INTERNATIONAL HUMANITARIAN LAW

INTERNATIONAL CRIMINAL COURT

MEMORIAL FOR THE PROSECUTOR

WALLAGA UNIVERSITY, SCHOOL OF LAW

The case between Xali government, HUMX and organized armed groups(ZUZUfighters)

Name ID Number

1. Gemechis kadim 1304708

2. Hinsermu Mohammednur 1304760

3. Sabit Abdurezak 1305414

4. Nuredin shafi 1305858

5. Firaol Girsha 1304825

6. Yusuf Ahimed 1305915

7. Abraham safina 1304606

8. Lenco zewudu 1501888

GROUP SIX (6)

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.I. PRELIMINARY MATTERS

1. Nature of Conflict

1.1 There was a non-international armed conflict (NIAC) between the Xali
government, HUMX and the ZUZU fighters armed group.

In this case, the type of armed conflict is a non-international armed conflict. This is
because the ZUZU fighters are a non-governmental armed group that operates within
the territory of Xali, a state, and receives support from Lida, another state. The ZUZU
fighters are not acting on behalf of Lida, nor are they under its effective control.
Therefore, they are not considered as a party to an international armed conflict between
Lida and Xali. Rather, they are a party to a non-international armed conflict against Xali,
the state in which they operate

NIACis a “protracted armed violence … within a State.”1 Two thresholds regarding

the level of organization of the armed group and the intensity of the conflict
must be met.2

1.1.1 Both parties possessed the requisite organization.

The existence of “command structure” and “internal rules,” the ability to “recruit
new combatants” and “undertake organized military operations,” and “issuance of
political statements” are indicators of organization.3 One of the parties is the Xali
government. The other is the ZUZU militia led by General Diki, which was able to
recruit, undertake military operations, and issue political statements.4

1.1.2 The conflict between the two parties met the requirement.

1
Tadic, Appeals Chamber, Decision on the Defence Motion or Interlocutory Appeal on Jurisdiction, IT-94-1-AR72,
(2Oct1995) para.70.
2
Ibid, Trial Chamber, IT-94-1-T (7May1997) para.562.
3
Limaj et al., Trial Chamber, IT-03-66-T (30Nov2005) paras.90, and 90-134; Boskoski & Tarculovski, Trial
Chamber II, IT-04-82-T (10Jul2008) paras.194-206.
4
Facts, paras.15, 16, and 17.

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According to Limaj case, “length of the conflict,” “existence of casualties,” “nature
of weapons used,” and “increase in the number of armed forces” demonstrate
intensity.5 The war between the two parties existed from the attack against Xali by the
ZUZU fighters in 16 March 2019,6 During the time, the attack led to over 50 of
casualties and 120 displaced. Accordingly, the intensity of the conflict met the
relevant requirements.

II. PLEADINGS

COUNT 1: GENERAL DAKI BEARS CRIMINIAL RESPONSIBILITY FOR THE WAR

CRIME OF EXCESSIVE INCIDENTAL DEATH, INJURY,OR DAMAGE.

1. The ZUZU armed group and Sidra youth fighters that mingled with ZUZU committed
the war crime of excessive incidental death, injury, or damage. All elements of
crime under Article 8(2)(e)(i) are fulfilled.

1.1 The ZUZU fighters and Sidra youth fighters launched attacks. “Attacks” are
defined as “acts of violence against the adversary whether in offence or in
defence”.7 The ZUZU launched an attack on Xali that destroy the military unit in
Dansa.

1.2 The attacks caused excessive death and damages in comparison with the concrete
and direct overall military advantage anticipated.

Excessiveness lies in the balance between the foreseeable8 military advantage and
expected collateral damage.9 Advantage must also be substantial and relatively
close, not determined by long-term planning.10 The military advantage of Operation

5
Limaj et al., paras.90, and 134-167.
6
Facts, para.16.
7
Additional Protocol I (API), Art.49; Kordic and Cerkez, Appeals Chamber, IT-95-14/2-A (17Dec2004) para.47.
8
Elements of Crimes (EOC), footnote 36.
9
API, Arts.51(5)(b) and 57(2)(a)(iii), (b).
10
Commentary on the Additional Protocols to the Geneva Conventions, ICRC, para.2209.

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ZUZU fighters anticipated the neutralisation of the military facilities listed.11 The
collateral damages to civilians include at minimum 50 deaths and 120 displaced,
with additional property damage to civilian objects(Museum) in residential areas.12 The
damage by far outweighs the military advantage anticipated.

