Team Code: T03

THE 21ST HENRY DUNANT MEMORIAL

MOOT COURT COMPETITION, 2022

BEFORE

THE INTERNATIONAL CRIMINAL COURT

THE HAGUE, NETHERLANDS

CASE CONCERNING REPUBLIC OF ZAMORIA

PROSECUTOR

v.

HOBAN BORAMAN JIMBA

-WRITTEN SUBMISSION ON BEHALF OF THE DEFENCE-

 MEMORIAL for DEFENCE

TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................................... 5

STATEMENT OF JURISDICTION ........................................................................................ 8

IDENTIFICATION OF ISSUES ............................................................................................. 9

STATEMENT OF FACTS ................................................................................................... 10

SUMMARY OF PLEADINGS .............................................................................................. 12

PLEADINGS ....................................................................................................................... 13

1. WHETHER THE CYBER-ATTACKS ON THE TANGO DAM CONSTITUTES A WAR

CRIME? .............................................................................................................................. 13

1.1. REQUIRED ELEMENTS OF CRIME UNDER ARTICLE 8 (2) (B) (IV) ARE NOT SATISFIED. .... 13

1.1.1. That there was no widespread, long term and severe damage to the non-human

environment. ................................................................................................................ 13

1.1.2. The Tango Dam was a legitimate military target under IHL ............................ 15

1.1.3. Alternatively, Zamoria is not party to the Additional Protocol I & II to the Geneva

Conventions 1977 ........................................................................................................ 15

1.2. THAT PRESIDENT JIMBA WAS NOT AWARE OF THE FACTUAL CIRCUMSTANCES THAT

ESTABLISHED THE EXISTENCE OF AN INTERNATIONAL ARMED CONFLICT ................................ 16

1.3. PRESIDENT JIMBA IS NOT INDIVIDUALLY CRIMINALLY RESPONSIBLE UNDER ARTICLE 25 OF

THE ROME STATUTE .......................................................................................................... 17

1.3.1. That there was no direct perpetration or any order or solicitation ................... 17

1.3.2. President Jimba cannot be held liable for Co-perpetration ............................. 17

1.3.3. President Jimba cannot be held liable for the act of perpetration by means ... 18

2. PRESIDENT JIMBA CAN’T BE HELD SUPERIORLY LIABLE FOR THE INHUMANE

TREATMENT OF TWO MORELIAN MEMBERS OF AIR FORCES ................................... 18

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2.1. THAT THE ACT TOWARDS THE TWO AIR FORCE OFFICERS WERE NOT IN CONTEXT OF AN

INTERNATIONAL ARMED CONFLICT. ..................................................................................... 19

2.1.1. Alternatively, the Rome Statue doesn’t prescribe liability for the Parade of the

two air-force officers ..................................................................................................... 19

2.2. THE DETENTION OF THE TWO OFFICERS DIDN’T INFLICT SEVERE PHYSICAL OR MENTAL PAIN

............................................................................................................................. 20

2.1.2. Inadmissibility of evidence against the conditions of the detention of the

prisoners of war. .......................................................................................................... 21

3. PRESIDENT JIMBA BEARS NO CRIMINAL RESPONSIBILITY FOR THE WAR CRIME

OF INTENTIONALLY DIRECTING ATTACKS AGAINST BUILDINGS DEDICATED TO

RELIGION, EDUCATION, ART, SCIENCE OR CHARITABLE PURPOSES, HISTORIC

MONUMENTS .................................................................................................................... 22

3.1. THE WAR CRIME OF ATTACKING PROTECTED OBJECTS IS NOT ESTABLISHED. ............... 22

3.1.1. The object was a military objective................................................................. 22

3.1.2. The attack on the Sachu Bicchu peak was proportionate ............................... 22

3.2. PRESIDENT JIMBA TOOK REASONABLE STEPS TO MITIGATE DAMAGES FROM ATTACK . 23

3.3. ALTERNATIVELY, ZAMORIA IS NOT A PARTY TO THE ADDITIONAL PROTOCOLS TO THE

GENEVA CONVENTIONS. .................................................................................................... 23

3.4. ELEMENTS OF ARTICLE 8(2)(B)(IX) NOT SATISFIED .................................................... 23

3.2.1. The object of the attack does not have nexus to any historic monument ........ 23

3.2.2. The perpetrator did not intentionally direct an attack towards Sachu Ticchu as

an objective.................................................................................................................. 24

3.2.2.1. That no reasonable action to distinguish between military objective and the

natural environment was possible............................................................................. 24

4. PRESIDENT JIMBA BEARS NO CRIMINAL RESPONSIBILITY FOR THE CRIME OF

VIOLENCE TO LIFE AND PERSON IN PARTICULAR CRUEL TREATMENT AND

TORTURE UNDER THE ROME STATUTE. ....................................................................... 26

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4.1. THAT THE ALLEGED WAR CRIME OF VIOLENCE TO LIFE AND PERSON IS NOT SUFFICIENTLY

ESTABLISHED.................................................................................................................... 26

4.1.1. That the act is not sufficient to qualify as a crime under Article 8(2)(c)(i). ....... 26

4.1.2. That there was absence of Particular Mens Rea required for the commission of

the act. ...................................................................................................................... 26

4.2. MATERIAL ELEMENTS OF THE CRIMES ALLEGED UNDER ARTICLE 8(2)(C)(I) OF THE ROME

STATUTE IS NOT ESTABLISHED. .......................................................................................... 27

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

conflict not of an international character. ......................... Error! Bookmark not defined.

4.3. PRESIDENT HOBAN BORAMAN JIMBA CANNOT BE HELD RESPONSIBLE FOR THE CRIME

COMMITTED UNDER ARTICLE 28(B) OF THE ROME STATUTE ................................................. 28

4.3.1. Hoban Boraman Jimba does not have an effective command and control over

the perpetrators involved in the crimes. ........................................................................ 28

4.3.2. President Hoban Boraman Jimba did not knowingly fail to prevent a crime .... 29

4.3.3. President Hoban Boraman Jimba did not knowingly fail to punish a crime ..... 30

4.3.4. President Jimba didn’t fail to submit the matter to the competent authorities . 30

PRAYER FOR RELIEF ....................................................................................................... 31

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INDEX OF AUTHORITIES

Rules

Customary International Humanitarian Law, ICRC, vol 11............................................. 15, 20

Hague Rules of Air Warfare, May 22, 1923. ........................................................................ 24

HPCR Manual on International Law Applicable to Air and Missile Warfare, January 21, 2013.

........................................................................................................................................ 24

Treatises

Additional Protocol I to the Geneva Conventions, Dec. 7, 1978, 1125 U.N.T.S. 3. ..................

............................................................................................................................ 13, 15, 22

Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14

May 1954. ........................................................................................................... 22, 25, 26

Rome Statute of the International Criminal Court, Article 22(2), July 1, 2002, 2187 U.N.T.S.

