outland artillery positions.

2.12; On 9 December 2008 Baseland recalls all officers to active duties in

Baseland including those serving with the United Nations. Captain Joy returns
to take a senior position in the armed forces in the district around Baselands
side of the border including responsibility for Gateway.

2.13;Bill Headline reported that both Outland and Baseland were rushing
troops to the border regions. Furthermore, he reports that both sides have
made armed incursions into each other’s territory resulting in armed clashes
and seizing of opposing soldiers and civilians for interrogation that has
resulted in rumours of abuse. Over the months of December and January
soldiers on both sides are involved in increasingly bitter fighting with both
sides resulting in both sides holding many prisoners of war.

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2.14; On 15 December 2008 a Baseland army unit led by Captain Joy
attacked an Outland army unit inside Outland outside a small town called
Noble, north of Gateway. The Outland forces were outnumbered and
retreated into the town that was overrun by Baseland forces. Captain Joy
accepted the surrender of the Outland forces and ordered all soldiers and
towns people to assemble. Captain Joy directed all captured soldiers and any
men of military age be seized as prisoners of war because a search of
building revealed stocks of guns and ammunition that did not belong to the
Outland army. These men were loaded onto trucks to be transported to Camp
Q. When the local towns people protested, Captain Joy said:

“I understand your concern and once identities have been checked we

will release any men who are non-combatants, but we do not know, nor
have the time to make sure all those who look like non-combatants are
actually non-combatants and not soldiers who are in disguise. Some of
these men were in building that contained weapons so we need to
make sure they have not been taking part in hostilities.”

2.15;On 20 January 2009 the International Committee for the Red Cross
(ICRC) seeks access to prisoners of war being held by both Baseland and
Outland. Access is granted.

2.16; On 1 February 2009, ICRC delegation led by Dr Mary Brown is granted

access to POW Camp Q in Baseland. The delegation includes a Swiss
interpreter. This camp holds some 300 prisoners of war. Captain Joy is in
charge of the area in which the camp is located. Captain Joy escorts the
ICRC delegation to the camp, introduces them to the camp commander,
Lieutenant Zane and leaves. The delegation tours the camp which is divided
into two sections, one for those who will accept cultural and religious courses
for better rations and exercise regimes and those who will not accept such
sessions. Religious leaders from Baseland who espouse the benefits of
Baseland’s religion and cultural approach to life conduct these sessions.
Prisoners are encouraged to reconsider their way of living and to accept
Baseland politics and principles. Dr Brown is given unrestricted private access
to those detained but only allowed to interview one officer, Captain Bill Atway.
In this interview Captain Atway says:

“My name is Captain Bill Atway of the Outland armed forces. I was
captured six weeks ago at which time Lieutenant Zane and a Sergeant
Yule interviewed me with one of their religious/cultural advisors. When
it became obvious I was not interested in their cultural and religious
sessions I was sent to a different section of the prison with other
prisoners of war who have similar views to mine. There are not many of
us. We also have some civilians, farmers and local towns people from
Outland who were caught in the fighting and captured. Each day we
are subjected to three hours of religious instruction. We have to stand
and we get reduced rations until we agree to voluntarily participate in
the religious and cultural lessons. I think they are trying to get some of
my people to support Baseland when they are released back into

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 Outland. Many soldiers and nearly all civilians agree just for the extra
rations and exercise opportunities. I was also subjected to
waterboarding as they sought information about Outland armed forces.
I am surprised they let you talk to me, but maybe they have forgotten
that I was waterboarded because it was six weeks ago. I thought I was
going to drown. Otherwise we are not treated that badly. The reduced
rations are affecting our health and we are only fed once a day while
the others are given three meals a day. We are all allowed to write to
our families so long as we say we are being treated nicely, but I do not
think letters are delivered because I have been here six weeks and
have had no reply and have written six times. Non-believers like me
are kept in overcrowded cells, ten soldiers in about ten square meters
and only allowed thirty minutes exercise outside each day and we are
not allowed to communicate with other soldiers who have conformed. If
we do we are placed in solitary confinement for five days without food.
Two soldiers tried to escape early on but were shot. I do not know what
happened to their bodies. There are also a couple of officers who have
been taken away for interrogation and not returned. They were
Lieutenant Miller and Captain Dash. I am worried about my chances of
survival.”