1.2.1 The indiscriminate attack on the local government office having meeting hall
caused excessive incidental civilian loss.

Indiscriminate attacks include those that 1) are not directed at a specific military
objective; 2) employ a method or means of combat which cannot be directed at
a specific military objective; or 3) may be expected to cause incidental loss of
civilian life, injury to civilians, damage to civilian objects, which would be excessive in
relation to the concrete and direct military advantage anticipated.13

As for the prospect of the local government office being used to make an
effective contribution to military action, it shall be presumed not to be so used.14 Even
so, the attacks were unlawful as they were conducted using indiscriminate means or
methods of warfare in such a way as to cause indiscriminate damage to civilians.15

The ZUZU fighters and the sidra were obliged to take all feasible precautions to
give effective warning in advance16 or take into consideration the choice of means
to minimize the incidental loss. The local government office indicated the presence
of civilians, and no warning was given, nor was there consideration for cancelling
the attack. They also failed to employ means and methods of attack17 And The
attacks were expected to cause incidental loss of civilian life and damages to civilian
11
Facts, paras. 15-17
12
Ibid, paras. 15, 16 and 17
13
API, Art.51(4)(a), (b) and (5)(b).
14
Galic, Trial Chamber, IT-98-29-T (5Dec2003) para.51; API, Art.52 (3).
15
Zoran Kupre {ki} et al., Trial Chamber Judgement, IT-95-16-T (14 Jan 2000) para. 524.
16
APII, Art.57(2)(c).
17
APII, Art.5(2)(a).

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objects.

1.2 General Daki knew that the attack would cause incidental death or injury to
civilians or damage to civilian objects which were clearly excessive in relation to
the concrete and direct overall military advantage anticipated.

The superior knew or had reason to know that the subordinate was about to
commit such acts.The knowledge of the possible collateral damage requires value
judgements based on requisite information available18 General Daki was conscious
of civilian presence in the near local government office and the dense population
around this office. As a “reasonably well-informed person in the circumstances of
the actual perpetrator,” Daki “could have expected excessive civilian casualties,”19 and
thus launched the attacks “wilfully and in knowledge of circumstances giving rise
to the expectation of excessive civilian casualties.20

INDIVIDUAL CRIMINAL RESPONSIBILITY

The Accused aided, abetted or otherwise assisted with the commission of the crime.

The Appeal Chambers considers ‘aiding’, ‘abetting’ and ‘otherwise assisting’ as a single
mode of liability.21 The actus reus under Art.25(3)(c) is fulfilled. when the person’s
assistance facilitates or furthers the commission of the crime, it need not be a conditio
sine qua non or have a substantial effect on the principal offence’s commission.

By directing attacks launched against a local government office having meeting hall
where military and police officials conducted their weekly security but the attack
indiscriminately caused excessive death of 50 civilian and 120 displaced.22

18
EOC, footnote 37.
19
Facts, paras.15-17
20
Art.85(3)(b); Customary IHL Study, Rule 156.
21
Prosecutor v Bemba et.al (AC-8/03/2018)-§1325.
22
Facts- paragraph 14 15 and 16

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The Accused was aware that attack against civilians would occur in the ordinary course
of events.

The Accused must at least be aware that attack against civilians will occur.23 Although
the Accused must be aware of the essential elements of the crime, i.e. the type of
crime, she did not need to know all the details and factual circumstances of the Attack.24
The intent may be established from the circumstances, including her prior behaviour.

The Accused was aware that an attack against civilians would occur: the ZUZU fighters
and Sidra youth fighters that commanded by General Diki was aware the attack against
civilians would occur when conducting the attack against local government office.

COUNT 2: GENERAL DAKI IS LIABLE FOR COMMITTING THE ATTACK ON A NINKA

MUSEUM WHICH IS A PROTECTED CULTURAL PROPERTY.

General Daki should be individually responsible for committing a war crime under
Article 8(2)(e)(iv) of the Rome statute by co-perpetration.

A. THE DEFENDANT SHOULD BE TRIED FOR ATTACKING A HISTORIC MONUMENT

CONTRARY TO ARTICLE 8(2)(e)(iv)

1. The defendant intentionally directed an attack against the Memorial

An attack designed to dismantle the Museum constitutes an attack under the rules
on the conduct of hostilities25. The action of ZUZU fighters to dismantle or destroy the
Ninka Museum registered as world heritage by UNESCO constitute the accused
intended to cause destruction on the Museum. Which are believed by the ZUZU
fighters to depict story of dominance of the Qento ethnicity.