90 ................................................................................. 8, 13, 16, 17, 19, 21, 22, 25, 29, 30

Vienna Convention on the Law of Treaties, Article 32, May 23, 1969, U.N.T.S. 1155.... 13, 15

Articles

Diedrich M., Law of War and Ecology, A Proposal for a Workable Approach to Protecting the

Environment through the Law of War, Vol. 136, Mil Law Rev (1992). .............................. 24

Landrum, The Yamashita War Crimes Trial: Command Responsibility Then and Now, 149 Mil.

L. Rev. (1995).................................................................................................................. 33

Laura-Liisa Laving, The Reliability of Open Source Evidence In the International Criminal

Court. .............................................................................................................................. 23

Rosemay Rayfuse, “Rethinking international law and the protection of the environment in

relation to armed conflict” in War and the Environment: New Approaches to Protecting the

Environment in Relation to Armed Conflict (Brill Nijhoff, 2015). ....................................... 15

Books

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HULME KAREN, WAR-TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD, (Martinus

Nijhoff Publishers, 2004) ................................................................................................. 13

ICRC, Commentary on General Protection of Civilian Objects, 1987. ................................. 24

ICRC, Commentary on the Additional Protocols. ................................................................. 15

IRYNA MARCHUK, THE FUNDAMENTAL CONCEPT OF CRIME IN INTERNATIONAL CRIMINAL LAW: A

COMPARATIVE LAW ANALYSIS (Spinger, 2013)................................................................... 17

O. TRIFFTERER, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

(Hart Publishing, 2008) .................................................................................................... 18

Other Authorities

Advisory Opinion on the Legality of the Threat of Use of nuclear weapons 1996, ICJ Report

1996. ............................................................................................................................... 22

ICRC, “Strengthening Legal Protection for victims of Armed Conflict”, 31IC/11/5.1.1. ......... 23

ICRC, International Humanitarian Law and the challenges of contemporary armed conflicts in

2015, ICRC (10 December 2015), https://casebook.icrc.org/case-study/icrc-international-

humanitarian-law-and-challenges-contemporary-armed-conflicts-2015#challenges-2015-

para29 ............................................................................................................................. 27

International Criminal Tribunal for the Former Yugoslavia Cases

Prosecutor v Delalic (Trial Judgement), IT-96-21-T, (ICTY 2003). ....................................... 26

Prosecutor v. Blaskic (Appeals Judgment) IT-95-14-A, (ICTY 2004). ............................ 28, 29

Prosecutor v. Dario Kordic, Mario Cerkez (Appeal Judgement), IT-95-14/2, (ICTY 2004). ......

.................................................................................................................................. 20, 26

Prosecutor v. Dusko Tadić (Appeal Judgement), IT-94-1-A, ICL 93 (ICTY 1999). ... 16, 19, 27

Prosecutor v. Duško Tadić, (Trial Judgement), IT-94-1-T, (ICTY 1997). .............................. 20

Prosecutor v. Mucic et al., (Appeals Judgement), IT-96-21-T (ICTY 2001).......................... 29

Prosecutor v. Mucic et. al, (Trial Judgement), IT-96-21-A, (ICTY 1998). ............................. 28

Prosecutor v. Naletilić, (Trial Judgement), IT-98-34-T, (ICTY 2003). ................................... 30

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Prosecutor v. Orić (Trial Judgement) IT-03-68-T, (ICTY 2006).. .......................................... 29

Prosecutor v. Jadranko Prlic (Trial Judgement) ICTY-IT-04-74-T (ICTY 2013). ................... 18

International Criminal Tribunal for Rwanda Cases

Prosecutor v. Kayishema and Ruzindana (Trial Judgment) ICTR-95-1-A (ICTR 1999)........ 20

International Criminal Court Cases

Prosecutor v Jean-Pierre Bemba Gombo, (Pre-Trial Chamber II) ICC-01/05-01/08-424 (ICC

2009) ......................................................................................................................... 19, 30

Prosecutor v Lubanga (Decision on the Confirmation of Charges), ICC-01/04-01/06-803, (ICC

2007). .............................................................................................................................. 17

Prosecutor v. Katanga & Chui, (Confirmation of Charges) ICC-01/04-01/07-717, (ICC 2008).

........................................................................................................................................ 18

Prosecutor v. Katanga (Trial Judgement), ICC-01/04-01/07-717 01-10-2008 1/226 VW PT

(ICC 2008). ...................................................................................................................... 27

International Court of Justice Cases

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of

America) (Merits, Judgment) ICJ Reports 1986. .............................................................. 14

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STATEMENT OF JURISDICTION

The Republic of Zamoria and the Kingdom of Morelia have agreed to submit their dispute to

the International Criminal Court pursuant to Article 12 and Article 13 read with Article 5 of the

Rome Statute of the International Criminal Code.

Crimes within the jurisdiction of the Court

“The jurisdiction of the Court shall be limited to the most serious crimes of concern to the

international community as a whole. The Court has jurisdiction in accordance with this Statute

with respect to the following crimes:

a) The crime of genocide;

b) Crimes against humanity;

c) War crimes;

d) Crime of aggression”1

In accordance to the above-stated Articles of the ICC statute, this court has jurisdiction to

adjudicate all the matters submitted to it and pass any judgement/order/decree as it deems fit.

The parties agree to consider the same as final and binding and execute it in good faith.

1 Rome Statute of the International Criminal Court, Article 5, July 1, 2002, 2187 U.N.T.S. 90.

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IDENTIFICATION OF ISSUES

COUNT 1

President Hoban Boraman Jimba bears no criminal responsibility for the war crime of

excessive incidental death, injury, or damage under article 8(2)(b)(iv) of the Rome statute

COUNT 2

President Jimba can’t be held Superiorly Liable for the Inhumane Treatment of two Morelian

Members of Air Forces

COUNT 3

President Hoban Boraman Jimba bears no criminal responsibility for the war crime of

intentionally directing attacks against buildings dedicated to religion, education, art, science

or charitable purposes, historic monuments under Article 8 (2) (b) (ix) of the Rome Statute

COUNT 4

President Hoban Boraman Jimba bears no criminal responsibility for the war crime of violence

to life and person in particular cruel treatment and torture under Article 8 (2) (c) (i) of the Rome

Statute.

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STATEMENT OF FACTS

Republic of Zamoria is part of the continent of Highlandia and bordering the Highlandic ocean.

Majority of Zamorians are ‘Zam’, whereas majority of Morelians are ‘Chilpan’. However, a

small minority of Chilpans live in ‘Papanoa’ region of southern Zamoria that is bordering

Morelia. There’s only been one-party rule by the Zamorian National Congress (ZNC). Since

May 1998, the country is ruled by Hoban Boraman Jimba-an Ultra-nationalist Zam.

Morelia has a democratically elected government that is headed by President Ringham. It has

a co-operation agreement with the Western defence alliance, North Atlantic Treaty

Organization (NATO). President Ringham is extremely sympathetic with the Papanoan cause.

DISCOVERY OF OIL AND SUBSEQUENT CLASHES

In early 2010s, huge deposits of petroleum were found in the Papanoa region. In April 2012,

President Jimba approved a decree imposing severe restrictions on the quantity and types of

fish that could be harvested from Victory Lake, justifying it by asserting that it has been

conserve natural resources of the Lake. To enforce the decree, the police cordoned off large

parts of Victory Lake, making it almost impossible for Chilpans to continue their traditional

lifestyle and to have access to food. Chilpan were not satisfied with this. They decided to fight

for their rights and, to that end, established the PLM in 2014. The PLM is led by Sporus Marvis.

