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2008 International Humanitarian Law Moot Court Competition, Memorial Of Iium

THE 5TH INTERNATIONAL HUMANITARIAN LAW
MOOT COURT COMPETITION
INTERNATIONAL COMMITTEE OF THE RED CROSS
KUALA LUMPUR, SATURDAY, 13TH – 14TH DECEMBER 2008
THE CASE CONCERNING

PROSECUTOR
v.
GENERAL BUTCHER
and
MAJOR GENERAL MARSHALL

Leading Counsel : Mahyuddin bin Daud
Junior Counsel : Marshila binti Mohtar

INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA (IIUM)

THE APPLICANT’S BRIEF
(All articles are herein referred to the Rome Statute of International Criminal Court unless otherwise stated)

TEAM 505A

STATEMENT OF FACTS
Suburbia and Megrisland are neighboring countries that thrives on common oil resources which has been gradually depleting. This strained their geopolitical ties.
Suvidesh is a province in Suburbia dominated by the Delphons whilst the Rumons are the minority. The Delphons were treated unfairly by Suburbian government causing them to feel discriminated. Consequently, Suvidesh Nationalist Alliance (SNA) was established by Mr. Butcher to liberate Suvidesh from the grasp of the Rumons.
Styling himself as General Butcher, military training was imparted to SNA members consisting of youths. He provoked the Delphons to eliminate all links they had with the Rumons and addressed them as enemies. Shortly, it was reported that Delphon youths killed as many men as they could catch and attacked unarmed women and children.
The liberation was later supported by Megrisland as one armed battalion was sent to help the SNA. Led by Major General Marshall, Megrisland forces attacked a 14th century Shrine and oil fields. Large numbers of people were killed since the attack caused fire to spread to nearby villages.
Sensing grave threat to international peace and security, UN Security Council issued resolution directing the parties to stop the hostility. As a measure to preserve justice, the Prosecutor of ICC hereby indicted General Butcher and Major General Marshall.
PLEADINGS AND AUTHORITIES

THE CONFLICT IN SUVIDESH BEFORE 1ST FEBRUARY 2007 CONSTITUTES AN INTERNAL ARMED CONFLICT AND NOT MERE DISTURBANCES
Internal armed conflict occurs when there is a protracted armed violence between governmental authorities and organised armed groups within a State. The situation in Suvidesh amounts to an internal armed conflict as the two elements to prove the existence of a protracted armed violence is established.

a) The conflict in Suburbia was intense and not merely isolated sporadic acts of violence.
Intensity can be proven from circumstantial evidence and involvement of the United Nations’ Security Council (UNSC). GB imparted military and guerrilla warfare training to the SNA members who were responsible for the insurgency operations shortly after. The intensity of the conflict came to its climax when the Delphon youths killed as many as 500 Rumon men, women and children in Suvidesh pursuant to GB’s manifesto. Furthermore, the conflict was intense enough to involve the UNSC.

b) The SNA was an organised military group and not a random group of rioters
A group is organised if they have significant territorial control. As the SNA had conducted military trainings and meetings at several places, it is clear that they possess a significant territorial control over Suvidesh.

INDICTMENTS

1. GENERAL BUTCHER (GB) IS LIABLE AS A SUPERIOR FOR THE WAR CRIMES COMMITTED BY THE DELPHON YOUTHS UNDER ARTICLE 28 (A)
The Delphon youths committed war crimes of murder and attacking civilians . GB as a superior to the Delphon youths is subject to liability for their act. GB is a military commander and fulfilled the elements to impose liability.

a) There was a superior-subordinate relationship between GB and the Delphon youths
Relationship can be proven through effective command and control . GB’s effective control can be proven by his de facto and de jure authority . He was officially appointed and regarded as SNA’s leader by the members. Furthermore, his leadership was immensely influential amongst SNA members, prompting them to launch attacks against the Rumons. These facts prove his relationship and effective control over the Delphon youths.

b) GB had reasons to know about the crimes committed or about to be committed by them
Prior to the attack on 7th January 2007, leaflets and posters with caricatures portraying a group of people with swords and axes chasing other group consisting of women and children were distributed. This information was available to GB when the media asked him about the leaflets and posters. At this instant, GB had a duty to make additional investigation about the commission of the crimes. Failure to investigate cannot render a defense for GB to deny his knowledge . However, he failed to further investigate but instead encouraged the crimes to be committed. Thus, GB had reasons to know of the information about the crime committed or about to be committed by the Delphon youths.

c) GB failed to prevent and punish the Delphon youths
GB had effective command and control proving that he had the material ability to prevent and punish the commission of the crimes . However, GB after being informed did nothing to prevent them encourages the crimes to be committed by appreciating the spirit of the youth.