23
RS-Art.30(2)(b).
24
Prosecutor v Karera (AC-2/02/2009)-§321/(n81)-Bemba-§98.
25
ICRC, International Humanitarian Law and the challenges of contemporary armed conflicts, December 2015,

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2. The museum was a historic monument

"Historic monument" could be evidenced by its role in the local cultural life.26
Also, such "cultural property" should be greatly important to the cultural heritage
of every people.27 Deposited quantities of priceless artefacts, e.g. the variety of
items of historic and cultural value in the museum had played a significant role for
the whole Xali population. Thus the Museum28 was a cultural property, as a historic
monument.

3.The Museum was not a military objective

Two criteria must be met to qualify a object as a military objective.29

It has to make an effective contribution to military action by its nature, location,

purpose or use.30 These four elements refer to intrinsic military character, position
in the area that is a legitimate target, the enemy's intended future use and the
current military function.31 The Museum had merely been the site for variety of
items of historic and cultural value ,failing to meet the above requirements. Thus no
contribution had the museum made to the military operation.

Simultaneously, its destruction, capture or neutralization must offer a definite

military advantage in the circumstances ruling at the time.32 Accordingly, it is not
legitimate to launch an attack that only offers a potential or indeterminate
advantage.33 Nevertheless the destruction of Museum were considered by ZUZU

26
ICC, Prosecutor v Ahmad, Judgemwnt, ICC-01/12-01/15, 27 September 2016, [46]
27
Convention for the Protection of Cultural Property in the Event of Armed Conflict(1954), Art 1.
28
Facts, [15].
29
Nils Melzer, International Humanitarian Law: A Comprehensive Introduction(2016), 92.
30
AP I, Art 52.
31
Marco Sassòli et al., How does law protect in war (Vol 1, 3rd Edn), Part I Chapter 9, 5.
32
AP I , Art 52.
33
Commentary on AP I, 1987, [2024].

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fighters to depict story of dominance of the Qento ethnicity.which cannot be used as
a legitimation for any targeting decision.

4.The perpetrator knew the Museum is cultural property, not a military objective

The perpetrator merely needs to know the factual circumstances, instead of

making a legal assessment of the protected status.34 Within the attacking plan,
the Museum must have been investigated by the ZUZU fighters. Besides, massive
artefacts greatly mattering to the Xali nation were deposited within the centuried
Memorial,35 whose unique cultural and historical character was a matter of
renown. Hence the defendant's awareness could be inferred.

INDIVIDUAL CRIMINAL RESPONSIBILITY

The Accused aided, abetted or otherwise assisted with the commission of the crime

The Appeal Chambers considers ‘aiding’, ‘abetting’ and ‘otherwise assisting’ as a single
mode of liability.36 The actus reus under Art.25(3)(c) is fulfilled. when the person’s
assistance facilitates or furthers the commission of the crime, it need not be a conditio
sine qua non or have a substantial effect on the principal offence’s commission.

By commanding ZUZU fighters to dismantle the Ninka Museum, registered as world

heritage by UNESCO which is believed by the ZUZU fighters to depict story of
dominance of the Qento ethnicity. The Accused aided or assisted the commission of
the crime.37

The Accused was aware that attack against Museum would occur in the ordinary course
of events.

The Accused must at least be aware that the actions of dismantle of Museum will

34
Mark Klamberg(ed), Commentary on the Law of International Criminal Court(2017), 90
35
Facts, [15].
36
Prosecutor v Bemba et.al (AC-8/03/2018)-§1325.
37
Fact paras.15

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occur38 Although the Accused must be aware of the essential elements of the crime, i.e.
the type of crime, she did not need to know all the details and factual circumstances of
the crime. The intent may be established from the circumstances, including her prior
behaviour.

COUNT 3: PRESIDENT LIMA COMMITTED THE WAR CRIME OF INTENTIONALLY

DIRECTING ATTACKS AGAINST MEDICAL TRANSPORT AND PERSONNEL

1. President Lima's committed the crime of attacking against medical transport.

1.1 XDF attacked medical transports. Medical transports “must not be attacked or
their passage arbitrarily obstructed".39 Even though there was suspect that medical
transports were for military use, they “shall be presumed not to be so used.40
Under the central command, XDF members destroy the training unit of ZUZU fighters
and also had a spin off destroying an ambulance operated by PNP, an NGO It was
reported 12 medical persons died during the attack.

I. PRESIDENT LIMA BEARS INDIVIDUAL CRIMINAL RESPONSIBILITY FOR SOLICITING

THE WAR CRIME OF ATTACKING PROTECTED OBJECTS

1. The Xali Defense Force committed the war crime of attacking protected
objects. All elements of the crime under Article 8(2)(e)(ii) are satisfied.

