TABLE OF CONTENTS

INDEX OF AUTHORITIES.....4-9
STATEMENT OF JURISDICTION..10
IDENTIFICATION OF ISSUES10
STATEMENT OF FACTS10-11
SUMMARY OF PLEADINGS......11-12
PLEADINGS...13-33
I.MR. MAVEJ MINNOHI IS NOT LIABLE FOR COMMITTING THE WAR CRIME OF
WILFUL KILLING UNDER ARTICLE 8(2)(a)(i) OF THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT
A. WILFUL KILLING.13-22
1. Mr.Mavej Minnohi is not The Perpetrator: Element 1 not Fulfilled...13-14
a. Threshold of guilt
b. Reasonable doubt as to the actusreus
2. Persons Abducted were not Protected by the Geneva Conventions of 1949: Element 2
Not Fulfilled.14-15
3. Perpetrator was not Awareof Factual Circumstance that Established the Protected Status:
Element 3 Not Fulfilled15-16
4. The Conduct did not Take Place in the Context of and was not Associated withan
International Armed Conflict: Element 4 Not fulfilled16-21
a. Characteristics of armed conflict
b. No armed conflict exists in Zavaria
c. Assuming existence of armed conflict, it was not of aninternational character
(i) Characteristics of an international armed conflict

[1]

(ii) Validity of the theory of internationalization of armed conflict

(iii)Conflict was not of international character
5. Perpetrator was not Aware of the Factual Circumstances that Established the Existence of
An Armed Conflict: Element 5 Not Fulfilled...21-22
II. MR. MAVEZ MINNOHI IS NOT LIABLE FOR COMMITTING THE CRIME OF
GENOCIDE BY KILLING MEMBERS OF THE GROUP UNDER ARTICLE 6(a) OF
THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
A. GENOCIDE.22-33
1. Mr. Mavej Minnohi is Not the Perpetrator: Element 1 Not Fulfilled23
a. Threshold of guilt
b. Reasonable doubt as to the actusreus
2. The Attack was on a Political Group and Not on a National, Ethnical, Racial or
ReligiousGroup:

Element

Not

Fulfilled...23- 25
3. The Perpetrator did not Intend to Destroy, in Whole or in Part, that National, Ethnical,
Racial or Religious Group, as such: Element 3 not fulfilled...25- 27
a. Mr. MavejMinnohi had no dolusspecialisto destroy
b. In whole or in part
4. The Conduct Took Place in the Context of a Manifest Pattern of Similar Conduct
Directed Against that Group or was not Conduct that could Itself Effect Such
Destruction: Element 4 NotFulfilled...27-28
III. LACK OF INDIVIDUAL CRIMINAL RESPONSIBILITY..28- 29
1. The commission requirement under the Rome Statute of the ICC is not fulfilled
2. The ordering requirement is not fulfilled
3. The instigated requirement is not fulfilled
[2]

IV.

NO

LIABILITY

UNDER

THE

DOCTRINE

OF

SUPERIOR

RESPONSIBILITY...30- 33
1. Superior- subordinate relationship
2. Non-fulfillment of prerequisite of effective control
3. No presumption of knowledge merely on account of position of superiority
4. Failure to act
PRAYER FOR RELIEF.34

[3]

INDEX OF AUTHORITIES
STATUTES, CONVENTIONSAND OTHER PRIMARY DOCUMENTS
1. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Geneva, 12 August 1949....14
2. Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949..15
3. Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August
1949....15
4. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva,
12 August 1949..15
5. Elements of Crimes, Rome Statute of the ICC, UN doc. PCNICC/2000/1/Add.2
(2000)...13, 23
6. Protocol Additional to Geneva Convention of 12 August 1949, and relating to the
protection of the victims of international armed conflicts (Additional Protocol I)21
7. Protocol Additional to the Geneva Conventions of August 12, and relating to the victims
of non-international armed conflicts (Additional Protocol II).....16, 17
8. Rome Statute of the International Criminal Court............................................................13,
14, 20, 21, 22, 23, 24, 25, 29, 30, 31, 32, 33
9. Report of the International Law Commission on the Work of its 48th Session, Draft Code
of Crimes Against Peace and Security of Mankind, U.N.GAOR, 51st Session., Supp. No.
10, U.N. Doc. A/51/10 (1996)...26

[4]

