Asia-Pacific Moot Court National Rounds 2011

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MOOT CHAMBER
______________________________________________________________________________
BEFORE THE MOOT JUDGE
______________________________________________________________________________
Moot Problem

PROSECUTOR,
Applicant.

v.

DAVID DABAR,
Respondent.
______________________________________________________________________________
ON WRITE OF CERTIOTARI TO IHL MOOT (2011)
Word Count: 1,997
______________________________________________________________________________
BRIEF FOR APPLICANT
______________________________________________________________________________
Counsel for the Prosecution
Hochul Jung & Seokyo Yoon
The Catholic University of Korea

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MOOT-NUMBER: IHLMOOT11-01





















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TABLE OF CONTESTS
I. INTRODUCTION ............................................................................................................... 3
II. STATEMENT OF FACT ..................................................................................................... 3
III. SUBMISSIONS ............................................................................................................... 4
A. CRIME AGAINST HUMANITY OF FORCIBLE TRANSFER ................................................. 4
B. WAR CRIME OF TAKING HOSTAGES ............................................................................. 5
C. WAR CRIME OF WILFUL KILLING ................................................................................ 7
IV. CONCLUSION ................................................................................................................ 9
______________________________________________________________________________

I. INTRODUCTION
1. Respondent, David Dabar, hereby files his pre-trial brief as confirmed by the Moot and
pursuant to Article 7(1)(d), 8(2)(c)(iii), and 8(2)(a)(i).
2. Now that, on behalf of the prosecutor, Applicant respectfully submits that the Moot will
hereunder examine this material provided by the Application in light of the specific elements to
determine whether there are issues considered for IHL and should confirm guilty.

II. STATEMENT OF FACT
3. Respondent, David Dabar as the leader of NDRA&NSA armed group, is jointly charged
with crimes allegedly committed between 3 February 2009 and 26 July 2009 against Lemi
civilians, perceived to be collaborating with the criminal enterprise in Rizoba/Losovo/Vanilia. It
is alleged that during the same period of armed conflict he committed forcibly displaced against
humanity, hostages-taking, and willfully killing the victims mentioned in the charges in order to
become consolidate overall control over the Losovo area for independence, (i.e.), National
Liberation Movement(N.L.M.)


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III. SUBMISSIONS
Count 1
A. Crime against humanity of forcible transfer
4. In Paragraph 10, Respondent intended to use the camp for make-shift to implement the
organizational policy as a part of forcible transfer against more 400 Lemi residents who, in
connection with such conflicts, were divided into two groups which were detained far part
degree impracticable restore contact between their families, from Rizoba to the camp on 12
February 2009.
5. In Paragraph 11, Respondent was aware of such circumstance in that he requested ICRC
visit to the camp and it offered services that NDRA to such conflicts with supervision to them
deprived of liberty for reasons related to racial separatism verified such conditions. Thus, he
should know official duty ICRC provided for himself.
6. In Paragraph 12, Respondent again deported them, whose intensity as mens rea should be
indentified in that the materials as arms were founded, which have established the existence of an
armed conflict since 3 February 2009.
i. WHETER THIS CRIME HAS MET THE actus reus ELEMENT(1)
7. The term forcibly may include threat of force or coercion such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power against such persons, or
by taking advantage of such coercive environment
1
.
ii. WHETHER THERE ARE LAWFULLY PRESENTS THAT actus reus HAVE MET
THE ELEMENTS(2,3)
8. In laid down the Customary Rule.124(B), the term lawfully present does not require
practical degree, but the condition to whether the victims restore contacts between their families.
In addition to the Conventions(III)[Art.9;125;126];Protocol(I)[Art.81], forcibly displaced is
indicated that all possible measures must be taken in order that civilians concerned are received

