Professional Documents
Culture Documents
Nguyn Th Nh Nh
Hong Bch Nga
L Th Thu Hin
Nguyn Minh Trang
Nguyn Hong Nam
Trng Vn Quyn
Hunh Th Bo Trn
ADVISORY BOARD
Cao V Minh Faculty of
Administrative Law;
L Vit Sn Faculty of
Administrative Law;
Trn Thanh Tho Faculty of
Criminal Law;
Mai Th Lm Faculty of
Administrative Law;
Trn Th Thu H Faculty of
Administrative Law;
Nguyn Th Ngc Lan
Faculty of Commercial Law;
V Hng T Faculty of
Administrative Law;
Nguyn Ngc Hng Phng
Faculty of Civil Law;
V Hng t Faculty of
International Law.
PREFACE
Sincerely,
Editorial Board.
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NOTE
of Treaties
Criminal Court
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2
3
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7
8
13
14
- 15 -
Id. p. 47.
Moot Problem, para. 13, line 1.
Moot Problem, para. 8, line 2.
Yves Sandoz (ed.), Commentary on the Additional Protocols
of 8 June 1977 to the Geneva Conventions of 12 August
1949, Martinus Nijhoff Publishers, 1987, para. 1679.
ICRC, Interpretive Guidance on the notion of Direct
Participation
in
Hostilities
under
International
Humanitarian Law, Nils Melzer, p. 53.
Moot Problem, para. 17, lines 2-3.
17
18
19
20
support Nordland
Sudlandian.
and
to
detriment
of
22
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23
24
25
26
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ICC-01/04-01/07
(30
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30
31
32
34
35
36
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38
39
41
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42
43
44
45
- 21 -
attack
was
not
the
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AP I, Art. 51(3).
Facts, para. 13.
Ibid.
Ibid. paras. 13,15.
AP I, Art. 51(4).
AP I, Art. 51(5).
9
10
11
12
13
14
15
16
17
18
19
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26
27
28
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31
32
33
34
35
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41
42
43
44
45
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Respectfully submitted,
Defendant.
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2. Count two
10
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12
13
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1. Admissibility
Under Article 5(1)(c), the International
Criminal Court (ICC) has jurisdiction over
the suspected war crimes. Moreover, the case
against Mr. Thomas Bemto (Bemto) before
the ICC is admissible under Article 14 as
Sudland and Nordland agreed to jointly refer
the situation of Crimania to the ICC.
2. Type of armed conflict, applicable law
and belligerent nexus
2.1. The international armed conflict
(IAC) between Nordland and Sudland
commenced on 12 January 2010
In Lubanga case, the ICC held that an IAC
takes place between two or more States.1
Hence, the armed conflict arising between
Sudland and Nordland is IAC. In Hague
Convention, a territory is considered being
occupied when it is actually placed under the
authority of the hostile army.2 Cappa, the
capital city of Criminia is gained control by the
Nordland Armed Forces (NAF) on 12th
6
1
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3. Substantive crime
COUNT 1: Thomas Bemto is criminally
responsible for committing, as an individual,
jointly with another or through another
person, the war crime of intentionally
directing attacks against the civilian
population as such or against individual
civilians not taking direct part in hostilities.
9
10
11
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15
18
16
17
19
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ICTY, Judgment, The Prosecutor v. Thomir Blaskic, IT-95-14T, para. 180; 122 IRL at 72.
Moot Problem, para. 13, line 3
21
22
23
24
25
26
27
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was
also
denied
28
29
30
31
33
34
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35
36
37
38
40
41
42
43
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ICTY, Judgment, The Prosecutor v. Thomir Blaskic, IT-95-14T, para. 152; 122 ILR 1 at 64
Moot Problem, para. 21, 22
Article 28(a), Rome Statute
Moot Problem, para. 19, lines 1-2
Moot Problem, para. 3, lines 6-7
44
45
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Respectfully submitted,
Prosecutor.
2
3
4
5
6
7
8
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Ibid..
Responsibility of States for Internationally Wrongful
Acts 2001, Art.9
Facts, para.5, lines 1-3
Ibid., paras.11,13
Ibid., para.12
occurred
an
attack.
9
10
11
12
13
15
16
17
18
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Ibid.., para.16,19,22.
Prosecutor v. Katanga, ICC-01/04-01/07, paras. 385388.
Facts, para.3, lines 6-7
AP I, Art.49(1).