1.1 The XDF launched an attack.

The XDF attacked and caused damage to a civilian object which, as a protected
object,41 was clearly identified and recognized by both parties

1.2 The object of the attack was one of medical units and personnel

38
RS-Art.30(2)(b).
39
Military manuals of Germany, South Africa and Switzerland.
40
AP I, Article 52(3).
41
GCI, Arts.19 and 56(2); API, Art.21.

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It is prohibited to attack fixed establishments of Medical units42 and personnel.
Ambulance operated by NGO has long been recognized as a medical facility in
Panda and was used for medical functions by NGO. XDF should guards were
necessary to protect the medical units and personnel.

In case of doubt as to whether an object which is normally dedicated to civilian

purposes, is used for military purpose, it shall be presumed not to be so used,43
and the status of the medical units and personnel as a protected object remains.
Alternatively, if the Ambulance was used for military function, a warning and a
time-limit should be given before the protection ceases, which the Xali Defense Force
failed to achieve.

1.3 The attack was intended to be carried out on a non-military objective.

The Xali Defense Force supported with technology and intelligence by the MSF. A
defense force of a technologically advanced state of Mobi. XDF launched an attack on
Panda using drones Specifically destroyed the training unit of ZUZU fighters and and
destroy an ambulance operated by PNP. 12 medical personnel were killed during the
attack. The medical units and personnel was intended as the object of the attack.

2. President Lima bears individual criminal responsibility for soliciting the commission
of the war crime.

Soliciting means “urging, advising, commanding, or otherwise inciting another to

commit a crime.”44 As general commander of XDF president lima was in a position
of authority to convince another to commit an offence.45 His XDF had an implicit
intent to violently eliminate the enemy soldiers in the training center zone. Lima
reminder to the XDF commander suggests that he incited an act of violence against a

42
GCI, Art.19.
43
API, Art.52(3).
44
Blacks Law Dictionary, 9th, ed., 2009.
45
Stakic, para.445; Krstic, Trial Chamber,IT-98-33-T (2Aug2001) para.601.

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protected object “with the awareness of the substantial likelihood that a crime will be
committed in the execution of that order.”46 Knowledge of the situation suffices for
the imposition of criminal responsibility for soliciting the commission of the crime.

II. PRESIDENT LIMA BEARS CRIMINAL RESPONSIBILITY FOR THE WAR CRIME OF
VIOLENCE TO LIFE AND PERSON, IN PARTICULAR CRUEL TREATMENT AND TORTURE
OF CAPTURED ZUZU FIGHTERS..

1 Xali government inflicted severe physical and mental sufferings to the detainees.
According to UN Human Rights Committee, “summarily executions” and “the
detention of a person in inhumane conditions” are listed as examples of severe
sufferings.47 Treatment in detention facilities operated by xali government, were
comparable with those above.

1.2 The people detained ZUZU fighters were hors de combat. The victims of severe
physical and mental sufferings were in hand of xali government by detention, and
lost ability to take part in the hostilities. These people “in hand of an adverse
party” were hors de combat.48

1.3 The conduct took place in the context of and was associated with NIAC. The
non-international armed conflict (NIAC) between xali government and ZUZU fighters
commenced in 16 March 2019. With shootouts increasing to large-scale clashes
and resulting in heavy casualties, the intensity of the conflict reached the
“protracted” requirement49 and both parties possessed “the requisite organization”,50
for XDF is the governmental forces while ZUZU is able to arm itself, and
supported by Lida government and issue political statements. Thus the conduct
46
Kordic and Cerkez, note 8, para.30; Blaskic, Appeals Chamber, IT-95-14-A (29Jul2004) paras.41-42; Limaj et
al., para.515; Bradjanin, para.270.
47
Aydin v. Turkey, Report of Judgements and decisions, ECtHR, 1997-VI, [84]; Greek case, Yearbook of the
convention on Human Rights, ECiHR, p.461.
48
AP I, Article 41.
49
Prosecutor v. Tadic (Decision) (1995 Appeals Chamber), IT-94-1-AR72, [70].
50
Prosecutor v. Tadic (Judgement) (1997 Trial Chamber), IT-94-1-T, [562].

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took place in the context of NIAC.