Later, Dr Brown interviews a Luke Mali who says he is not a soldier but was a
farmer who, along with other males in his village, was caught in an armed
clash between Baseland and was taken prisoner by Baseland forces because
some Outland soldiers were found dead near his farm. Luke also says that he
has spoken to other non-combatants who were also rounded up in similar
circumstances by Baseland.

The delegation seek private talks with military commanders and government
ministers in Baseland and are assured no-one is subject to waterboarding,
cultural and religious lessons are voluntary and only seek to remind the
citizens of Outland of their common heritage with the citizens of Baseland.
Furthermore, letters from prisoners have been sent and any non-combatants
will be released once their identity can be confirmed. Captain Joy says:

“Baseland complies with the Geneva Conventions. Outland is the

problem, it is their slow response that is causing delays in processing
prisoners who claim to be non-combatants. We have to make sure they
are not fighters who will attack us. Furthermore, I will be ensuring all
officers in the Baseland army are reminded of their obligations under
the Geneva Convention and I hope the Outland armed forces will also
continue to comply with their international obligations.“

2.17; On 2 March 2009 an ICRC delegation led by Dr Brown again visits

Camp Q. Dr Brown is given access to all the prisoners she spoke to on 1
February except Bill Atway and Luke Mali. Lieutenant Zane says:

“Bill Atway died suddenly one night – our doctor said he had a heart
attack and here is a copy of the death certificate. We cremated his
body because there was no way we could send it back to Outland.

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 Here are his personal effects, you can take them to his family as we
have not been able to notify them of his death. Following your
representations Luke Mali along with other non-combatants was
released a couple of days ago and handed over to Outland authorities
during a ceasefire. Here are the photos. See Bill Headline was present
and wrote about the release in the International World Tribune.”

Dr Brown’s request to speak to the doctor who signed the death certificate is
refused because the doctor has been transferred to another unit.

2.18; During the second week of March 2009, the United Nations Secretary
General negotiates a ceasefire between Outland and Baseland. Negotiations
start for prisoner exchange. Local Red Cross personnel are given access to
most prisoner of war camps but not Camp Q to facilitate prisoner exchanges.
They are told Camp Q has been emptied with the prisoners distributed
amongst other camps because of security concerns.

2.19;After most prisoners have been exchanged Amnesty International locate

some prisoners from Camp Q and these prisoners say that as far as they are
aware everybody was moved out of Camp Q shortly after the last ICRC
delegation visited the camp. Several days later, Bill Headline in an article for
the Real Times of the World reports that the Camp Q no longer exists and
some of the former prisoners have been executed. In this article Bill Headline
also says he has interviewed a man who told him:

“…it happened so quickly, on 15 March, we were lined up on the

parade ground in the centre of the prison grounds, soldiers and
civilians who had accepted religious and cultural lessons on one side
and the small group of about 30 men on the other side. Lieutenant
Zane was in charge and seemed to be in a rush, as if someone was
expected because I remember seeing a vehicle drive up with some of
their religious leaders who seemed to be in a hurry. There were lorries
lined up along one side of the parade ground. It looked like some of us
were to be sent somewhere as these lorries had canvas covers over
their trays. The prison guards were all in front and behind us with the
lorries on one side. All of us, except the 30, were loaded on lorries and
we left. I remember looking back through a gap in the canvas top and
seeing the gates of the camp shut which was odd as the other soldiers
and civilians were still in the camp. I think I heard machine gun fire but I
cannot be sure. Anyway, I knew some of those prisoners and they
have vanished, no one knows what happened to them. I think they
were killed.”

2.20; Bill Headline writes a follow-up article in which he includes photos

showing destroyed Camp Q. He also includes extracts from a recent interview
with the prison commander Lieutenant Zane who says:

”Yes, the camp was destroyed in a riot by the last group of prisoners.
Some of my guards were killed and many injured and the prisoners
escaped. I think we might have caught some and if we did and I can

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 find them I will speak to Captain Joy about arranging for you interview
them. The story about the killing the prisoners is not true. Your source
is a liar and is trying to make us seem bad”.

2.21; The ceasefire collapses on 1 April 2009 and warfare again breaks out
between Baseland and Outland. The fighting is more intense extending well
into Outland and Baseland.

2.22;Refugees flee into adjoining countries. About three kilometres inside

Outland at the northern part of the valley border not far from the northern most
ford is Camp Z a refugee camp that has grown up round a long established
medical clinic. As the war has continued farmers and village people dislodged
by fighting have set up camp beside the clinic. These people include about
forty residents of Baseland who regularly cross the ford to seek medical
assistance. Outland has provided tents, several police officers and regular
food supplies to Camp Z. Two nurses staff the medical clinic and a doctor
visits twice a week to attend to more serious medical cases.