1
Foot.13,UNDoc.PCNICC/2000/1/Add.2(2000)

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under satisfactory conditions of safety and those members of the same family are not separated
under the supervision through ICRC visit. Thus, he should know official duty that the parties to
an armed conflict may not order the displacement of civilians, in whole or in part, for reasons
related to such conflict.
iii. WHETHER THERE ARE THE CRIMINAL JURISDICITIONAL REQUIREMENTS
THAT QUALIFICATION HAVE MET THE THRESHOLD ELEMENTS(4,5)
9. The intent clause indicates that mens rea is satisfied if Respondent intended to further
such an attack in that it should not be interpreted as requiring proof of mens rea in context of all
characteristic or the precise details of the policy of the organization. However, such policy
cannot be inferred solely from the absence of organizational action,
2
(e.g.), Yugoslav National
Army,
3
issuing of specific orders by the State, or its direction of each individual operation it
is sufficient that a state has a role in organizing, coordinating or planning the military actions of a
given non-state armed group.
10. Thus, his policy can commit a part of forcibly displaced in the context of attack directed
against Lemis in Paragraph 8 as well as the organization has been militant forms with arms in
Paragraph 6. Hereto these circumstances were not simple riot but N.L.M. that means different
movements or organizations, both legal and illegal, which has sought revolution or
independence, especially from colonial oppression. It is generally considered as military action
spreading armed conflict.
Count 2
B. War crime of taking hostages
11. In Paragraph 12, Respondent made detainees deploy human shield in order to defense,
even though Vanilia disputed arbitral award to the third party(Berryland) in order to prevent
armed conflict from spreading internalization. Instead, he threatened the victims to offense
against the government, although they sincerely did not want to take any active parts in the

2
Reference to P.8, UN Doc.PCNICC/2000/1/Add.2(2000).pdf
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Tadi Case, No.IT-94-1-T

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hostilities. Unless otherwise, such victims were threatened to kill, injured or continually detained
so that they might as well flee to other provinces again.
12. Pursuant to Applications paras.5,8,
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Respondent should know official duty as well.
iv. WHETHER REASONALBLE GROUND THAT THIS CRIME HAVE MET THE
actus reus ELEMENTS(1~5)
13. In laid down the Customary Rule.96;97, both hostage-taking and human-shield are not
only prohibited under IHL, but also the Protocol(I)[Art.49;51;52], in case of N.L.M., must not be
used to try to shield military objectives from attack or to shield, favor or impede military
operations. In addition, the Commons 3 protects those placed hors de combat or such civilian by
detention from taking no active part in the hostilities at the time such defense/offense, (e.g.),
hostage-taking is the use of a threat concerning detainees so as to obtain a concession or gain an
advantage.
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14. Instead, the power of his party compelling protected victims to serve in the armed forces
of a hostile power is not justified by military necessity and carried out on a large scale in an
arbitrary and unlawful way. Thus, mens rea of this crime are excessive in relation to the actual
and direct military advantage expected. If such advantage exceed appropriation, it is unfavorable
than N.L.M. justify his act with the right of Self-determination.
v. WHETHER THERE ARE THE CRIMINAL JURISDICITIONAL REQUIREMENTS
THAT QUALIFICATION HAVE MET THRESHOLD ELEMENTS(6,7)
15. In case of hostage-taking in context of N.L.M., it is understood that this crime comply
with the jurisdiction within IHL, both the two conflicts, although the 1979 UN Convention-
Against-the Taking of Hostages covers this crime for international terrorism,
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(i.e.), the
provision mutually considers this internationalized armed conflict through crime against
humanity as a non-international character through war crimes", with respect to frame work
under international law.

4
This document
5
Prosecutor v. BlaSkic,No.IT-95-14-A
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P.393,Prof.Younsuck Kim,International Law(2010),Parkyoungsa