CYBER ATTACK ON TANGO HYDEL PROJECT

In March 2017, an intelligence report of Zamoria’s spy agency ZEBRA confirmed that PLA is

receiving ammunition from a factory in Bingo that was getting its electricity from a hydel power

station on Tango Dam. An unforeseen cyber-attack on Tango Dam at 03.28 hours on 11 May

disabled its ARMAC system, opening its thirteen gates that led to massive flash floods. It was

difficult to determine the exact loss of life with initial estimates ranging from 3000 to 4000.

ACTS AGAINST THE TWO OFFICRES OF MORELIA

Anticipating attacks from armed forces, both the countries enhanced their border surveillance.

In 2018, an EA-6B Prowler surveillance aircraft of Morelia Air Force experienced engine failure

while flying close to the Eastern Sector of the border. The pilots of the aircraft bailed out before

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the crash and landed on the Zamorian side. They were swiftly captured by the Border Patrol

and taken to their base camp. They were transferred to Discotheque in violation of IHL.

ATTACK ON SACHU-TICCHU
The Ministry of Communication of Morelia decided to erect a telecom tower on ‘Bindu’ in 2018.

Sporus Marvis and his associates started using Radio Papanoa regularly to organize greater

support for their struggle against Zamoria. President Jimba decided to ‘neutralise’ the Bindu

telecom tower after receiving the periodical ZEBRA reports confirmed and reconfirmed that

Radio Papanoa was helping PLM/PLA ‘terrorists’ to generate massive funding to fortify its

ability to fight with Zamorian armed and security forces. In addition to causing permanent

damage to the peak, the attack has resulted into the collapse of some Binca dwellings, total

flattening of stonework of the Temple of Fire, Tower of Rituals and the Royal Shrine.

COVID SITUATION AND OPERATION COVIDEND

On 8 March 2021, the ICRC requested the Government of Zamoria its permission to vaccinate

the most vulnerable sections of the population. The Government refused permission to ICRC

to go to Papanoa region, in particular, the area held by PLM/PLA, citing ‘imperative concerns

of safety and security of ICRC staff’. The Morelian government decided to share their stock of

vaccines with the Chilpan population in Papanoa. Each team consisted of three vaccinators,

one helper and three armed soldiers. The entire initiative was called ‘Operation Covidend’

(Covid-end). On 24 April, one team reached Garoway, a village located on the de facto line of

control (LoC) between PLA held area and the government-controlled area. A member of the

patrolling team saw some movement in the ‘enemy territory’. Believing that they were going to

cross the LoC, he fired a bullet at one of them.

MATTER BEFORE ICC

Following the investigation, on 29 November 2022, the ICC Office of Prosecutor framed an

indictment against President Jimba and announced that the Pre-Trial Chamber of the ICC will

hold proceedings for confirmation of charges in accordance with Article 61 of the Rome

Statute.

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SUMMARY OF PLEADINGS

Count 1: It is submitted that according to Article 8(2)(B)(iv) there existence no widespread,

long term or severe damage due to the attack. The Tango dam is seen as a legitimate military

target due to its electricity being used towards ammunitions. Alternatively, Zamoria is not liable

to treaty obligations as an unsigned third party according to Article 34 of the VCLT. Further,

President Jimba cannot be held liable as there existed no form of direct, indirect or perpetration

by means. President Jimba was neither actively taking part in the mission nor at the command

centre when it occurred.

Count 2: In the Tadić case, the term "international armed conflict" (IAC) was defined. When

two sides, either government authorities and organised armed organisations or between such

groups, use violence or armed force, it is a conflict. Two issues are argued in this case (i)

detention was with intention of making sure that the two-officers don’t return to the combat

and remain as hors de combat to the armed conflict (ii) there exists no substantial evidence of

the detention lacking the international standards of food, water, sanitation and basic hygiene.

Count 3: The military lines of communication built on the top of the Sachu Ticchu peak are

seen as legitimate military objectives under the classifications of The Hague convention.

Further, there exist no direct intent to destroy the cultural property and the attack solely relied

on disarming the telecom tower. Conclusively all possible steps were taken to mitigate

possible loss of life or natural environment the moment of attack itself.

Count 4: The war crime of murder requires that a perpetrator killed or caused the death of

one or more persons as a result of actions or omissions. The perpetrator did not intend to

inflict severe physical or mental pain the action was simply to neutralized the defence of the

border which was located on the de facto line of control (LoC) between PLA held area and the

government-controlled area. Further, the Zamorian soldiers acts without orders does not bind

President Jimba to their acts of sovereign protection.

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PLEADINGS

COUNT 1
1. WHETHER THE CYBER-ATTACKS ON THE TANGO DAM CONSTITUTES A WAR CRIME?
1.1. Required Elements of Crime under Article 8 (2) (b) (iv) are not satisfied.
Elements of Crimes under Article 8(2) (b) (iv) require the establishment of five elements, two

of which are not satisfied.

1.1.1. That there was no widespread, long term and severe damage to the non-
human environment.

Article 8(2)(b)(iv) prohibits committing “widespread, long term and severe damage to the non-

human environment” but neither the Rome Statute nor the Elements of Crimes define these

terms. In case of ambiguity, the definition shall be interpreted in favour of the person being

investigated, prosecuted, or convicted.2 Furthermore, although Article 35(3) of the AP I state

that care shall be taken in warfare to protect the natural environment against widespread,

long-term and severe damage.3 There is no clear threshold to what is considered widespread,

long-term, and severe and same determined on a case-to-case basis.4

Article 32 of the VCLT espouses that recourse may be had to supplementary means of

interpretation.5 The preparatory work of Article 35 of the AP I to the Geneva Convention shows

that the plenipotentiaries considered the use of unconventional weapons as the ones that

would cause widespread, long-term, and severe damage.6 These unconventional weapons

include the use of nuclear weapons, chemical weapons, biological weapons, and weapons

prohibited under the Convention on Certain Conventional Weapons which when used severely

destroy the genetic makeup of an ecosystem with no recovery.7 Secondly, the threshold of

ENMOD Convention can’t be applied since the threshold in Rome Statute is conjunctive in

nature8 while in ENMOD Convention it is disjunctive in nature. It is to be considered since the

2 Rome Statute of the International Criminal Court, Article 22(2), July 1, 2002, 2187 U.N.T.S. 90.
3 Additional Protocol I to the Geneva Conventions, Art. 35(3), Dec. 7, 1978, 1125 U.N.T.S. 3.
4 HULME KAREN, WAR-TORN ENVIRONMENT: INTERPRETING THE LEGAL THRESHOLD, 93 (Martinus Nijhoff Publishers,

2004).
5 Vienna Convention on the Law of Treaties, Article 32, May 23, 1969, U.N.T.S. 1155.
6 Advisory opinion on the Legality of the Threat or Use of nuclear weapons [1996] ICJ 2.
7 ibid.
8 Rome Statute of the International Criminal Court, Article 8(2)(b)(iv), July 1, 2002, 2187 U.N.T.S. 90.

