PROSECUTION

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QUESTIONS
What are you trying to prove in this case?
Why is Gusman the only person being charged
in this case?
Why is IHL applicable in this case?

ANSWERS
There is sufficient ground to charge Admiral Gusman of the war crimes imputed against
him.
Although, we are charging Admiral Gusman in this case alone, we are not discounting the
liability of others who have a hand in the commission of these war crimes.
International humanitarian law applies to in two situations. IAC and NIAC. Since in an
IAC exists in the present case, then IHL shall apply.
According to Common Article 2 of the Geneva Convention of 1949, the Convention shall
apply to all cases of declared war or of any other armed conflict which may arise between
two or more of the High Contracting Parties, even if the state of war is not recognized by
one of them.

1.

International armed conflicts are those in which at least two States are involved. 1
INTERNATIONAL ARMED CONFLICT
Is there an armed conflict or is it just an There is an armed conflict, of international nature.
internal disturbance?
International armed conflicts exist whenever there is resort to armed force between two or
more States.
Non-international armed conflicts are protracted armed confrontations occurring between
governmental armed forces and the forces of one or more armed groups, or between such
groups arising on the territory of a State [party to the Geneva Conventions]. The armed
confrontation must reach a minimum level of intensity and the parties involved in the
conflict must show a minimum of organization.
Internationalized Armed Conflict is a situation that can occur when a war occurs between
two different factions fighting internally but supported by two different states. The most
visible example of an internationalized armed conflict was the conflict in the Democratic
Republic of Congo in 1998 when the forces from Rwanda, Angola, Zimbabwe and Uganda
intervened to support various groups in the DRC.2

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Internal disturbances are characterized by a serious disruption of internal order resulting

from acts of violence which nevertheless are not representative of an armed conflict (riots,
struggles between factions or against the authorities, for example). 3
Because all the war crimes require the presence of an international armed conflict.

Why is there a need to differentiate between an

IAC and a NIAC?
If there is no resistance since the Governor of
Yukule surrendered, how can there be an
armed conflict?
Which parties are in an armed conflict? Are Bereto and Astro. Since they are signatories to the Rome Statute and the Conventions, then
they High Contracting Parties?
they are High Contracting Parties.
Where did the armed conflict exist?
Yukule.
When did the armed conflict start?
When Astron forces proceeded to invade Port Solferino.
How can you say that Yukule is a dependent of
Bereto? Is it really a dependent or is it an
annex? What is the difference between a
dependency and an annexed?
What are the elements of a state? Why is the
Montevideo Convention being cited?
Is it necessary that the other countries
recognize Yukule as a State?
What is the binding effect of the Islands of The Islands of Palmas case Submitted to the arbitration of the Permanent Court of
Palmas case in the present case? Which court Arbitration under Article 3 of the Treaty of Paris in 1938.
promulgated the said case?
CHARGE 1 STARVATION and ICR through ANOTHER
What is starvation?
AP1, Art. 54: Starvation is present when any of the following is present (1) objects
indispensable to the survival of the civilian population are destroyed or withheld or (2)
means which may lead the civilian population with such inadequate food or water is
employed.
Is the prohibition against starvation Yes.
mandatory?
How is starvation used in this case?
Why are the Astron forces not justified in
stopping the importation of goods?
Is the MCZ a valid action of Astro?
No. According to Article 42 of the 1907 Hague Regulations, the occupying territory does
not acquire sovereignty over the occupied territory.
Are the acts committed in relation to an armed
conflict?
Why is Gusman being charged under the basis
of ICR through another? Why not charge him
on the basis of ICR through ordering?
CHARGE 2 CIVILIAN POPULATION and SUPERIOR RESPONSIBILITY
Why is Gusman being charged under the basis Gusman is being charged under the basis of Superior Responsibility because he exercises
of Superior Responsibility? What is the effective control over his subordinates and he failed to prevent or punish his subordinates

1 What is IHL?, ICRC, 2004, p.1

2Stewart, G.S. (2003), Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict,
85(850):313-350
3IHL, Answers To Your Questions, ICRC

difference between Superior Responsibility

and Command Responsibility?

in committing the war crime charged against him.

DIFFERENCE BETWEEN SUPERIOR AND COMMAND RESPONSIBILITY.
First, it has separate rules for military commanders and civilian superiors. In case of
military commanders, the prosecution must show that they knew or, owing to the
circumstances at the time, should have known.
The standard is higher for civilian superiors because the prosecution must demonstrate that
they knew, or consciously disregarded information which clearly indicated, that the
subordinates were committing or about to commit such crimes. This is probably a
progressive development, not the codification of existing customary international law.
Second, the standard for military commanders is higher than in the ICTY and ICTR
Statutes. While the ICTY and ICTR have stressed that the mental element is not about
negligence (had reason to know), the ICC Statute introduces negligence (should have
known), failure to look for information may lead to criminal liability.
In the case of Jean-Pierre Bemba Gombo, the Pre-Trial Chamber confirmed explicitly that
the had reason to know and should have known standard are different, but the
interpreting criteria developed by the tribunals may still be useful when applying the
should have known standard.