On 4 April 2009, Dr Mary Brown visits Camp Z with her Swiss interpreter. Dr
Mary Brown wears an ICRC badge around her neck. Whilst they are in the
camp shooting is heard and a small Outland armoured column drives past.
Some kilometres behind it can be seen dust raised by pursuing forces. One
Outland armoured vehicle turns off and heads to the camp asking if a doctor
is present as they have two badly wounded soldiers. Dr Brown offers to treat
them and they are unloaded and as the armoured vehicle starts to drive away
shells fired from the pursuing Baseland army hit it. Some of the shells land in
the refugee camp killing and injuring refugees.
Some minutes later Baseland army tanks stop and Captain Joy says:

Captain Joy: “I am sorry, I am in charge of this column and my men should

have been more careful, if we had known they were dropping off
wounded soldiers we would have let them go. Sergeant Yule
(who has just arrived) have your soldiers help Dr Brown get
the wounded into a tent and the dead together and follow me,
I have to try and catch that Outland armoured column.
Sergeant Yule: “But, Sir these are not our concern, they were helping the
enemy.”
Captain Joy: “You have your orders.”

2.23; Captain Joy leaves to rejoin his armoured column. Sergeant Yule orders
his troops to put the wounded in one tent and collect the dead. After Captain
Joy has left Leader Right emerges from Sergeant Yule’s vehicle and says:

Leader Right: “Sergeant Yule you know what is right, these are the enemy,
some of them are citizens from Baseland who have deserted,
they should be rounded up and we will take them back home.”

Senior police officer, Susan Harriot approaches Sergeant Yule and Leader
Right and says:

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Susan Harriot: “This is a refugee camp. There are no soldiers here. Please
leave us now, we will be alright.”
Leader Right: “How dare you speak to us, Sergeant round up the citizens
from Baseland, we will take them home. Drive everybody else
away.”

Soldiers began checking identity papers and those holding Baseland identity
papers were loaded onto vehicles including those who were wounded. Dr
Brown tries to provide some with medical assistance and convinces Sergeant
Yule to let her and her interpreter complete the medical treatment of the
injured who have been gathered in the clinic. While Dr Brown completes her
medical assistance soldiers drive everybody else away. After everybody has
been driven away soldiers check the buildings and tents some of which are
burnt. The Baseland citizens are unloaded from the trucks and lined up while
the injured, Dr Brown and her interpreter are dragged from the clinic.

Leader Right: “Those citizens have shamed us. They have deserted us,
they must be punished.”
Sergeant Yule: “Teach them a lesson, especially the two foreigners, when you
have finished kill them all.”

The soldiers beat and kill all of the men, women and children taken from the
camp. Dr Brown and her interpreter are raped and beaten. As they are shot
the interpreter falls on top of Dr Brown shielding her from further bullets.
Before the soldiers can collect all the bodies another armoured column of the
Outland army is seen approaching from the direction of Gateway. Sergeant
Yule orders his force to collect as many bodies as possible and leave. The
only bodies left are those around and on top of Dr Brown. The approaching
Outland armoured column fires at the Baseland forces that retreat across the
border returning fire. Some of the shells fired by Outland tanks land in and
around Camp Z. Dr Brown is later found unconscious and bleeding badly from
a gunshot wound. She is the only survivor.

2.24;Fighting continues but an air raid strike hits Baseland army headquarters
near Gateway killing and wounding many senior officers. The Prime Minister,
an uncle of Captain Joy, promotes him to Colonel Joy and places him in
charge of all Baseland soldiers in the Gateway region. The fighting for control
of Gateway and surrounding region intensifies.

2.25;In an attempt to help his soldiers control Gateway Colonel Joy orders
preparation be made for the use of rolling artillery barrages from the north
seeking to drive Outland armed forces and civilians away from that section of
the city so Baseland armed forces can gain a foothold. The northern part of
Gateway is considered very important because it contains a small airport next
to a large heavily reinforced military base, chemical factories and associated
industries making specialised metal and plastic products. However, many
workers also live in and around these industries.