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elements are conjunctive in nature all three – widespread, severe and long-term – elements

are to be met.

Here, primarily no form of chemical or biological materials or weapons were used by Zamoria.

Secondly, the targeting the Tango Dam does not destroy the ecological integrity of the Morelia

or the ecosystem of Morelia. Although the attack causing destruction to sustenance may

qualify severity but the attack was restricted to the regions close to the Dam, there was no

cascading widespread effect to the environment. Secondly, there is no quantification that the

loss to the environment was long-term since the attack. Although the time required to recover

the productive capacity of dam was calculated by the Morelian Authorities9 It doesn’t amount

to long-term damage to the natural environment since the Dam was a military objective and is

not part of the natural environment. Therefore, all three elements were not met by the attack.

1.1.2. There exists a high legal threshold to fall under the definition of attack.

International customary law provides general practices accepted by law. It is agreed that the

existence of a rule of customary law requires the presence of two elements (i) State Practice

& (ii) Opinio Juris. As of today, there have been no cyber-attacks that have been publicly

characterized and accepted by the international community as reaching the threshold of ‘an

armed attack’.10 Two facts provided in the Tadic case help classify an attack as an armed

attack (i) the use of the gravest forms of force & (ii) the operations scale and effects.11

It is submitted following International Customary Law there exists no working example of

cyber-attack at par with an armed conflict and hence it would be an estimation to categorize

the attack on Bingo without a single comparison to a previous circumstance. Therefore, with

a lack of both followed state practice and previously accepted case law (opinio Juris) there

exists no definable threshold to classify the incident as an attack.

9 Fact Matrix ¶12.

10 15 Tallinn Manual, commentary nr. 13 to Rule 13, pg. 57.
11 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits,

Judgment) ICJ Reports 1986, ¶191.

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1.1.3. The Tango Dam was a legitimate military target under IHL

A "military objective" includes objects which 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.12 A

“civilian object” entails “all objects which are not military objectives.”13 Under certain

circumstances, the environment may become a military objective, in which case such locations

may be lawfully targeted.14 Furthermore, if the element of surprise is a necessity to achieve

the military objectives,15 issuing an advance warning is legally unnecessary and self-

defeating.16

The Tango Dam served as an objective in the tussle between Zamoria and PLA and met the

criteria of a military objective. The Tango Dam was the energy provider to Bingo region that

supplied weapons to the Papanoan Liberation Army. Neutralizing the energy source offered a

military advantage to Zamoria as it helped in securing the national integrity of Zamoria.

1.1.4. Alternatively, Zamoria is not party to the Additional Protocol I & II to the
Geneva Conventions 1977

AP I prohibits belligerents from employing means of warfare that may cause widespread, long-

term, and severe damage to the natural environment.17 Article 34 of the VCLT states that a

treaty does not create obligations for a third state without its consent.18

However, Zamoria is not a party to either the AP I or AP II.19 Consequently, the provisions of

AP I and AP II do not bind Zamoria. Therefore, any threshold provided by the Protocols doesn’t

apply to Zamoria.

12 Customary International Humanitarian Law, Rule 8, ICRC, vol 11.

13 ibid.
14 Rosemay Rayfuse, “Rethinking international law and the protection of the environment in relation to armed

conflict” in War and the Environment: New Approaches to Protecting the Environment in Relation to Armed Conflict,
6 (Brill Nijhoff, 2015).
15 ICRC, Commentary on the Additional Protocols, ICRC, ¶ 2223.
16 AP I, Art. 57 (2) (c)
17 AP I, Arts. 35(3),55.
18 Vienna Convention on the Law of Treaties, Article 34, May 23, 1969, U.N.T.S. 1155.
19 Fact Matrix Annexure.

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1.2. That President Jimba was not aware of the factual circumstances that
established the existence of an international armed conflict
Particular mental element is an essential when it comes to Article 8(2)(b)(iv), thereby, it is to

be noted that awareness of the international armed conflict is an important to commit the

offence. It is to be proved that the acts had a nexus to the international armed conflict or had

knowledge of the factual circumstances.20 Although two governmental organizations or armed

forces might not be required to initiate an armed conflict and even non-state actors can be

used in an international armed conflict21 it is to be in consideration of the “overall control” test

given in the Tadić case. As per the test it must be proved if the State in question openly

supported or sanctioned the unlawful conduct ex post facto to the non-state actor or it must

be established whether explicit instructions about the commission of that specific act had been

sent by that State to the individual or group in question.22 The probative value of any evidence

will often determine whether it is admissible in foreign countries.23

In the case at hand, the attributable evidence linking the cyber-attack to Zamoria is given by

NATO.24 Although nothing in the report attributes such acts to the acts to the government of

Zamoria or to President Jimba. Moreover, as per the overall control test, it hasn’t established

that Zamoria either instructed the commission of such act or had publicly expressed to do so.

Therefore, neither can it be said that the cyber-attacks were particularly done by Zamorian

authorities nor it can be established that Zamorian government had control over the attacks

which can be done by a third party.

Therefore, in light of such a situation it can be sufficiently established that President Jimba

has no awareness of the existence of such an armed conflict. Moreover, if such acts can’t be

attributed to the state, then there can’t be individual criminal liability on President Jimba.

20 Prosecutor v. Dusko Tadić (Appeal Judgement), IT-94-1-A, ICL 93 (ICTY 1999) ¶84.
21 Prosecutor v. Dusko Tadić (Appeal Judgement), IT-94-1-A, ICL 93 (ICTY 1999) ¶95.
22 Prosecutor v. Dusko Tadić (Appeal Judgement), IT-94-1-A, ICL 93 (ICTY 1999) ¶137.
23 Rome Statute of the International Criminal Court, Article 69(4), July 1, 2002, 2187 U.N.T.S. 90.
24 supra note 9.

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1.3. President Jimba is not individually criminally responsible under Article 25 of

the Rome Statute
Article 25 of the Rome Statute ascribes individual liability when there is either commission of25

or contributes to26 a criminal act or order or solicitation for committing such act27 or abetment

or aid in any other kind for the commission of the crime28. Criminal responsibility can be

established in cases of direct perpetration, co-perpetration and perpetration by means.29

1.3.1. That there was no direct perpetration or any order or solicitation

Direct Perpetration signifies the direct commission or solicitation of an offence.

President Jimba did not physically carry out all the elements of the offence individually. 30

Neither any order or solicitation to carry out such attacks were present by President Jimba to

carry out such cyber-attacks31 Therefore it is contrary to the notion that President Jimba bears

individual criminal responsibility for the incident.

1.3.2. President Jimba cannot be held liable for Co-perpetration

Co-perpetration requires satisfying objective and subjective tests.32 The objective test

mandates the existence of a common plan or agreement and a coordinated essential

contribution by co-perpetrators. The subjective test requires a mutual awareness that the plan

may result in the realisation of objective elements of the crime. The objective element does

not stand satisfied by merely passing a legal order33 in pursuance of military necessity.