Facts, para.14.
24
25
26
27
28
29
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Ibid.., para.17.
AP I, Art. 57(2)(a)(ii); ICRC, Study on Customary
International Humanitarian Law, Rule 15, Rule 18, Rule
19; ICTY, Prosecutor v. Kordi and erkez, IT-95-14/2-A
(17 December 2004), para. 686.
Facts, para.13
Submitted in II(3).
Submitted in II(4).
3.2. Bemto is individual responsible for
committing the crime through another person
under Article 25(3)(a).
34
35
30
31
32
33
36
37
38
39
40
41
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Facts, para.3
Ibid.., para.13,14
Rome Statute, Art. 30(1).
Rome Statute, Art.30(2).
Facts, para.13
Ibid..,
Ibid..para.14
Facts, para.3
confinement
caused
severe
43
44
45
46
47
48
49
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50
51
52
53
54
58
59
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Facts, para.16
Facts, para.22
Prosecutor v. Dusko Tadic, IT-94-1-A, para. 166. See also
Geneva Convention IV, Art.4
Ibid..
Facts, para.12
Submitted in II.3
f. The Sudland police and Bric were
aware of the factual circumstances that established
the IAC
Submitted in II.4
61
62
63
64
65
66
67
60
Rome Statute, Art.28(a); Prosecutor v. Bemba, ICC01/05-01/08 (15 June 2009), para. 407.
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68
69
70
71
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Respectfully submitted,
Prosecutor.
2
3
4
6
7
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13
8
9
10
14
15
16
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18
19
hierarchical
17
and
21
22
23
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29
24
25
26
27
30
31
32
33
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40
41
42
34
35
36
43
44
45
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Rule 10 of UN SMR.
Moot problem, para 23 line 6 and 7.
William Schabas, An Introduction to the International
Criminal Court, Cambridge University Press, 2011, p. 41.
Article3 of the ECHR (Iorgov v. Bulgaria, Judgement of
11/3/2004).
Moot problem, para 23, line 7.
Moot problem, para 23, line 7.
Moot problem, para 23, line 8.
William Schabas, An Introduction to the International
Criminal Court, Cambridge University Press, 2011. page 43.
William Schabas, An Introduction to the International
Criminal Court, Cambridge University Press, 2011. Page 11
46
47
48
49
50
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55
52
53
54
56
57
58
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Respectfully submitted,
59
60
61
The Prosecution.
62
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INSTRUCTIONS
1. The hearing takes place pursuant to
Article 61 of the ICC Statute (confirmation
of charges). At this stage, the Prosecutor has
to support each charge with sufficient
evidence to establish substantial grounds to
believe that the person committed the crime
charged.
2. The case is entirely fictional. Teams
should confine themselves to the facts
supplied. Neither the Prosecution nor the
Defence may introduce new facts. The Moot
Problem includes all the facts supported by
the evidence that has been presented before
the Court. Teams may nonetheless draw
reasonable inferences from the evidence
produced. They may also question the
credibility or weight of the evidence.
3. Teams should not hand anything to
judges unless asked to by a judge.
4. The problem is not intended to raise
questions of procedure before the ICC.
Procedural questions should be ignored.
5. The problem is not intended to raise
questions relating to the jurisdiction of the
ICC. The jurisdiction of the ICC should be
assumed. Counsel may in this instance
address issues regarding the admissibility of
the case under article 17 of the Statute of the
ICC (Statute) if relevant.
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Charge three
Article 8(2)(b)(iv) and Article 25 (3)(b) of
the Rome Statute
Regarding oil spills and oil fires from
September 2010 onwards, Tony Gusman is
criminally responsible for ordering the war
crime of intentionally launching an attack in
the knowledge that such attack will cause
widespread, long-term and severe damage to
the natural environment which would be
clearly excessive in relation to the concrete
and direct overall military advantage
anticipated.
NOTE
Participation to treaties
At all material times, the following
treaties were in force for Astro, Bereto and
Casa:
of
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7
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10
11
12
13
14
i.
Yukule
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17
18
19
20
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22
23
24
25
26
27
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35
36
37
38
39
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46
47
48
49
50
51
52
53
44
54
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passengers
lost
their
56
57
58
59
be
inferred
from
66
the
and the
61
62
63
64
55
can
65
66
67
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68
69
70
71
73
74
75
76
77
78
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84
85
86
87
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91
92
93
94
98
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99
100
101
102
103
104
105
106
107
108
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110
111
112
113
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Respectfully submitted,
Defendant.