2.26;On 20 April 2009 Colonel Joy’s artillery commander, Major Deadeye

briefs Baseland officers:

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 “The first two barrages will be light and move quickly across the
northern sector of Gateway with a time difference of three minutes. The
aim is to warn civilians so they can flee. We cannot wait any longer
because their artillery will target our positions and their troops will be
prepared. To confuse them we will also target the southern sector of
the city with similar rolling barrages. The chemical factory is just south
of the ford and the military camp is between the factory and Gateway. I
worked in the chemical factory many years ago. There was an accident
and one of the tanks was breached. The resultant chemical cloud
flowed along the ground at a height of about three to four metres. By
blowing up the chemical tanks this cloud will, with the prevailing
northerly wind, flow towards the military base blocking the defenders
view of our troops fording the river. It will give us a tactical military
advantage. But, back to the barrages.

After the first two barrages we will concentrate all available guns on the
northern sector. We have to overrun the military base otherwise the
attack will fail. The base is very heavily defended which is why we will
hit the chemical factory with the third artillery barrage and continue
rolling it across the northern sector so there will be maximum disruption.
These barrages along with the release of a chemical cloud that will be
carried over the base by the prevailing wind will make it difficult for the
defenders to see our soldiers approach. It must be co-ordinated
carefully with the army assault.”

Colonel Joy added:

“We must also be careful of their armed column stationed some 30

kilometres East of Gateway. This has Russian and American tanks and
armoured troop carriers. They will almost certainly try and reinforce the
military base with these forces so it is important we seize the base
before they arrive. We can slow them down by using our 155mm
cluster-type artillery. However, it must only be used to slow their
armoured column.”

2.27;At midday on 22 April 2009 the attack on Gateway begins. After the first
artillery barrage some civilians start to leave the northern sector of Gateway
but most retreat to their cellars thinking the shelling will stop after a while. The
third artillery barrage destroys the chemical tanks releasing a chemical cloud
that spreads over the military base and surrounding areas. In the following
fighting the military base is captured. One hundred Outland soldiers are killed
and several hundred wounded in the fighting together with one hundred
civilians killed and over several thousand injured, most suffering skin and
respiratory injuries from the chemical cloud. Outland counter-attacks with its
armoured column but is stopped when Baseland uses cluster-type artillery.
Over the following weeks twenty-five people including children are maimed by
unexploded ordinance.

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2.28;The next day Outland counter-attacks retaking the northern sector of
Gateway and chasing the Baseland forces deep into Baseland. As the fighting
continues it becomes obvious to Colonel Joy that his army is about to be
destroyed. Colonel Joy orders Major Deadeye to use the last of Baselands
155mm cluster-type artillery shells. The use of these shells causes the
Outland forces to slow down allowing the Baseland army to re-group. After
much fierce fighting Outland withdraws to its side of the border.

2.29; While the fighting continues Bill Headline approaches Dr Brown, who
has returned home to Geneva, for an interview about her experiences. During
the interview the following exchange takes place:

Bill Headline: “Can you tell me what you witnessed on your visits to the POW
camp? ”
Dr Brown: “Bill, you know I cannot tell you. I was an ICRC delegate at the
time and am bound by confidentiality. ”
Bill Headline: “But you are no longer a delegate.”
Dr Brown: “Makes no difference.”
Bill Headline: “Surely you can tell us what happened when you were the only
survivor of that massacre? “
Dr Brown: “I may be able to talk about that but I’m not sure, I will have to
get some legal advice, so you will have to wait and see what
happens.”

2.30; On 20 and 21 September 2009, Sergeant Yule, Lieutenant Kane and

Leader Right are killed in fighting.

2.31; Fighting reaches a stalemate.

2.32; The governments of the nearby countries and the United Nations
attempt to force a ceasefire.

2.33; An embargo of all arms and other materials entering Outland and
Baseland is instituted.

2.34;The United Nations Security Council considers a resolution for armed

intervention which results in Outland and Baseland agreeing to a ceasefire.

2.35;On 11 November 2009 the parties agree to a peace treaty including an

amnesty for any person involved in war crimes or crimes against humanity.
The amnesty provokes world outrage that soon abates as the peace treaty
holds. However, the prosecutor of the International Criminal Court announces
that there is no amnesty for serious war crimes or crimes against humanity.
The Security Council passes Security Council Resolution 200098X to the
effect that the Security Council congratulates the parties on signing a peace
treaty and notes that any issue of amnesty and war crimes are a matter for
the International Criminal Court.