Since, there was an absence of any solicitation, there was no possibility of realisation of

objective elements of the crime. In addendum, there is no evidence of sufficient probative

value which shows existence of such plan or contribution by President Jimba.

25 Rome Statute of the International Criminal Court, Article 25(3)(a), July 1, 2002, 2187 U.N.T.S. 90.
26 Rome Statute of the International Criminal Court, Article 25(3)(d), July 1, 2002, 2187 U.N.T.S. 90.
27 Rome Statute of the International Criminal Court, Article 25(3)(b), July 1, 2002, 2187 U.N.T.S. 90.
28 Rome Statute of the International Criminal Court, Article 25(3)(c), July 1, 2002, 2187 U.N.T.S. 90.
29 Rome Statute of the International Criminal Court, Article 25(3)(a), July 1, 2002, 2187 U.N.T.S. 90.
30 supra Note 9.
31 ibid.
32 Prosecutor v Lubanga (Decision on the Confirmation of Charges), ICC-01/04-01/06-803, PTC I (ICC 2007), ¶343
33 IRYNA MARCHUK, THE FUNDAMENTAL CONCEPT OF CRIME IN INTERNATIONAL CRIMINAL LAW: A COMPARATIVE LAW

ANALYSIS 25 (Spinger, 2013).

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1.3.3. President Jimba cannot be held liable for the act of perpetration by means

Such mode can be established only where the direct perpetrator is used as an instrument by

the indirect perpetrator. It requires an exercise of dominant control by the perpetrator.34 The

perpetrator exercised control over subordinates through a formalised power structure and was

in a position to remove a subordinate who disobeyed. It entails having authority over the

organisation, belonging to the same hierarchical system of government, or having the ability

to carry out crimes with virtually complete impunity.35 Lastly, giving an order requires a positive

act and thus may not be committed by omission.36

President Jimba never made volition to give (by virtue of a positive act) any explicit or implicit

orders of the attacks. Moreover, there was no intent or pre-meditation about the act. President

Jimba always maintained for having peaceful relations with Morelia.37 Furthermore, there was

no substantial evidence that President Jimba either supported any other authority or ordered

anything to a third party regarding the cyber-attacks.

COUNT 2

2. PRESIDENT JIMBA CAN’T BE HELD SUPERIORLY LIABLE FOR THE INHUMANE TREATMENT OF
TWO MORELIAN MEMBERS OF AIR FORCES

The acts towards the members of the air force of Morelia can be broadly divided into 2

scenarios, initially, the forced march of the two air-force38 officers and secondly. their

detention.39 In either case both of these neither constitute as a war crime nor as grave breach

of any of the Geneva Conventions. This can be proved through disproving the elements of

article 8(2)(a)(ii) itself.

34 O. TRIFFTERER, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 996 (Hart Publishing,
2008).
35 Prosecutor v. Katanga & Chui, (Confirmation of Charges) ICC-01/04-01/07-717, ICC 2008 ¶ 305.
36 Prosecutor v. Jadranko Prlic (Trial Judgement) ICTY-IT-04-74-T (ICTY 2013), ¶231.
37 supra Note 9.
38 Fact Matrix ¶13.
39 Fact Matrix ¶17.

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2.1. That the act towards the two air force officers were not in context of an
international armed conflict.
In the Tadić case, the term "international armed conflict" (IAC) was defined. When two sides,

either government authorities and organised armed organisations or between such groups,

use violence or armed force, it is a conflict.40 In addition to military troops, other players such

as organised organisations may also be utilised in an international armed conflict.41 In these

cases the test of "overall control" is used that prescribes that it must be demonstrated if the

State in question explicitly instructed the individual or group in question to do that particular

act or whether it was established whether the State openly backed or sanctioned the unlawful

activity ex post facto to the non-state actor.42

As stated above, it can’t be substantially proved that the cyber-attacks were connected to the

state authorities of Zamoria, and therefore, there was no international armed conflict till,

January 2019, when Zamoria conducted the attack on the radio towers on Sachu Ticchu in an

imperative military necessity.43 Thereby, all acts including the parade of the two air-force

member of Morelia were not in context of an international armed conflict.44 The armed conflict

between Morelia and Zamoria initiated with the the attack on the radio towers on Sachu

Ticchu. Therefore, the only the status of the two air-force officers as prisoners of wars started

after January 2019, and only the issue of detention of the officers can be raised for violation

the grave breaches. The parade of the two officers was not at the time the international armed

conflict began and therefore, it doesn’t constitute a war crime under article 8(2)(a)(ii). Zamoria

was in an international armed conflict with Morelia only after the January 2019.

2.1.1. Alternatively, the Rome Statue doesn’t prescribe liability for the Parade
of the two air-force officers

As per the Article 8(2)(a) of the Rome Statue, the ‘grave breaches’ of Geneva Convention are

described.45 Secondly, Rome Statue through the same article differs from the ICTY’s

40 Prosecutor v. Dusko Tadić (Appeal Judgement), IT-94-1-A, ICL 93 (ICTY 1999), ¶84.
41 Prosecutor v Jean-Pierre Bemba Gombo, (Pre-Trial Chamber II) ICC-01/05-01/08-424 (ICC 2009).
42 Prosecutor v. Dusko Tadić (Appeal Judgement), IT-94-1-A, ICL 93 (ICTY 1999) ¶137.
43 supra note 39.
44 supra note 38.
45 Rome Statute of the International Criminal Court, Article 8(2)(a), July 1, 2002, 2187 U.N.T.S. 90.

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interpretation of torture and inhumane treatment with an element of “severity.” Even ICTY and

ICTR accepted that inhumane acts need to have an element of ‘severity’ or ‘seriousness’46.

As per the ICTR the severity has to be adjudged on a case-to-case basis. 47

During the Nurnberg Trails death marches were considered as severe war crimes. In

comparison to the said peace, the parade of the two air-force officers was doesn’t qualify the

status of severe. Neither the parade let to any consequential damage to the officers, nor they

were prisoners of war at that moment. Moreover, Grave breaches provided in the Rome

Statute don't indicate prohibition or prohibit placement to public curiosity in itself.

2.2. The detention of the two officers didn’t inflict severe physical or mental pain
An intention to willfully cause considerable suffering or substantial harm to the body or health

is required for inhuman treatment.48 "Inhumane conditions" refers to the real character of the

overall setting in which people in detention are placed and the treatment they get. Legal

requirements are unchangeable and unrelated. Therefore, no consideration should be given

to the conditions present in the place of imprisonment, in order to decide what the standard of

treatment should have been when looking at the factual claim of cruel conditions with respect

to these legal standards.

After the international armed conflict initiated, the two air-officers were in detention.49 The

detention was with intention of making sure that the two-officers don’t return to the combat

and remain as hors de combat to the armed conflict. Secondly, there exists no substantial

evidence of the detention lacking the international standards of food, water, sanitation and

basic hygiene. The release of the prisoners of war is only after the cessation of conflict.50 Since

both the nations were still in continued armed tension between the borders, there couldn’t

have been any release of the officers.