2. President Lima bears superior responsibility for the war crime of violence to life
and person, in particular cruel treatment and torture.
2.1 A superior-subordinate relationship existed. Superior-subordinate relationship
exists when a person is in “formal status” or in “effective authority and control” as
a military commander.51 Appointed the Executive Commander in Chief of XDF, lima
was a military commander in charge of FAF and DAD. President Lima strengthened
his “effective authority and control” over XDF through the liaisons officers. This
demonstrates the existence of superior -subordinate relationship.

2.2 The superior knew or had reason to know that the subordinate was about to
commit such acts President lima. did know the cruel treatment and torture
prevalent among the detainees, since in lima official statement he excused the
civilian casualties to their connection with XDF, and he tacitly consented to the
cruel treatment, “given the multiple threats to national security.52

2.3 The superior failed to take the necessary and reasonable measures to
prevent such acts or to punish the principal perpetrators. Based on his knowledge
of such commission, nothing was done to fulfill his commitment to “ensure that
persons detained would receive a fair treatment” or to prevent the commission of
crimes. The report published by GSP. International human rights organization and
ICRC gave rise to an obligation to submit the matter to the competent authorities
for investigation and prosecution, which President Lima also failed to do. He also
failed to carry out his obligation “to punish the perpetrator after having learned that
the offence was committed”53

COUNT 4. BRIGADIER GENERAL COSTA AS THE FORCE COMMANDER OF THE HUMX

COMMITTED THE WAR CRIME OF INTENTIONALLY DESTROYED THE PROPERTY OF AN

51
Prosecutor v. Delalić (Judgment) (1998 Trial Chamber) IT-96-21-T, [370].
52
Facts, [18 and 19].
53
ICTYSt, Article 7(3).

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ADVERSE WITHOUT DEMANDED BY THE NECESSITY OF THE CONFLICT.

Brigadier General Costa, as the Force Commander of the Holu Union Mission in Xali
(HUMX), is charged with the war crime of intentionally directing attacks against objects
indispensable to the survival of the civilian population, namely the destruction of a
bridge connecting Kaki with Lida, which was used by pastoralist communities during
drought seasons for obtaining pasture and drinking water for their cattle. This act
constitutes a violation of Article 8(2)(e)(xii) of the Rome Statute54, which prohibits the
destruction or seizure of the property of an adversary unless such destruction or seizure
is imperatively demanded by the necessities of the conflict.

I THE DESTRUCTION OF THE BRIDGE IS NOT IMPERATIVELY DEMANDED BY THE

NECESSITY OF THE CONFLICT

To say the destruction of the bridge is imperatively demanded by the necessities of the
conflict the destruction should has destructive military advantage anticipated. In fact
the destruction of the bridge linking Dansa and Lida state has not any military
advantage anticipated to the HUMX Forces.55 And the destruction of the bridge is not
imperatively demanded by the necessitie of the conflict

II BRIGADIER GENERAL COSTA BEARS INDIVIDUAL CRIMINAL RESPONSIBILITY FOR

SOLICITING THE COMMISSION OF THE WAR CRIME

Soliciting means “urging, advising, commanding, or otherwise inciting another to

commit a crime.”56 As general commander,57 Brigadier General Costa was in a
position of authority to convince another to commit an offence.58 His HUMX forces
has the intent to violently destroy the bridge linking Dansa and Lida brigadier General

54
Judge Piotr Hofmański - International Criminal Court
55
Fact no 20
56
Blacks Law Dictionary, 9th, ed., 2009.
57
Fact paras.20
58
Stakic, para.445; Krstic, Trial Chamber,IT-98-33-T (2Aug2001) para.601.

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Costa reminder to the HUMX commander suggests that he incited an act of violence
against a property of an adversary without demanded by the necessitie of the conflict
“with the awareness of the substantial likelihood that a crime will be committed in the
execution of that order.”59 Knowledge of the situation suffices for the imposition
of criminal responsibility for soliciting the commission of the crime.

PRAYER

The Prosecution respectively requests this Honourable Court to adjudge and declare
that General Daki is criminally responsible under the Rome Statute for: War
crimes under Article 8(2)(e)(i), 8(2)(e)(iv), 25(3)(c).

President lima is criminally responsible under the Rome Statute for: War crimes under
Article 8(2)(e)(ii), 25(3)(b)

Brigadier General Costa is criminally responsible under the Rome Statute for: War
crimes under Article 8(2)(e)(xii), 25(2)(b).

Respectfully submitted,

The Prosecution

59
Kordic and Cerkez, note 8, para.30; Blaskic, Appeals Chamber, IT-95-14-A (29Jul2004) paras.41-42; Limaj et
al., para.515; Bradjanin, para.270.

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