2. GB IS LIABLE FOR INCITING THE COMMISSION OF GENOCIDE UNDER ARTICLE 25 (3) (E)
GB is liable for inciting genocide even if the actual genocide did not materialize . Remarks made by GB fulfilled the elements required for liability.

a) The incitement was made publicly and directly
The incitement must be communicated to individuals in a public place and specifically urging another to take specific immediate criminal action. His manifesto urging the commission of genocide was publicly distributed to all his cadres of 12 member central committees and 1500 members of SNA. His message was filled with hatred and rage directing the Delphons to eliminate all links with Rumons ethnic.

b) The direct and public incitement was intentional
GB knew that he was acting publicly and intended to do so as the manifesto was distributed to all Delphons.

c) The incitement was made with intent to destroy a protected group in whole or in part
The intent to provoke another to commit genocide means the perpetrator and the incited persons have the intention to commit genocide. GB’s intent could be derived from the manifesto that he wanted to destroy an ethic group, the Rumons. The Delphons subsequently killed more than 1000 Rumons, indicating their genocidal intent.
Thus, GB had committed incitement to genocide.

3. GB IS LIABLE FOR ENLISTMENT OF CHILDREN UNDER ARTICLE 8 (2) (e) (vii)
GB is responsible for enlisting children under 15 years old by using them to participate actively in hostilities . The elements required are fulfilled

a) The perpetrator enlisted one or more persons to participate in hostilities
GB had instructed military training and guerrilla warfare techniques to a number of youth who joined SNA and is responsible for youths under SNY as he acknowledged their acts .

b) Such youths were under 15 years old.
GB is liable for enlisting persons under the age of 15.
c) The perpetrator has the knowledge of the youth’s age
GB should have known that the youngsters were under 15 years old as he denied the existence of the youth wing to deny responsibilities.

4. MAJOR GENERAL MARSHALL (MGM) IS INDIVIDUALLY LIABLE FOR CRIME OF ATTACKING PROTECTED OBJECT AND VIOLATED THE ROME STATUTE AND ADDITIONAL PROTOCOL 1 TO THE GENEVA CONVENTION 1949.

a) The internal armed conflict in Suvidesh was internationalized after 1st February 2007
An internal armed conflict may become internationalized when a conflicting party to the internal armed conflict acts on behalf of another State. Megrisland had endorsed SNA’s unlawful acts by sending a battalion under MGM to assist them. This amounts to involvement in the conflict. Thenceforth, it became an internationalized armed conflict.

b) MGM directed an unlawful attack at the Gopada Shrine which is a protected object
An attack was made by MGM’s troops causing forty percent damage to the front side of the Gopada Shrine . Gopada Shrine is a protected civilian object and cannot be attacked. Attack may only be directed against military objectives and not civilian objects. As a consequence, MGM had a duty to differentiate between civilian objects and military objects which he failed.

c) MGM intended the Gopada Shrine to be attacked
The mens rea required to incur liability is intention . MGM had a duty to cancel the attack but he clearly intended to attack the Shrine as it was a hideout for the Suburbian forces.

d) The attack on the Gopada Shrine was not justified by military necessity
Military necessity must exist together with the principle of proportionality. An attack becomes unlawful and disproportionate if it causes excessive damage to civilian objects. There was excessive damage done to the Shrine as more then forty percent of the shrine was destroyed. It is not proportionate compared to the main purpose of attacking the Suburbian forces.

5. MAJOR GENERAL MARSHALL IS INDIVIDULLY LIABLE FOR THE ENVIRONMENTAL DAMAGE CAUSED BY THE FIRING TOWARDS THE OIL FIELDS

MGM is prohibited to launch an attack knowing that such attack will cause widespread, long-term and severe damage to natural environment which would clearly be excessive and disproportionate in relation to the concrete and direct overall military advantage anticipated. MGM fulfilled all elements to incur liability

a) The attack caused excessive widespread, long-term and severe damage to the natural environment.

Excessive means disregarding the safety of the civilian population. MGM had the knowledge that the oil wells were located near a village but ignored them and continued attacking which caused excessive damage . UNEP and environmental experts’ reports showed that the fire would leave a severe damage for a long term in the area of both countries.

b) MGM knew that his act would cause such effect

MGM had a duty to make value judgment that the damage would be excessive based on the requisite information available to him at that time. MGM knowing the oil wells’ locations had the requisite information to judge that his attack would cause severe damage.

About the Author

Lecturer, Department of Law, Centre for Foundation Studies, International Islamic University Malaysia.

I may be reached at mahyuddin@iium.edu.my

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