46 Prosecutor v. Duško Tadić, (Trial Judgement), IT-94-1-T, (ICTY 1997), ¶728.

47 Prosecutor v. Kayishema and Ruzindana (Trial Judgment) ICTR-95-1-A (ICTR 1999), ¶151.
48 Prosecutor v. Dario Kordic, Mario Cerkez (Appeal Judgement), IT-95-14/2 (ICTY 2004), ¶245.
49 supra note 39.
50 Customary International Humanitarian Law, Rule 128, ICRC, vol 11.

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2.1.2. Inadmissibility of evidence against the conditions of the detention of the

prisoners of war.

Any piece of evidence's admission in a foreign court will often depend on its probative value.51

The source from which the parties get the information must be considered as part of the

process of determining this probative value since it is crucial to examine the independence

and impartiality of the source.52 The impartiality of the evidence, which is necessary for it to

have any probative value, might be compromised by both the respondent's lack of involvement

in the examinations and other factors. Even if the Court were to believe this source, the fact

that the source of the evidence may be trusted does not necessarily imply that the information

it contains is trustworthy.53 As an example, "an NGO which has produced trustworthy material

in multiple past reports might yet make mistakes in its research and preparation," which is

true, "known and reliable sources could make mistakes."54

The report on the conditions of the detention center of ‘Discotheque’ was provided by Amnesty

International.55 The report can’t be a document under evidence as it lacks probative value,

owing to the non-consultation of the respondent. Amnesty International was not even

operating in Zamoria since 2011.56 Moreover, the report itself keeps its sources of information

undisclosed and it explicitly states that the report is based on unconfirmed reports. Moreover,

it has no probative value to confirm the charge of inhumane conditions of detention as it

doesn’t even mention the conditions of Discotheque. The hunger strikes can’t be indicative of

the conditions57 and it can’t be determined solely on the basis of the report that the two air-

force officers were subjected to inhumane conditions while in detention.

Therefore, it humbly submitted that the crime regarding for inhumane treatment of protected

individual under Article 8(2)(a)(ii) shouldn’t be confirmed on the basis of the substantial

51 Rome Statute of the International Criminal Court, Article 69(4), July 1, 2002, 2187 U.N.T.S. 90
52 Laura-Liisa Laving, The Reliability of Open Source Evidence In the International Criminal Court p. 29.
53 Prosecutor v. Kupreskic et al., (Appeals Judgement), IT-95-16-A, (ICTY 2001) ¶138.
54 Laura-Liisa Laving, The Reliability of Open Source Evidence In the International Criminal Court p. 39.
55 supra note 39.
56 ibid.
57 ibid.

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evidence and the lack of an international armed conflict prior to the detention of the two air-

force officers.

COUNT 3

3. PRESIDENT JIMBA BEARS NO CRIMINAL RESPONSIBILITY FOR THE WAR CRIME OF

INTENTIONALLY DIRECTING ATTACKS AGAINST BUILDINGS DEDICATED TO RELIGION,
EDUCATION, ART, SCIENCE OR CHARITABLE PURPOSES, HISTORIC MONUMENTS

3.1. The war crime of attacking protected objects is not established.

3.1.1. The object was a military objective

Attack on protected object is strictly prohibited save for military objectives.58 Protected objects

are buildings dedicated to religion, education, art, science or charitable purposes, historic
59
monuments, hospitals or places where the sick and wounded are collected. On the other

hand, a military objective is an object which 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. 60

3.1.2. The attack on the Sachu Bicchu peak was proportionate

The proportionality principle places limits on belligerents in choosing methods and tactics of

warfare.61 It requires that before destroying a natural resource site by military activity, the

military authority should weigh the expected environmental harm against the military

anticipated benefits to be gained.62

There exists no other option to neutralize the military communications line on the Bindu peak.

The peak stood at a height of 3081m above sea level which was not easily accessible to

possible ground forces.

58 Rome Statute of the International Criminal Court, Article 8 (2)(e)(iv)(2), July 1, 2002, 2187 U.N.T.S. 90.
59 Rome Statute of the International Criminal Court, Article 8 (2)(e)(iv)(2), July 1, 2002, 2187 U.N.T.S. 90.
60 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, art. 1(f), 14 May 1954.
61 Diedrich M., Law of War and Ecology, A Proposal for a Workable Approach to Protecting the Environment through

the Law of War, Vol. 136, Mil Law Rev, p.137 (1992).
62 Advisory Opinion on the Legality of the Threat of Use of nuclear weapons 1996, ICJ Report 1996, p30.

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ZEBRA reports confirmed and reconfirmed that Radio Papanoa was helping PLA/PLM

‘terrorists’ generate massive funding to fortify its ability to fight the Zamorian security and

armed forces.63

3.2. President Jimba took Reasonable Steps to Mitigate Damages from Attack
It is submitted that the attack took place in the morning away from the presence of tourists.

The attack further used a localised missile64 targeted specifically towards the peak reducing

damage to the neighbouring peaks and natural environment.65 Subsequently, the actions of

President Jimba follow Art 57(4) of Protocol I protecting and avoiding civilian lives.66 The air

attack in no form endangered civilian life and hence falls under the stands of international

law.67

3.3. Alternatively, Zamoria is not a Party to the Additional Protocols to the Geneva
Conventions.
AP I prohibits belligerents from employing means of warfare that may cause widespread, long-

term, and severe damage to the natural environment.68 However, Zamoria is not a party to AP

I, AP II, or the first and second protocol for the Protection of Cultural Property in the events of

Armed Conflict. Article 34 of the VCLT states that a treaty does not create obligations for a

third state without its consent. Consequently, the provision of the respective statutes do not

bind Zamoria.

3.4. Elements of Article 8(2)(b)(ix) not satisfied

3.2.1. The object of the attack does not have nexus to any historic monument

An attack cannot be directed against parts of the natural environment unless it is directed

against a specific element of the natural environment that has become a military objective. 69

Air Bombardments are legitimate when directed exclusively against certain military objectives.

Under the Geneva Convention these military objectives include military lines of communication

63 supra note 39.

64 supra note 39.
65 ibid.
66 AP I, Art. 57(4).
67 AP I, Art. 49(3).
68 AP I, Art 35(3).
69 ICRC, “Strengthening Legal Protection for victims of Armed Conflict”, 31IC/11/5.1.1.

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used for military purposes.70 Military objectives under the Additional Protocol include

installations of broadcasting and television station.71

The Sachu Ticchu was in the current case is used as a military line of communication by the

PLA/PLM which falls under military objective. The line of communication directly worked

towards strengthening the military outposts of the PLA/PLM. The Telecom tower build on top

of the peak with the information provided is seen to make an effective contribution to reducing

the war efforts of Morelia.

It is submitted that the attack was directed towards the Telcom Tower on Bindu Peak and the

consequential damage that occurred to the historical monument occurred as collateral

damage. The attack ordered by Jimba was solely towards the Telecom tower and possessed

no intention of military advantage or pre conceived notion towards the destruction of the

natural environment.

