MOOT COURT COMPETITION VIETNAM INTERNATIONAL COMMITTEE OF THE RED CROSS THE CASE CONCERNING PROSECUTOR MR. TONY GUSMAN

Transcription

1 THE 2 ND INTERNATIONAL HUMANITARIAN LAW MOOT COURT COMPETITION VIETNAM INTERNATIONAL COMMITTEE OF THE RED CROSS HO CHI MINH CITY, 29 TH 31 ST OCTOBER 2014 THE CASE CONCERNING PROSECUTOR V. MR. TONY GUSMAN HO CHI MINH CITY UNIVERSITY OF LAW FIRST COUNSEL: LE NGOC BAO TRANG SECOND COUNSEL: TRAN BICH NGOC MEMORIAL FOR THE PROSECUTOR TEAM B1 (P) WORDS COUNT: 1621 (All articles herein refer to the Rome Statute of the International Criminal Court unless otherwise stated.)

2 TEAM B1 (P) 2

3 PLEADINGS I. ADMISSIBILITY Under Article 5(1)(c), the International Criminal Court ( ICC ) has jurisdiction over the suspected war crimes. Moreover, the case against Mr. Tony Gusman ( Gusman ) before the ICC is admissible under Article 14 as Astro and Bereto agreed to jointly refer the situation of Yukule to the ICC. 1 1 Moot Problem, para. 44, lines

4 II. TYPE OF ARMED CONFLICT, APPICABLE LAW AND BELLIGERENT NEXUS 1. The international armed conflict ( IAC ) between Astro and Bereto commenced on 4 February 2008, particularly in the Yukule Archipelago ( Yukule ) In Lubanga case, the ICC held that an IAC takes place between two or more States. 2 Hence, the armed conflict arose between Astro and Bereto is IAC. In Hague Convention, a territory is considered being occupied when it is actually placed under the authority of the hostile army. 3 The Archipelago was occupied under the control of Astro since Astron Armed Force s ( AAF ) invasion on 4 February International humanitarian law ( IHL ) applies even if the said occupation meets with no armed resistance 5 and people are fighting against colonial domination and alien occupation. 6 In this case, the AAF invaded Yukule without any armed resistances; 7 the condition of occupation in Yukule was therefore satisfied for an Occupying Power. Furthermore, inhabitants and the remaining members of the Bereton armed and police forces on the island formed a resistance militia, led by Colonel Spartan from Bereton army, used guerilla tactics, including laying improvised explosive devices along the main road of the island. 8 Those acts of the resistance militia on the Yukule Island were used to fight the alien occupation in Yukule Island Astro. When an armed conflict occurred, the territory will be determined in the whole territory of the warring States. 9 Based on the determination of the ICC, the territory in this armed conflict must be the Archipelago and the whole territory of Bereto. 2. Applicable law IHL applies in IAC, 10 excluding Common Article 3 of the Geneva Conventions ( GCs ) and Additional Protocol II. Besides, United Nations Convention on the Prohibition of Military or 2 ICC, Prosecutor v. Lubanga, ICC-01/04-01/ (14 May 2007), para International Conference (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land ( The Hague ), 18 October 1907, Art Moot Problem, para. 6, lines International Committee of the Red Cross (ICRC), Geneva Conventions ( GCs ), 12 August 1949, Common Art.2. 6 ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) ( AP I ), 8 June 1977, 1125 UNTS 3, Art Moot Problem, para. 6, lines Moot Problem, para. 7, lines ICC, Prosecutor v. Lubanga, ICC-01/04-01/ (14 March 2012), para GCs, Common Art. 2. 4

5 Any Other Use of Environmental Modification Techniques ( ENMOD ) and the United Nations Convention on the Law of the Sea ( UNCLOS ) are also applied. 3. The nexus between the offences charged and the IAC existed The nexus existed where the armed conflict played a substantial role in the perpetrator s decision, in his or her ability to commit the crime. 11 The acts of Gusman regarding oil spills and oil fires with target were taken in response to the advancement of Bereton Navy to recapture Yukule. 12 Here, Gusman s acts caused a major effect on the massive reef habitation offshore Yukule The awareness of Gusman in factual circumstances In Katanga case, the ICC held that the leader of the military group as a party of the armed conflict was fully aware of the existence of the armed conflict. 14 Here, Gusman was the Commander-in-chief of the AAF; 15 hence, he was aware of the factual circumstances of the armed conflict. 11 ICC, Prosecutor v. Lubanga, ICC-01/04-01/06 (14 May 2007), para Moot Problem, para. 36, lines Moot Problem, para. 41, line ICC, Prosecutor v. Katanga, ICC-01/04-01/07 (30 September 2008), paras Moot Problem, para. 2, lines