7
8
9
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17
18
19
20
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(30
22
23
24
25
30
31
32
33
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were
34
40
41
42
43
44
45
46
47
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Submitted in II.4.
b. Gusman bears individual criminal
responsibility under Article 25(3)(a)
The commission of a crime through another
person is a model of criminal responsibility.48
The principal uses the direct perpetrator as a
tool or an instrument to commit the crime.49
i. Actus reus
In Katanga case, the objective elements
require: (i) the perpetrator had control over the
organization and organised a hierarchical
apparatus of power;50 and (ii) the execution of
the crime was secured by almost automatic
compliance with the orders.51
Here, Gusman was the chairman of the
Crisis Military Commission (CMC),52
supervising the AMA.53 He was the
Commander-in-chief of the AFF,54 thus, had
actual control over the organization.55
49
50
51
52
53
54
55
57
58
59
60
61
62
63
64
65
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73
74
75
66
67
68
69
70
71
76
77
78
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80
81
82
83
84
85
of
79
principle
90
91
92
93
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AP I, Art. 51(4).
AP I, Art. 51(5).
Gali, supra note 73 at 57.
Id. at 60.
Moot Problem, para. 28, lines 3-4.
Moot Problem, para. 34, lines 1-9.
AP I, Art. 57(2)(a)(ii); ICRC, Study on Customary
International Humanitarian Law, Rule 15, Rule 18, Rule 19;
ICTY, Prosecutor v. Kordi and erkez, IT-95-14/2-A (17
December 2004), para. 686.
Moot Problem, para. 26, lines 1-6.
the
95
96
97
98
99
superior
101
102
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Rome Statute, Art. 28(a); ICC, Prosecutor v. Bemba, ICC01/05-01/08 (15 June 2009), para. 407.
Moot Problem, para. 2, line 5.
Moot Problem, para. 24, lines 2-4.
104
105
106
107
108
111
112
113
114
115
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116
117
118
119
120
123
124
125
126
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AP I, Art. 57(2).
AP I, Art. 58.
UNCLOS, Art. 123(b).
Moot Problem, para. 38, lines 2-4.
Moot Problem, para. 39, lines 4-5.
Moot Problem, para. 39, lines 4-5.
Moot Problem, para. 6, lines 5-6.
Moot Problem, para. 39, line 6.
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INSTRUCTIONS
1. Proceedings: The hearing takes place
pursuant to Article 61 of the ICC Statute
(confirmation of charges). At this stage, the
Prosecutor has to support each charge with
sufficient evidence to establish substantial
grounds to believe that the person committed
the crime charged. The Accused may object
to the charges and/or challenge the evidence
presented by the Prosecutor.
2. For the purpose of the moot, the hearing
comprises a main speech and a rebuttal for the
Prosecution and a main speech and a
surrebuttal for the Defence (see Moot Rule 12).
3. Facts and evidence: The case is entirely
fictional. The Moot problem includes all the
facts supported by evidence that have been
transmitted to the Defence, as well as facts and
evidence presented by the Defence for the
purpose of the hearing. Teams should confine
themselves to the facts supplied. Neither the
Prosecutor nor the Defence may introduce new
evidence or facts at the hearing (Article 61 (6)
(c) of the ICC Statute is not applicable). Teams
may nonetheless draw reasonable inferences
from the facts. They may also question the
credibility or weight of the evidence. Teams
should not hand anything to judges unless
specifically asked to by a judge.
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1949
Geneva Conventions
1977
1954
Protocol to
Protection
the
Convention
for
Second
Protocol
Convention of
to
the
Minos
the
Hague
Cultural
1984
2006
International
Protection of
Convention
All
Persons
Disappearance
1972
from
for
the
Enforced
1969
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ANNEX: MAP
Map 1: The continental landmass
Not to scale
Map 2: The Lowlands Midlands/Panema border
Not to scale
- 102 -
PRELIMINARY ISSUES
1. Jurisdictions
Vienna Convention implies that obligations
or rights created by a treaty are put on a third
State only in the event of its consent.1 If the
ICC tries an individual for a crime, that
individuals home State is subject to obligation
under the Statute, including the obligations
under Article 89, Article 93, Article 109, and
Article 117. None of these obligations and the
exercise of criminal jurisdiction against an
accused individual by that individuals home
State apply to non-party State.2
Midlands is not a party to the Rome
Statute;3 additionally, his challenging the
jurisdiction of the Court4 entails its lack of
consent in being bound by the law. Thus, the
Rome Statute has no jurisdiction over the
situation between Midlands and Panema.