BOOKS
1. Antonio Cassese, International Criminal Law (New York: Oxford University Press,
2003)..16
2. Claude Pilloudet al., Commentary on the Additional Protocols of 8 June 1977 to the
Geneva Conventions of 12 August 1949 (Geneva: Nijhoff, 1987)33
3. J. Pictet, (ed.), ICRC Commentary on Convention (IV) Relative to the Protection of
Civilian Persons in Time of War, 12 August 1949 (Geneva: International Committee of
the Red Cross, 1958)..16
4. L. N Sadat, The International Criminal Court and the Transformation of International
Law: Justice for the new Millennium, (New York: Transnational Publishers Inc.,
2002)..16
5. Marco Sassoli and Antoine A. Bouvier, How Does Law Protect In War; Volume 1
(Geneva: International Committee of the Red Cross, 2006)..26
6. Martin Hess (1983), The Applicability of International Humanitarian Law, Particularly
in Joint Conflicts, (Zurich: SchulthessPolygraphiserVerlag, 1985)....20
7. Robert Kryer (et al.),An Introduction to International Criminal Law and Procedure
(Cambridge: Cambridge University Press, 2010)..28
8. William A. Schabas, An Introduction to the International Criminal Court (Cambridge:
Cambridge University Press, 2007)...21, 24, 25
9. Y. Sandoz (et al.), Commentary on the Additional Protocols of 8 June 1977 to the
Geneva Conventions of 12 August 1949 (Geneva: International Committee of the Red
Cross, 1987)...16

[5]

ARTICLES
1. Geraldine Van Bueren (1994), The International Legal Protection of Children in Armed
Conflicts, International and Comparative Law Quarterly, 43(1994): 809- 819.16
2. CherifBassiouni and Bruce Broomhall (1999), The International Criminal Court:
Overview and Cooperation with States, in ICC Ratification and National Implementing
Legislation, Nouvelles Etudes Penales, 13(1): 45-63..32
3. D. Schindler (1979), The Different Types of Armed Conflicts According to the Geneva
Conventions and Protocols, Hague Recueil, 163: 147.17
4. Anwar T. Frangi (1993), The Internationalized Non-International Armed Conflict in
Lebanon, 1975-1990: Introduction to Confligology, Capital University Law Review, 22:
965-1038....20
5. Major James D. Levin (2002), The Doctrine of Command Responsibility and its
Application to Superior Civilian Leadership: Does the International Criminal Court have
the Correct Standard?,Military Law Review,52: 64...32
6. PayamAkhavan (2005), The Crime of Genocide in the ICTR Jurisprudence, Journal of
International Criminal Justice, 3(4): 989- 1006..24, 25
7. Sylvain Vite (2009), Typology of Armed Conflicts in International Humanitarian Law:
Legal Concepts and Actual Situations, International Review of the Red Cross, 91(873):
69-94....18, 19
8. William J. Fenrick (1999), Article 28: Responsibility of Commanders and Other
Superiors, in Otto Triffterer (ed.), Commentary on the Rome Statute of the
International Criminal

Court:

Observers

[6]

Notes,

Article

by

Article,

NomosVerlagesgesellschaft
..32
CASES
1. Prosecutor v Al Bashir,ICC-02/05-01/09, Decision on the Prosecution's Application for a
Warrant of Arrest against Al Bashir, (4 March, 2009)..28
2. Prosecutor v. Akayesu, ICTR-96-4-T, ICTR Trial Chamber, Judgment, (2 September,
1998)..17, 19, 28
3. Prosecutor v. Aleksovski, IT-95-14/1-A, ICTY Appeals Chamber, Judgment (24 March,
2000)..30
4. Prosecutor v. Imanishimwe&Ntagerura, ICTR-99-46-T, ICTR Trial Chamber III, (1
December, 2000)....32
5. Prosecutor v. Bagilishema, ICTR-95-1-A-T, ICTR Trial Chamber (7 June, 2001)..32
6. Prosecutor v. Blagojevic and Jokic, Trial Chamber, (17 January, 2005)..26
7. Prosecutor v. Blaskic, IT-95-14-T, ICTY Trial Chamber, (3 March, 2000)...7, 22, 29
8. Prosecutor v. Blaskic, IT-95-14-A, ICTY Appeals Chamber, (29 July, 2004)..7, 30
9. Prosecutor v. Boskoski, IT-04-82-T, ICTY Trial Chamber, (10 July, 2008)..........17, 18
10. Prosecutor v. Brdjanin,IT-99-36-T, ICTY Trial Chamber, (1 September, 2004)29
11. Prosecutor v. Delalic, IT-96-21-T, ICTY Trial Chamber, (4 September, 1998)..31
12. Prosecutor v. Furundzija, IT-95-17/1-T, ICTY Trial Chamber (21 July, 2002)...16
13. Prosecutor v. Haradinaj, IT-04-84-T, ICTY Trial Chamber, Judgment, (3 April,
2008)....17, 18
14. Prosecutor v. Jean de DieuKamuhanda, ICTR-96-4-T, ICTR Trial Chamber, (2
September, 1998)...33