6 III. SUBSTANTIVE CRIME Gusman is criminally responsible for ordering the war crime of excessive incidental damage under Article 8(2)(b)(iv) a. Captain Ardent and his troops committed the war crime of excessive incidental damage The principle of proportionality 16 prescribes that belligerent parties in war do not inflict collateral damage that is excessive in relation to the military advantage with any hostile action. 17 Respect for the environment is in conformity with the principles of necessity and proportionality. 18 i. Captain Ardent and his troops launched an attack Attack means acts of violence against the adversary. 19 It has been accepted that violence is not of the means, but of the consequences. 20 The incident of oil spills and oil fires ruled out physical force; however, it evolved a massive impact on the natural environment: 21 thousands of birds found dead, marine turtles endangered, and a massive reef habitation affected as they were extremely susceptible to hydro carbon pollution. 22 Those are regarded as violent consequences. ii. The attack was disproportionate The attack caused widespread, long-term and severe damage to the natural environment Widespread is defined to encompass an area on the scale of several hundred square kilometers, long-term or long-lasting means lasting for a period of months, or approximately 16 AP I, Art. 51(5)(b); Art Janina Dill, Applying the Principle of Proportionality in Combat Operations, Policy Briefing, University of Oxford, December 2010, p ICJ, Nuclear Weapons case, para Rome Statute, Art Cordula Droege, Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians, International Review of the Red Cross, Volume 94, No. 886, p Moot Problem, para. 40, line Moot Problem, para. 41, lines

7 a season, and severe is described to involve serious or significant disruption or harm to human life, natural and economic resources or other assets. 23 Here, the United Nations Environment Programme (UNEP) conducted a research on the impact of the oil spills on the natural environment and concluded in January 2011 that they could have a major effect on the massive reef habitation in January Additionally, they brought about deaths of thousands of birds, 25 and endangered the marine turtles. 26 Moreover, the damage was publicized more than three months after the incident and still ongoing. According to prominent public health experts, the air and maritime pollution would kill approximately 800 Yukulers in the years to come. 27 Such damage was clearly excessive in relation to the concrete and direct overall military advantage anticipated To assess whether the damage is excessive compared with the military value, the following method of evaluation is taken into account: (i) establishing whether the weapon would cause the effects as a function of its design; (ii) weighing the military utility of the weapon against these effects; and (iii) determining whether the same purpose could reasonably be achieved by other lawful means. 28 According to United Nations Security Council, there had been wars using oil as a means of warfare, which caused serious damage to the natural environment and violated international law, for instance, the Iran-Iraq War of , the 1991 Gulf War. 29 Following these precedents, Captain Ardent ordered to release several million liters of oil into the sea regardless Conference of the Committee on Disarmament, Understanding relating to Article 1 of the 1976 ENMOD Convention, UN Doc. A/31/27, Moot Problem, para. 41, line Moot Problem, para. 41, line Moot Problem, para. 42, line Moot Problem, para. 42, lines Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, 2003, Cambridge University Press, p Iraq s inflicting environmental damage by causing oil spills and oil fires in Kuwait was condemned to violate international law, See UN Security Council, Resolution 687, 3 April 1991, para Moot Problem, para. 40, line 5. 7