2. Admissibility
3
4
6
7
8
9
10
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11
12
13
14
15
16
17
18
19
20
21
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22
23
24
25
26
MP, 6.
Rome Statute, Article 7(2)(a).
Prosecutor v. Jean-Pierre Bemba Gombo, ICC, Case no. ICC01/05-01/08, (Bemba) (15 June 2009), 81.
Prosecutor v. Jean-Paul Akayesu, ICTR, Case no. ICTR-96-4,
(Akayesu) (2 September 1998), 580.
Prosecutor v. Duko Tadi, ICTY, Case no. IT-94-1, (Tadi)
(7 May 1997), 648; Prosecutor v. Dragolijub Kunarac et
al., ICTY, Case no. IT-96-23 & IT-96-23, (Kunarac) (22
February 2011), 429.
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34
35
36
37
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MP, 20.
Prosecutor v. Dario Kordi and Mario erkez, ICTY, Case no.
IT-95-14/2, (Kordi) (26 February 2001), 446.
40
41
42
43
44
45
48
49
50
51
52
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MP, 10.
GC IV, Article 49.
US Military Tribunals in Nuremberg, Hostages Trials (19
February 1946), 646.
Humanitarian Law Consultancy, Burundis Regroupment
Policy, a Pilot-study on Its Legality, Humanitarian Law
Consultancy, 1997, 17.
MP, 8.
MP, 10.
MP, 10.
56
57
58
MP, 10.
GC IV, Art. 27.
GC IV, Article 42; Jean S. Pictet (ed) (1960), ICRC
Commentary on GC IV, p.202; Korematsu v. United States,
323 U.S. 214 (1944).
Prosecutor v. Zejnil Delali, ICTY, Case no. IT-96-21, (16
November 1998), 583.
MP, 10.
MP, 15.
59
60
61
62
63
64
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70
71
72
75
76
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77
78
79
80
81
82
85
86
87
88
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92
93
94
MP, 17.
Knut Drmann (2003), 29.
International Conferences (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, Article 27.
UN Educational, Scientific and Cultural Organisation
(UNESCO), Convention for the Protection of Cultural
Property in the Event of Armed Conflict, 14 May 1954,
Article 6.
Thomas H. Youmans (U.S.A.) v. United Mexican States,
Decision of 23 November 1926, Reports of International
Arbitral Awards, vol. IV, 116. United Nations, Reports of
International Arbitral Awards: Louis B. Gordon (U.S.A.) v.
United Mexican States, 2006, 591.
MP, 17.
95
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MP, 22.
PRELIMINARY ISSUES
1. Jurisdictions
In Ntaganda case, the International
Criminal Court (ICC) held that a crime falls
within the Court's jurisdiction if it: (i) is
included in Article 5; (ii) was committed after
the entry into force of the Rome Statute; (iii)
was committed on the territory of a State Party
to the Statute.1
Here, the crimes were committed after
Midlands invaded Panema on 1 July 2013.2
The crimes of rape, unlawful transfer and
seizure of property occurred in Lowlands
belonging to Panema, a State Party to the
Rome Statute.3
Thus, the ICC has jurisdiction over the
situation between Midlands and Panema.
2. Admissibility
1. Standard of proof
2
3
4
Prosecutor v. Bosco Ntaganda, ICC, Case no. ICC-01/0402/06, (Ntaganda) (13 July 2012), 8.
Moot Problem (MP), 6.
MP, 1.
UN General Assembly, Rome Statute of the International
Criminal Court (last amended 2010) (Rome Statute),
Article 17(1)(d).
6
7
8
10
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Prosecutor v. Bahar Idriss Abu Garda, ICC, Case no. ICC02/05-02/09, (8 February 2010), 30.
MP, 11, 13, 18.
MP, 9.
Prosecutor v. Palve Strugar, ICTY, Case no. IT-01-42, (31
January 2005), 327.
Prosecutor v. Miodrag Joki, ICTY, Case no. IT-01-42,
(Joki) (18 March 2004), 51.
Rome Statute, Article 61(5).