19. Elements of Superior Responsibility.

20. What is effective control under superior
responsibility?
21. What is the nature of Gusmans authority?
22. Is Ayana responsible?
23. Isnt it too soon to say that Gusman failed to
punish his subordinates?
24. What is your basis in saying that the
investigation is just a sham?
25. Isnt it that Gusman is not aware of the crime
being committed on board the Nirvana since he
has no way of knowing that such crime was
committed?
26. Who fired the first shot?
27. Isnt that the commando is just acting in selfdefense?
28. Was there an order of Gusman to attack
civilians?
29. When do civilians lose their protection?
30. When did the civilians start to take direct part
in the hostilities?
31. Armed Sphinx Guards are present on board
Nirvana, hence, the commando is justified in
attacking Nirvana.
32. The passengers themselves cannot distinguish
where the shots where coming from. It is clear
that they are taking direct part in the hostilities.
How can you say that they are protected
persons?
CHARGE 3 EXCESSIVE ENVIRONMENTAL DAMAGE and ICR through ORDERING
33. Who caused the oil fires?
34. Why is the crime being imputed to Gusman
and not Freedman?
35. Is there an excessive incidental damage? How
do you assess the excessiveness of the
damage?
36. Is there an order from Gusman to cause the
attacks?
37. Differentiate your basis under Charge 1, 2, and
3.
38. What is the military advantage in this case?
To stop the advancement of the Bereton forces.
39. Types of Individual Criminal Responsibility.
Ordering, Soliciting, Inducing and Through Another.
40. Foreseeable time.
Bereton forces are advancing and there is an immediate need to stop them.
41.
DEFENSE
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QUESTIONS
If there is no IAC, does this tribunal has
jurisdiction over this case?
Are you conceding that there is an attack?
Are you saying that the attacks of the Astron
forces are justified?
What is the military necessity in this case?
Isnt it a fact that the Yukulean population is
mainly dependent in imports, therefore, when
Gusman curtailed the importation of the goods,
then, there is an intent to starve the civilian
population?
When Hanson ordered the open fire, do you not

ANSWERS

Pressure the militia to surrender.

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consider that as an attack to the civilians? Is it,

therefore, your stand that the civilians were
valid military objectives? How about the
passengers who were peacefully protesting?
Cite the specific instance when the civilians
directly participated in the hostilities.
Are you saying that the acts of the commando
are justified because of the adverse reaction of
the passengers when they boarded the vessel?
Dont you think that the attacks are
disproportionate?
Assuming, without conceding, that the civilians
were indeed taking direct part in the hostilities,
is the commando justified in attacking,
considering that the civilians were only carrying
improvised weapons?
What is the basis of the commando in
inspecting Nirvana?
What do you mean be collateral damage?
Did Gusman punish his subordinates?
How about the allegation that the investigation
is a sham?
TuQuoque principle -

16. Why is ENMOD being cited?

17. Are you saying that the attack on the
environment is proper?
18. Is there a need for explicit order from Gusman?
Is it not enough that Gusman ordered to resort
to all measures to stall the enemy to indicate the
intent to cause excessive incidental damage?
19. Is there any other way to stall the enemy?
20. What is the principle of legality?
21. Is the MCZ a valid action of Astro?

Kupreskic et al., (Trial Chamber), January 14, 2000, para. 51, 515-520: The argument at
issue amount[s] to saying that breaches of international humanitarian law, being
committed by the enemy, justify similar breaches by a belligerent. However, the
tuquoquedefence has no place in contemporary international humanitarian law. The
Trial Chamber rejected the tuquoque principle as it is fallacious and inapplicable in
international humanitarian law. It has been universally rejected and flawed in
principle since [i]t envisages humanitarian law as based upon a narrow bilateral
exchange of rights and obligations. Rather, the bulk of this body of law lays down
absolute obligations, namely obligations that are unconditional or in other words not
based on reciprocity.

Yes. Under Art. 43 of the 1907 Hague Regulations, the authority of the legitimate power
having in fact passed into the hands of the occupant, the latter shall take all the measures
in his power to restore, and ensure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country.

22. Isnt it enough that Gusman impeded the

importation of supplies?
23. If there is starvation of those who are not
civilians, will the attacks be unlawful?
Isnt it that the purpose of MCZ is to suppress the
resistance militia, and thus, the starvation of civilians
are merely incidental.
What does GCIV cover and relate it to other GCs.
Is it also your stand that the starvation is merely an
incidental damage?
If the Astron forces are closely monitoring the
supplies, then why is there still a need to suppress the
supplies which could easily be given to the civilian
population?
Are the oil spills environmental modification
techniques
Define Perfidy.
Define Civil Defense Organizations

APl I defines perfidy as acts inviting the confidence of an adversary to lead him to believe
that he is entitled to, or obliged to accord, protection under the rules of international law
applicable in armed conflict, with intent to betray that confidence
Art 61 API civil defense organizations means those establishments and other units which
are organized or authorized by the competent authorities of a Party to the conflict to
perform any of the tasks mentioned under sub-paragraph (a) and which are assigned and
devoted exclusively to such tasks.