8 Initially, his troops discharged oil to stall the enemy on the sea, 31 but the military objective was not accomplished. He continued to exploit oil to impede the enemy by causing oil fires, 32 even though there might have been different means to achieve the same purpose, such as the existence of a standing army the AMA preparing to defend Yukule. 33 The devastation resulted from the attack was therefore excessive regarding the military advantage anticipated. The feasible precautions were insufficiently taken during the attack With respect to attacks, certain precautions shall be taken: (i) taking all feasible precautions to avoid and minimize incidental damage; (ii) refraining any attack expected to cause excessive damage; (iii) giving effective warning of attacks if permitted; 34 (iv) endeavoring to remove the civilians and civilian objects; (v) avoiding locating military objectives within or near densely populated areas; and (vi) taking the other necessary precautions for the protected under other party s control against the military dangers. 35 Under UNCLOS, States bordering an enclosed or semi-enclosed sea should coordinate the implementation of their rights and duties with respect to the protection and reservation of the marine environment. 36 The first oil spill could not restrain the Bereton naval forces. 37 However, Captain Ardent continued to halt them by utilizing oil. 38 Nevertheless, no official warning was given prior to the attack, yet it was launched by the sea near Port Solferino, 39 the capital city of Yukule. 40 During the fire, only Astron soldiers retreated to the mainland. 41 iii. Captain Ardent knew that the attack would cause disproportion 31 Moot Problem, para. 37, lines Moot Problem, para. 39, lines Moot Problem, para. 7, line AP I, Art. 57(2). 35 AP I, Art UNCLOS, Art. 123(b). 37 Moot Problem, para. 38, lines Moot Problem, para. 39, lines Moot Problem, para. 39, lines Moot Problem, para. 6, lines Moot Problem, para. 39, line 6. 8

9 Knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. 42 Captain Ardent meant to take advantage of oil; therefore, he predicted the negative impact of such means of warfare to the natural environment. Hence, the attack was launched willfully and in knowledge of circumstances giving rise to the expectation of excessive civilian casualties. 43 iv. The conduct took place in an IAC Submitted in II.3. v. Captain Ardent was aware of the factual circumstances that established the IAC Submitted in II.4. Thus, Captain Ardent is criminally responsible for the war crime of excessive incidental damage. b. Gusman bears responsibility as an orderer under Article 25(3)(b) In Gbagbo case, the ICC upheld that an action of a perpetrator satisfying the hereafter actus reus and mens rea elements could be accused of criminal responsibility under Article 25(3)(b). i. Actus reus Actus reus requires: (i) the perpetrator was in position of authority, 44 (ii) the perpetrator instructed another to commit an offence, 45 and (iii) his instruction had a direct effect on the commission of the crime. 46 Gusman chaired the Crisis Military Commission, 47 which supervised the AMA in Yukule. 48 At the time being reported about the advancement of the Bereton Navy, 49 he had the 42 Rome Statute, Art. 30(3). 43 ICTY, Prosecutor v. Galić, IT T (5 December 2003), para Id. at Id. at ICC, Prosecutor v. Gbagbo, ICC-02/1-01/11 (12 June 2014), para Moot Problem, para. 2, lines Moot Problem, para. 7, lines Moot Problem, para. 36, lines

10 responsibility to give orders to his subordinates. 50 Moreover, after the instructions to resort to all resources available 51 and take all measures possible 52 to stall the enemy, one of Yukulean main resources oil, 53 was utilized immediately for Astron military purpose. ii. Mens rea Mens rea requires the perpetrator: (i) meant to instruct another to commit an offence; and (ii) was aware that the crime would be committed in the ordinary course of events as the consequence of his instructions. 54 Several pro-government magazines statements 55 along with Gusman s declaration via paper Hashtag Daily 56 indicated that he willfully let the attack be launched. Besides, his affirmation of the destruction of Yukule on the paper implied his negligence in the conduct of the attack as he strived to use the last resort in defense of Astron s sovereignty, despite the extensive destruction of Yukulean natural environment. Thus, Gusman has met the requisite elements of actus reus and mens rea. Consequently, Gusman is criminally responsible for ordering the commission of the war crime under Article 8(2)(b)(iv). 50 Moot Problem, para. 36, lines 3-4; para. 39, lines Moot Problem, para. 36, lines Moot Problem, para. 39, lines Moot Problem, para. 4, lines ICC, Prosecutor v. Gbagbo, ICC-02/1-01/11 (12 June 2014), para Moot Problem, para. 36, lines Moot Problem, para. 39, lines

11 PRAYER FOR RELIEF The Prosecutor respectfully requests the Honorable Court to confirm the charge of the war crime of intentionally launching an attack in the knowledge that such damage will cause widespread, long-term and severe damage to the natural environment against Gusman. Respectfully submitted, Prosecutor. 11