[7]

15. Prosecutor v. Jelisic, IT-95-10-T, ICTY Trial Chamber, Judgment, (14 December,
1999)......7, 27
16. Prosecutor v. Jelisic, IT-95-10-A, ICTY Appeals Chamber, (5 July, 2001).7, 26
17. Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-717, Pre- Trial Chamber I, (26
September, 2008)...31
18. Prosecutor v. Kayishemaand Ruzindana, ICTR-95-1-A, ICTR Appeals Chamber,
Judgment, (21 May, 1999).26
19. Prosecutor v. Kordic and Cerkez, IT- 95-14/2, ICTY Trial Chamber, Judgment, (26
February, 2001)..20, 22, 29
20. Prosecutor v. Krstic, IT-98-33-T, ICTY Trial Chamber, (2 August, 2001)....26, 29
21. Prosecutor v. Kunarac,IT-96-23/1-A, ICTY Appeals Chamber, (12 June, 2002).16, 31
22. Prosecutor v. Limaj, IT-03-66-T, ICTY Trial Chamber, Judgment, (30 November,
2005).17, 18, 19
23. Prosecutor v. Lubanga, ICC-01/04-01/06-803, Pre-Trial Chamber I, (14 March,
2012)..20
24. Prosecutor v. Lubanga, ICC-01/04-01/06-803, Pre-Trial Chamber I, Decision on the
Confirmation of Charges, (29 January, 2007)...31
25. Prosecutor v. Musema, ICTR 96-13-A, ICTR Appeals Chamber I, (16 November,
2001)..29
26. Prosecutor v. Naletilic and Martinovic, IT-98-34-T, ICTYTrial Chamber, (31 March,
2003)..21
27. Prosecutor v.Raji, IT-95-12-R61, ICTY Review of the Indictment Pursuant to Rule 61,
(13 September, 1996).....20

[8]

28. Prosecutor v. Rutaganda, ICTR-96-3, ICTR Trial Chamber, Judgment, (6 December,

1999)..16, 17, 24, 25, 28
29. Prosecutor v.Semanza, ICTR 97-20-T, ICTR Trial Chamber, (15 May, 2003)...29
30. Prosecutor v. Stakic, IT-97-29-T, ICTY Trial Chamber, (31 July, 2003).....25
31. Prosecutor v. Tadic, IT-94-1-T, ICTY Trial Chamber II, Opinion & Judgment (7 May,
1997)..20
32. Prosecutor v Tadic, IT-94-1-AR72, ICTY Appeals Chamber, Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction, (2 October, 1995)...17, 19
33. Prosecutor v. Vasiljevic, IT-98-32-T, ICTY Trial Chamber, (29 November, 2002).29
OTHER MATERIALS
1. Tams Hoffmann, Can foreign military intervention internationalize a non-international
armed conflict? A critical appraisal, Available on the Web, accessed on 13/09/12,
URL: http://www.isisc.org/portal/images/stories/PDF/Paper%20Hoffman.pdf................20
2. ICRC (2008), How is the Term Armed Conflict Defined in International Humanitarian
Law? (Opinion Paper), 1-5, available on the web, accessed on 15 August, 2012, URL:
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article170308/$file/Opinion-paper-armed-conflict.pdf...............................................................17

[9]

STATEMENT OF JURISDICTION
The Prosecutor, in pursuance of Article 13(c) of the Rome Statute has been empowered by
Article 15 of the Rome Statute to initiate proceedings in the Honorable International Criminal
Court, which may subsequently exercise its jurisdiction in pursuance to the crime committed
under Article 5 of the Rome Statute. The Accused most humbly and respectfully submits to the
jurisdiction of the Honorable International Criminal Court (ICC) in the present matter.
IDENTIFICATION OF ISSUES
I. Whether Mr. Mavej Minnohi is liable for crime of wilful killing of civilians who were
abducted on 30 March 2008 in the province of Krubia under article 8(2)(a)(i) of the Rome
Statute of the International Criminal Court?
II. Whether Mr. Mavej Minnohi is liable for the crime of genocide of killing members of the
group for the acts of killing of people in and around the Krubia province from 05 June 2008 till
the end of June 2008, under article 6(a) of the Rome Statute of the International Criminal Court?
STATEMENT OF FACTS
Mr. Mavej Minnohi was the Prime Minister of Zavaria from 1982 till June 2007. After the
Democratic Front won the 2007 general elections, Mr. Tokino was elected as the Prime Minister
of Zavaria. The new Government alleged that Mr. Minnohi had entrusted government funded
infrastructure projects to his supporters flouting rules. Mr. Minnohi went into hiding fearing
arrest.