2.36; On 15 March 2010 the prosecutor of the ICC announces he will

investigate any reasonable allegations of war crimes or crimes against

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humanity and asks to be allowed to enter Baseland and Outland to interview
witnesses. Outland announces it will not stop the prosecutor entering Outland.
The prosecutor is unable to locate Luke Mali or the man interviewed by Bill
Headline for the Real Times of the World. The government of Baseland
refuses to cooperate with the ICC. On 12 April 2010 the Government of
Baseland writes to the ICC saying:

“The State of Baseland reminds the ICC that Baseland has not ratified
the Rome Statute. We do not recognise the jurisdiction or authority of
the ICC”.

2.37; Eight months later on 12 December 2010 Colonel Joy is appointed

Baseland ambassador to the United Nations. As he leaves Baseland the
Prosecutor issues a warrant for his arrest for war crimes and crimes against
humanity arising out of the conflict. Colonel Joy cannot be contacted as the
plane belongs to an international airline that only services Baseland and is in
international airspace when the warrant is announced. Baseland arranges for
Colonel Joy to be met upon landing and to return immediately to Baseland.
Baseland protests the issuing of the warrant. However, when Colonel Joy
lands he is immediately seized and transferred to the ICC where he is held for
trial.

Dr Brown is served with a subpoena to attend the ICC to be available for

questioning on her evidence at the forthcoming trial of Colonel Joy.

The matter is listed for a pre-trial hearing of the ICC trial chamber to
determine whether or not there is a case to answer for each charge to warrant
the matter going to trial. One of the issues will be whether or not Dr Brown
can give evidence of what she observed and experienced during the events at
Camp Q and Camp Z.

3. Applicable Treaties:

3.1;At all material times, Outland has been a party to the Rome Statute of the
International Criminal Court. Baseland has not ratified the Rome Statute of
the International Criminal Court.

3.2;At all relevant times, Baseland and Outland were parties to the Geneva
Conventions of 1949 and the 1977 Protocols. Both Baseland and Outland
have signed the Convention on Cluster Munitions but not ratified this
convention. The Convention on Cluster Munitions came into force on 1 August
2010.

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4. The CHARGES on which the Prosecutor intends to seek trial:

4.1;The matter is listed for a hearing before a pre-trial chamber of the ICC
pursuant to Article 61 of its Statute to confirm the charges on which the
Prosecutor intends to seek trial. The Prosecutor intends to seek the trial of
Colonel Joy on the following charges.

First Charge:
In respect of the detention of civilians at the town of Noble: the war crime of
unlawful confinement of civilians (Article 8(2)(a)(vii) of the ICC Statute, on the
basis of ordering the crime (Article 25(3)(b) of the ICC Statute)).

Second Charge:
In respect of the killing of Outland military personnel and civilians at Camp Q:
the war crime of wilful killing (Article 8(2)(a)(i) of the ICC Statute, on the basis
of superior responsibility (Article 28 of the ICC Statute)).

Third Charge:
In respect of the killing of Outland civilians and wounded military personnel at
Camp Z: the war crime of wilful killing (Article 8 (2) (a) (i) of the Statute, on
the basis of superior responsibility (Article 28 of the ICC Statute)).

Fourth Charge:
In respect of the shelling barrage by Baseland forces on 22 April 2009: the
war crime of intentionally launching an attack in the knowledge that loss of life
or injury to civilians and damage to civilian objects or the environment would
be excessive to the anticipated military advantage (Article 8(2)(b)(iv) of the
ICC Statute, on the basis of ordering the crime (Article 25(3)(b) of the ICC
Statute)).

Fifth Charge:
In respect of the use of cluster munitions: the war crime of intentionally
launching an attack in the knowledge that loss of life or injury to civilians and
damage to civilian objects or the environment would be excessive to the
anticipated military advantage (Article 8(2)(b)(iv) of the ICC Statute, on the
basis of ordering the crime (Article 25(3)(b) of the ICC Statute)).

5. The Position of the Parties:

5.1 The position of the Prosecutor is that:

(a) There is sufficient evidence to establish substantial grounds to

believe that Colonel Joy is guilty of the charges.

(b) Dr Brown is willing to testify, and the ICRC cannot prevent her.

(c) There is no amnesty for war crimes.

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5.2 The position of the Defence, which objects to all charges, is that:

(a) There is insufficient evidence to establish substantial grounds to

believe that Colonel Joy is guilty of the charges.

(b) Dr Brown cannot testify over the ICRC’s objection, and therefore
there can be no evidence to sustain the second and third charges.

(c) Colonel Joy is entitled to amnesty for the crimes charged under
the terms of the peace treaty.

.. . ..

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