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Count 3
C. War crime of wilful killing
16. In Paragraph 18, this method of combat employed is not direct or cannot be direct attacks
that are also considered, by anyone who are, as indiscriminate attacks which treat as a single
military objectives a number of clearly separated and distinct military facilities located in Rizoba
or other area containing a similar concentration of civilians or civilian facilities like theirs shelter.
17. In Paragraph 19 and 20, Respondent established a make-shift military facility as the
shelter, where such detainees were killed or caused death that was relevant to the Status of
victims in hors de combat under the Conventions. This provision is not intended to modify the
generally accepted practice of uniforms being worn by members of regular armed units of the
parties to conflicts in order to avoid uncertainty and prevent any arbitrary measures. Hereto, he
must be known or should know official duty that the unrecognized civilian garb must not be used
improperly, although their Status of victims was doubtful, as such Leve en masse and adverse
party supporter, or employed combatant in that it is understood enough maybe he knew the
victim belonged to an adverse party to such conflicts.
vi. WHETHER REASONALBLE GROUND THAT THIS CRIME HAVE MET THE
actus reus ELEMENTS(1~3)
18. In laid down the Protocol(I)[Art.50], these grave breaches involve this crime, which
committed against persons protected by the Conventions. When this crime results in caused
death, such in direct attack of mens rea should not only apply to omission of this crime,
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but
also to hors de combat and the perfidious use of other recognized protective signs.
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Thus, the
Common 3 specifies that persons taking no active part in the hostilities, including members of
armed forces who have laid down their arms and those who are hors de combat for any other
reason will, in all circumstances, be treated humanely without any adverse distinction.
19. Unless otherwise, the inhabitants in Leve en masse of a non-occupied territory
spontaneously take up arms on the approach of the enemy to combat invasion without having

7
Foot.31,UNDoc.PCNICC/2000/1/Add.2(2000)
8
P.4, ICRC publication(1988)ref.0365

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had time to organize themselves, and active supporter authorized to follow the armed forces
without being directly part of them, such as civil aviation and members of military personnel
serving in civil defense organizations as laid down the Protocol(I)[Art.67].
20. In that, Respondent must be known or should know official duty that those who were
such questionable Status, are always protected under these provisions, unless there is apparently
taking a part in hostilities otherwise.
vii. WHETHER THERE ARE THE CRIMINAL JURISDICITIONAL REQUIREMENTS
THAT QUALIFICATION HAVE MET THE THRESHOLD ELEMENT(4,5)
21. The Common 2 cover international armed conflicts in which people are fighting against
colonial domination and alien occupation and against racist regimes in the exercise of their right
of self-determination. Meanwhile, the Protocol(I)[Art.1] provides the conflicts shall be qualified
as international when they occur between a state party to the Protocol(I) and an authority
representing a people engaged in a struggle against colonial domination and foreign occupation
and against the racist regimes in the exercise of the right of peoples to self-determination
22. However, this provision has never been triggered. There is a procedural requirement that
the authority representing the people formally undertakes to apply the Conventions and
Protocol(I) in relation to the conflict with the government in question, recognition or
acquiescence that must be done by means of a unilateral declaration addressed to the depositary,
as such Paragraph 14.
23. Meanwhile, so-called transnational armed conflicts
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break out by the organizational
armed group, whenever it should be individually considered for transformation between the two
characters, mean the character both of internationalized though non-international and not of
international though internationalized But it is not clear. Thus, flowing the Typological views
differ as to the legal consequences of the jurisdictions under international law.
24. First view, Paragraph 15 is that the determinant factor is whether acquiescence occurs,
via third parties, as such waiving their visa and helping NDRA&NSA stabilize Losovo, the

9
p.5,Transnational Armed Groups and International Humanitarian Law,2006,Program on Humanitarian Policy
and Conflict Research, Harvard University

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conflict changes internationalization character. Second view, Paragraph 16 is that the
determinant factor is whether the state armed group is in total control of the situation in Losovo,
where attacks are made more broadly on the infrastructure, on whose territory NDRA&NSA had
highly taken by military occupation, this may transform the entire conflict into an international
one,
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regard less UN Charter.
25. Finally, the jurisdiction, in laid down anything, is always satisfied within the Statute in
that N.L.M. is relevant to an internationalized armed conflict, both the two conflicts, which
practically does not distinct between the jurisdictions under IHL. Unless otherwise, the two
views, some established existences of transnational armed conflicts, can be determined.

IV. CONCLUSION
26. For all of the foregoing reasons, the Moot has already affirmed that Principle of self-
determination never justifies N.L.M. in armed conflict or the immunity of scope within the
jurisdictions as well as he apparently has responsibility for this case.


Respectfully Submitted,
Hochul Jung Seokyo Yoon

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Tadi Case,No.IT-94-1-AR72,70