[10]

After the blasting of oil pipeline on 25 March 2008, innocent civilians ranging from 540 to
660 from across the Krubia and Nikkoni provinces who were returning to their respective
villages and towns after participating in a rally in support of the government and condemning
violence of the PRF were abductedon 30 March 2008.
Throughout the night of 05 June 2008, nearly 500 plain clothed armed men blocked the
Naropa locality. The armed men went to as many houses as possible searching for young men,
dragged them out of their houses and warned other family members not to get out of their
houses. Next day morning, when the paramilitary and armed forces reached the locality, they
encountered fierce armed resistance from the armed men which led to the killing of 26 armed
men and 23 police and armed personnel and by evening, 379 dead bodies were found in different
parts of the locality. Another 178 people were killed, along with incidents of sexual violence and
incidents of rape of 15 women on 7 June 2008. The violence continued during the month of June
and on 1 July 2008, Waltora City Ikshavu Welfare Society claimed that more than 1000 Ikshavu
ethnicity people had been killed.
At the request of the Prosecutor of the ICC, who made two charges against Mr. Minnohi
under Rome Statute i.e., war crime of willful killing under Article 8(2)(a)(i) and crime of
genocide of killing members of the group under Article 6 (a), the pre- trial chamber of the ICC
issued the trial arrest warrant against Mr. Mavej Minnohi. On 04 March 2009, Mr. Minnohi was
arrested by the police forces of Zavaria and was surrendered to the ICC on 31 March 2009.
Hence the present matter before this Honorable Court
SUMMARY OF PLEADINGS
I. Mr. Minnohi is not liable for committing the war crime of wilful killing under Article
8(2)(a)(i) of the Rome Statute of the International Criminal Court.

[11]

There is no conclusive proof as to the direct involvement of Mr. Minnohi in the killings of the
persons abducted on 30 March 2008. Further, the abducted persons are not protected under
Geneva Convention IV as no conflict or occupation existed in Zavaria and consequently, the
question of Mr. Minnohi being aware of their protected status does not arise. Further, there is no
armed conflict as the situation was in the nature of a riot. Even if there was armed conflict, it was
not international as it was between the Government of Zavaria and the PRF within Zavarian
territory. Since there was no armed conflict, there is no question of Mr. Minnohi being aware of
any circumstances of an armed conflict. Hence, all the elements of crime are disproved.
Ii. Mr. Minnohi is not liable for committing crime of genocide of killing members of the
group under Article 6(a) of the Rome statute of International Criminal Court.
The objective acts which comprise the actusreusof genocide must be committed with a specific
intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such in
order to constitute genocide. There is no conceivable connection between the armed men
carrying out the killings and Mr. Minnohi. Also, the attack was on a political group and not on a
national, ethnical, racial or religious group. Further, there is not a single instance showing Mr.
Minnohis intent to destroy. Lastly, there is no such manifest pattern of similar conduct of
killing; they are just isolated and sporadic acts of violence. Hence, all the elements of crime are
disproved.
III. Individual Criminal Responsibility
Individual responsibility cannot be attributed to Mr. Minnohi due to lack of evidence.
IV. Superior Responsibility
Superior responsibility also cannot be attributed to Mr. Minnohi due to lack of evidence.

[12]

PLEADINGS
I) MR. MAVEJ MINNOHI IS NOT LIABLE FOR COMMITTING WAR CRIME OF
WILFUL KILLING UNDER ARTICLE 8(2)(a)(i) OF THE ROME STATUTE OF
INTERNATIONAL CRIMINAL COURT
The jurisdiction and the functioning of the International Criminal Court are governed by the
provisions of the Rome Statute of the ICC1. Article 21 provides that in order to constitute a crime
under the Rome Statute of the ICC the Elements of Crime2 must be proved.
A. Wilful Killing
To constitute the crime of wilful killing, the elements as per the elements of the crimes have to
be proved.3 The Elements of Crime to be proved to constitute a crime of Wilful Killing are:
1.

The perpetrator killed one or more persons;

2.

Such person or persons were protected under one or more of the Geneva Conventions
of 1949;

3.

The perpetrator was aware of the factual circumstances that established that protected
status;

4.

The conduct took place in the context of and was associated with an international
armed conflict;

5.

The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.4

Article 1, Rome Statute of the ICC.