2. Admissibility of Evidence
ICC poses the possibility to use statements
from anonymous witnesses.13Anonymous
hearsay
evidence
corroborating
other
14
evidence does not make it inadmissible but
its probative value.15
12
13
14
15
16
17
18
Prosecutor v. Callixte Mbarushimana, ICC, Case no. ICC01/04-01/10, (Mbarushimana) (16 December 2011),
40
Prosecutor v. Thomas Lubanga Dylio, ICC, Case no. ICC01/04-01/06, (Lubanga) (29 January 2007), 39.
Mbarushimana (16 December 2011), 43.
Lubanga (29 January 2007), 106.
Lubanga (29 January 2007), 103.
MP, 22.
Prosecutor v. Germain Katanga and Mathieu Ngudjolo
Chui, ICC, Case no. ICC-01/04-01/07, (Katanga) (30
September 2008), 24.
MP, 11.
2. Applicable law
International humanitarian law (IHL)
applies if people are fighting against alien
occupation. Here, the MAFs attack faced up to
the resistance of the PAF.24 When an armed
conflict occurred, the territory will be
determined in the whole territory of the
warring States.25 The ICC determined that the
territory in this armed conflict must be the
whole territory of Panema.
19
20
21
22
23
24
25
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34
35
26
27
28
29
30
31
36
37
38
39
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40
41
42
43
44
45
46
47
48
50
51
52
53
54
55
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MP, 14.
MP, 18.
MP, 18.
Prosecutor v. Stanislav Gali, ICTY, Case no. IT-98-29, (5
December 2005), 3.
Rome Statute, Article 28(a); Prosecutor v. Jean-Pierre
Bemba Gombo, ICC, Case no. ICC-01/05-01/08 (Bemba)
(15 June 2009), 407.
MP, 6.
Bemba (15 June 2009), 413.
63
56
57
58
59
60
61
MP, 7.
MP, 14.
MP, 18.
Bemba (15 June 2009), 429.
Bemba (15 June 2009), 431.
MP, 12, 14.
64
65
66
67
68
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- 117 -
GC IV, Article 4.
MP, 8, 11, 15.
Katanga (30 September 2008), 360.
MP, 3.
83
84
85
86
87
88
Prosecutor v. Laurent Gbagbo, ICC, Case no. ICC-02/101/11, (Gbagbo) (12 June 2014), 244.
MP, 6.
MP, 7.
MP, 8.
MP, 11.
MP, 15.
Gbagbo (12 June 2014), 24.
92
93
94
95
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96
107
108
109
110
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120
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1. Introduction
The Hong Kong Red Cross and the
International Committee of the Red Cross
(ICRC)
have
held
an
International
Humanitarian Law Moot Court Competition
for 13 years. It is a regional competition which
nowadays hosts students from Vietnam, China,
Hong Kong, Taiwan, Thailand, Laos,
Cambodia, Malaysia, Singapore, Korea, Japan,
Australia, New Zealand and Indonesia. In
teams of two (with a researcher) the students
act as if they are in the International Criminal
Court, arguing whether or not an individual in
a fictional case should be prosecuted for war
crimes, crimes against humanity and genocide
from the side of the Prosecutor and the
Defendant. The competition enables students
and their coaches to gain a better understanding
of International Humanitarian Law (IHL) and
International Criminal Law and of the
workings of the International Criminal Court.
They also start to understand the nature of
international justice.
The ICRC organizes a number of student
events in cooperation with National Red Cross
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10
11
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15
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18
19
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21
22
23
4. Displacement
In the 2015 Hong Kong IHL moot problem,
the fictional General Smith was charged with
the war crime of unlawful deportation or
transfer or unlawful confinement under Article
8(2)(a)(vii) of the Rome Statute. The issue of
displacement has come to the fore in the last
years with the conflicts in Syria and Iraq
forcing entire communities to flee their homes
and find shelter within their states borders, but
away from home.24 The United Nations
Guiding Principles on Internal Displacement
provide the following definition of who are
internally displaced persons persons or
groups who have been forced or obliged to flee
or leave their homes or places of habitual
residence, in particular as a result of or in order
to avoid the effects of armed conflict, situations
of generalised violence, violations of human
rights or natural or human-made disasters, and
who have not crossed an internationally
recognised State border.25 Displacement can
mean that families are separated from each
other, they cannot access food, water,
medicines, they cannot find shelter and they are
at greater risk of further violence.26
24
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27
28
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5. Cultural Property
30
31
32
33
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34
35
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