3.2.2. The perpetrator did not intentionally direct an attack towards Sachu
Ticchu as an objective.

Military necessity admits all direct destruction of life or limb of ‘armed’ enemies, and other

persons whose destruction is incidentally ‘unavoidable’ in the contests of war.72 Further, in the

immediate neighbourhood of operations, the bombardment of buildings is legitimate provided

that the military concentration is sufficiently important to justify such bombardment.”73 In cases

of air warfare the destruction of the natural environment wantonly is prohibited.74

3.2.2.1. That no reasonable action to distinguish between military objective and

the natural environment was possible.
Due to the location of the telecom tower on the peak it was indistinguishable with the

surrounding natural environment during an attack. The attack occurred from above and due

70 ICRC, art. 24 Geneva Convention, Commentary on General Protection of Civilian Objects, 1987 p.631.
71 International Committee of the Red Cross, Draft Rules for the Limitation of the Dangers incurred by the Civilian
Population in Time of War, 1956.
72 Lieber Code, Art. 15, April 24, 1863.
73 Hague Rules of Air Warfare, Art. 24(4), May 22, 1923.
74 HPCR Manual on International Law Applicable to Air and Missile Warfare, Rule 88, January 21, 2013.

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to its nature, the consequential destruction of the surrounding environment could not have

been avoided.

3.5. President Jimba is not individually criminally responsible under Article 25 of

the Rome Statute
As aforesaid, Article 25 of the Rome Statute ascribes individual liability when there is either

commission of a criminal act75 or order or solicitation for committing such act76 or abetment or

aid in any other kind for the commission of the crime.77 Crime responsibility can be

establishment in cases of direct perpetration, co perpetration and perpetration by means.78

President Jimba’s order spanned directly to the ‘neutralization” of the Bindu Telecom Tower’

and specified nothing else. Following the definition of direct perpetration, co-perpetration &

Perpetration by means President Jimba neither directly took part in the mission nor was

present at the command center. The consequential damage that occurred is seen through the

‘collateral damage’ waiver under Article 4(2) of the The Hague Convention for the Protection

of Cultural Property in the Event of Armed Conflict.79

The lack of any direct order towards the destruction of the cultural property shows the non-

existence of intention. The mission took place solely for military purposes.

3.6. Liability to protect cultural property under the Hague Convention.

The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict

provides for an exception to the treaty obligations under Article 4(2) during events of military

necessity.80 Further, Article 4(1) provides that High Contracting Parties undertake to respect

cultural property situated within their own territory as well as within the territory of other High

Contracting Parties by refraining from any use of the property and its immediate surroundings

or of the appliances in use for its protection for purposes which are likely to expose it to

75 Rome Statute of the International Criminal Court, Article 25(3)(a), July 1, 2002, 2187 U.N.T.S. 90.
76 Rome Statute of the International Criminal Court, Article 25(3)(b), July 1, 2002, 2187 U.N.T.S. 90.
77 Rome Statute of the International Criminal Court, Article 25(3)(c), July 1, 2002, 2187 U.N.T.S. 90.
78 Rome Statute of the International Criminal Court, Article 25(3)(a), July 1, 2002, 2187 U.N.T.S. 90.
79 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, art. 4(2), 14 May 1954.
80 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, art. 4(2), 14 May 1954.

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destruction or damage in the event of armed conflict; and by refraining from any act of hostility,

directed against such property.81

It is submitted that Morelia has directly disregarded its treaty obligations by place lines of

military lines of communication on a cultural heritage exposing it to possible harm during an

armed conflict. The destruction of the peak itself is seen as an imperative military necessity.

COUNT 4

4. PRESIDENT JIMBA BEARS NO CRIMINAL RESPONSIBILITY FOR THE CRIME OF VIOLENCE TO LIFE
AND PERSON IN PARTICULAR CRUEL TREATMENT AND TORTURE UNDER THE ROME STATUTE.

4.1. That the Alleged War Crime of Violence to Life and Person is not Sufficiently
Established
4.1.1. That the act is not sufficient to qualify as a crime under Article 8(2)(c)(i).

The war crime of murder requires that a perpetrator killed or caused the death of one or more

persons as a result of actions or omissions.82 The perpetrator’s conduct must be a substantial

cause of death and the only reasonable inference from the evidence.83

The death of a Morelian Red Cross Covidender resulted from the bullet fired by the Zamorian

soldier who mistook the Red Cross Team as the ‘enemy’ believing that they were going to

cross the LoC. As a matter of fact, they had not realised that they had gone very close to the

LoC because of some confusion about the coordinates on their maps.84

4.1.2. That there was absence of Particular Mens Rea required for the
commission of the act.

The perpetrator only meant to keep peace at the LoC. When the Zamorian solider saw five or

six people walking towards the LoC. Believing that they were going to cross the LoC, he fired

a bullet aimed at one of the ‘enemies.’ The perpetrator was unaware that death would occur

in the ordinary course of events. The Zamorian authorities announced that the act was not

intentional, but a genuine mistake on the part of border patrol and that Zamoria did not want

81 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, art. 4(1), 14 May 1954.
82 Prosecutor v. Dario Kordic, Mario Cerkez (Appeal Judgement), IT-95-14/2, (ICTY 2004), ¶ 229.
83 Prosecutor v. Delalic (Trial Judgement), IT-96-21-T, (ICTY 2003), ¶ 424.
84 Fact Matrix ¶22.

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to escalate the situation into an armed conflict with Morelia. Therefore, the perpetrator did not

have intent to cause the death of the Morelian Red Cross Covidender.

The perpetrator did not intend to inflict severe physical or mental pain.85 They simply wanted

to neutralized the defence of the border which was located on the de facto line of control (LoC)

between PLA held area and the government-controlled area.86

4.2. Material Elements of the Crimes Alleged under Article 8(2)(c)(i) of the Rome
Statute is not established.
4.2.1. The conduct took place in the context of and was associated with an
armed conflict not of an international character.
International Armed Conflict (IAC) was defined in the Tadić case by the ICTY integrating IAC

with humanitarian law. The court stated it to be a conflict, not necessarily a war, where two

parties (governmental authorities and organized armed groups or between such groups) resort

to violence or armed force, it is an IAC.87 The definition has been expanded. An IAC is

between two or more states but participation of both governments is not necessary. Even only

a unilateral attack against a state even if the military can’t respond or doesn’t retaliate creates

an IAC since the attack is on the state.88

The attack by Zamoria is under the ambit of being classified as an IAC. President Jimba’s

order for ‘neutralization’ indiscriminately ignored the reasonable damage to the surrounding

cultural structures under any scenario. Further, given the fact that the Telecom Tower was

only partial used as PLA/PMA lines of communication and at no time was used to directly

facilitate the armed conflict denies it from having Military status. Therefore, an attack on a

frequently used civilian object, not directly used in hostilities, classifies it as an international

Armed Conflict.

85 Prosecutor v. Katanga (Trial Judgement), ICC-01/04-01/07-717 01-10-2008 1/226 VW PT (ICC 2008) ¶793
86 supra note 82.
87 Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, ICL 93 (ICTY 1999), ¶84.
88 ICRC, International Humanitarian Law and the challenges of contemporary armed conflicts in 2015, ICRC (10

December 2015), https://casebook.icrc.org/case-study/icrc-international-humanitarian-law-and-challenges-

contemporary-armed-conflicts-2015#challenges-2015-para29.

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4.2.2. President Jimba bears no criminal intention of cruel treatment

Jimba only intended to keep the safety of the ICRC members. In the Prlić and al. case, the

Trial Chamber stated that the mental element of this offense requires that the perpetrator acted

with the direct or indirect intent to commit cruel treatments.89 According to the Chamber in the

Limaj case, the perpetrator acted with the indirect intent to commit cruel treatments when he

was aware that cruel treatments would be the probable consequence of his conduct, and he

accepted that fact.90

President Jimba refused permission to ICRC to go to Papanoa region, in particular, the area

held by PLM/PLA, citing ‘imperative concerns of safety and security of ICRC staff’. The ICRC

refused to undertake vaccination in Zamoria unless it was given access to the entire country

including Papanoa. Jimba only intended to keep the safety of the ICRC members.91

4.3. President Hoban Boraman Jimba cannot be held Responsible for the Crime
Committed under Article 28(b) of the Rome Statute
4.3.1. Hoban Boraman Jimba does not have an effective command and control
over the perpetrators involved in the crimes.

Formal designation as a commander should not be considered as a prerequisite for command

responsibility to attach.92 Hoban Boraman Jimba was the President of Zamoria. However, he

was not the de facto military commander who had the “effective command and control”. Hoban

Boraman Jimba did not have an “effective command and control” over the Zamorian Border

Patrol unit in Garoway/LoC at the material time of the crime that required him being able to

issue orders which needed to be followed.93

Hoban Boraman Jimba did not execute any order that calls for the murder of the Morelian Red

Cross Covidender.

89 Prosecutor v. Jadranko Prlic (Trial Judgement) IT-04-74-T (ICTY 2013), ¶147.

90 Prosecutor v. Limaj (Trial Judgement) IT-03-66-T (ICTY 2005), ¶231.
91 Fact Matrix ¶19.
92 Prosecutor v. Mucic et. Al, (Trial Judgement), IT-96-21, (ICTY 1998), ¶370.
93 Prosecutor v. Blaskic, IT-95-14-A, Appeals Judgment (ICTY 2004), ¶¶69 and 399.

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The qualitative aspect of the superior-subordinate relationship, namely the effectiveness is

that Hoban Boraman Jimba must possess “the material ability to prevent or punish the material

conduct of her subordinates”.94

Hoban Boraman Jimba was the President who had “substantial influence” over Zamorian

Border Patrol unit, however he did not have the “material ability” to prevent/punish actions of

the perpetrator.

The indicators of effective control are a matter of evidence.95 In order to evaluate the

effectiveness of the commander’s control, it is hence necessary to look at the evidence

provided on a case-by-case basis.96

The Zamorian soldier acting without any orders by the President is evidence of disobedience.97

Therefore, Hoban Boraman Jimba lacks the effective control over the Zamorian Border Patrol

unit in Garoway/LOC.

4.3.2. President Hoban Boraman Jimba did not knowingly fail to prevent a crime

Liability for command responsibility only arises where the commander knew or should have

known of the commission of a crime.98

A superior cannot be asked for more than what is in his power, the kind and the extent of

measures to be taken ultimately depend on the degree of effective control over the conduct of

subordinates at the time the superior is expected to act.99

President Jimba was the Commander-in-Chief of the armed forces; however, he was not

involved in the detailed planning of the attack.

94 Prosecutor v. Mucic et al., Appeals Judgement, (ICTY 2001), ¶256.

95 Prosecutor v. Blaskic, Appeals Judgment, IT-95-14-A, (ICTY 2004), ¶69.
96 Prosecutor v. Mucic et al., Appeals Judgement, (ICTY 2001), ¶197.
97 Prosecutor v. Blaskic, Appeals Judgment IT-95-14-A, (ICTY 2004), ¶¶69 and 399.
98 Rome Statute of the International Criminal Court, Article 28(a), July 1, 2002, 2187 U.N.T.S. 90.
99 Prosecutor v. Orić (Trial Judgement) IT-03-68-T, (ICTY 2006), ¶328.

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He did not order any attack on the Covidender personnel. There is no such information and

intelligence report available for Hoban Boraman Jimba that would “put her on notice” with

regards to the attack.100

4.3.3. President Hoban Boraman Jimba did not knowingly fail to punish a crime

The more remote a commander is from the commission of the crime; the more indicia of

knowledge are required to establish knowledge.101

President Jimba cannot keep completely informed of the details of military operations of

subordinate so the prosecution has to prove knowledge.102

‘Knowledge’ means awareness that a circumstance exists or a consequence will occur in the

ordinary course of events.103

The knowledge of the alleged crime was not made known to her until or after the alleged war

crime charges were brought against her. Therefore, she did not knowingly fail to punish a

crime.

4.3.4. President Jimba didn’t fail to submit the matter to the competent
authorities

The duty to submit the matter to the competent authorities arises after the commission of

crimes. Such a duty requires the commander to take active steps in order to have the ability

to ensure that the perpetrators are brought to justice.104

President Jimba was not aware of the circumstances that exists at the material time in regards

to the alleged crime. He did not know that a war crime was alleged until or after the war crime

charges were brought against him. Therefore, there is no sufficient concrete and tangible

evidence available to justify further action by the Court.105

100 Prosecutor v Jean-Pierre Bemba Gombo, (Pre-Trial Chamber II) ICC-01/05-01/08-424 (ICC 2009) ¶434.
101 Prosecutor v. Naletilić, (Trial Judgement), IT-98-34-T, (ICTY 2003), ¶72.
102 Landrum, The Yamashita War Crimes Trial: Command Responsibility Then and Now, 149 Mil. L. Rev. 299

(1995).
103 Rome Statute of the International Criminal Court, Article 30(5), July 1, 2002, 2187 U.N.T.S. 90.
104 Prosecutor v Jean-Pierre Bemba Gombo, (Pre-Trial Chamber II) ICC-01/05-01/08-424 (ICC 2009) ¶442.
105 Rome Statute of the International Criminal Court, Article 17(2), July 1, 2002, 2187 U.N.T.S. 90.; Rome Statute

of the International Criminal Court, Article 19, July 1, 2002, 2187 U.N.T.S. 90.

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21ST HENRY DUNANT MEMORIAL MOOT COURT COMPETITION, 2022
 MEMORIAL for DEFENCE

PRAYER FOR RELIEF

For the foregoing reasons, the respondent respectfully requests this Honourable Court to

adjudge and declare that:

President Hoban Boraman Jimba does not incur any criminal responsibility, whether individual

or superior, for war crimes, and all of the charges in the indictments against the accused

should be dismissed without confirmation.

All of which is humbly prayed and submitted.

IN A RESPECTFUL SUBMISSION BEFORE THE INTERNATIONAL CRIMINAL COURT

COUNSELS ON BEHALF OF HOBAN BORAMAN JIMBA

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21ST HENRY DUNANT MEMORIAL MOOT COURT COMPETITION, 2022