Elements of Crime, UN doc. PCNICC/2000/1/Add.2 (2000); See Article 9, Rome Statute of the ICC
Article 9, Rome Statute of the ICC.
Elements of Crimes for Article 8(2) (a) (i), Rome Statute of the ICC.

[13]

1. Mr. Mavej Minnohi is not the perpetrator: Element 1 not fulfilled

a. Threshold of guilt
Element 1 requires the perpetrator to have committed the act (actusreus) of killing one or more
persons.5 The accused remains innocent until proven guilty and the onus is on the prosecutor to
establish his guilt beyond reasonable doubt6. In case of any ambiguity, the definition of a crime
shall be interpreted in favor of the person being prosecuted7.
b. Reasonable doubt as to the actusreus
Mr. Minnohi had no ill- will against the people abducted on 30 March 2008. They belonged to
the provinces of Krubia and Nikkoni8 which were headed by the people belonging to the
Nationalist Party of Mr. Minnohi9. As such the protection of the people was his interest rather
than their abduction. Thus, there exists a reasonable doubt as to the actusreuson part of Mr.
Minnohi and he should be given benefit of doubt.
2. Persons abducted were not protected by the Geneva Conventions of 1949: Element 2 not
fulfilled
Geneva Convention I provides protection to the wounded and sick, and to members of the
medical personnel and to chaplains of the armed forces of the Parties to the conflict, received or
interned in their territory, as well as to dead persons found.10 Geneva Convention II provides
protection to the wounded, sick and shipwrecked, and to members of the medical personnel and
5

Ibid.

Article 66, Rome Statute of the ICC.

Article 22 (2), Rome Statute of the ICC.

Moot Court Problem, paragraph 10.

Moot Court Problem, paragraph 8.

10

Article 4, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, Geneva, 12 August 1949.

[14]

to chaplains of the armed forces of the Parties to the conflict received or interned in their
territory, as well as to dead persons found.11 Geneva Convention III provides protection to the
prisoners of war.12 In the present matter, the persons abducted on 30 March 2008 do not enjoy
the status of protected persons under these three Geneva Conventions.
Persons protected by the Geneva Convention IV are those who, at a given moment and in
any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a
Party to the conflict or Occupying Power of which they are not nationals.13 In the present matter,
the persons abducted on 30 March 2008 were the residents of Waltora and Nikkoni provinces of
Zavaria who were abducted by armed men.14 In this case, no conflict or occupation existed in
Zavaria and the armed men were neither the party to any conflict or Occupying Power. It was
only a random criminal act of abduction and hence, the abducted people do not come under the
purview of protected persons as per Geneva Convention IV.
3. Perpetrator was not aware of the factual circumstances that established the protected
status: Element 3 not fulfilled
The third element of willful killing requires the perpetrator to be aware of the factual
circumstance that established the protected status of such persons. As has already been stated and
established above15, in the present matter, the people abducted on 30 March 2008 did not enjoy
the status of protected persons as per Geneva Convention IV. In this light, no question arises
with regard to the awareness about the protected status of those persons by anyone. Hence, it can
11

Articles 4 and 5, Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, Geneva, 12 August 1949.
12

13

Article 4, Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949.
Article 4, Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949.

14

Moot Court Problem, paragraph 10.

15

See, Section I (A)(2) of this Memorial.

[15]

be inferred that even assuming Mr. Minnohi to be the perpetrator, he was not aware of the
protected status of the abducted persons.
4. The conduct did not take place in context of and was not associated with an international
armed conflict: Element 4 not fulfilled
a. Characteristics of armed conflict
As war crimes can, by their name only exist in context of a state of armed conflict 16, the
existence of a state of armed conflict is essential to establish the indictment.17An armed conflict
exists whenever there is a resort to armed forces between states or protracted armed violence
between governmental authorities and organized armed groups within a state.18 The situations
of internal disturbances, such as riots, isolated and sporadic acts of violence or other acts of a
similar nature19 do not constitute an armed conflict, which require high level of hostilities.20
Article 1(2) of Additional Protocol II21 also distinguishes armed conflict from internal
disturbances and tensions.22 The minimum threshold for an armed conflict to exist requires

16

Prosecutor v. Furundzija, IT-95-17/1-T, ICTY Trial Chamber (21 July, 2002), paragraph 258; Prosecutor v.
Kunarac,IT-96-23/1-A, ICTY Appeals Chamber, (12 June, 2002) [Hereinafter Kunarac].
17

Antonio Cassese, International Criminal Law (New York: Oxford University Press, 2003), p. 49; L. N Sadat, The
International Criminal Court and the transformation of International Law: Justice for the new millennium, (New
York: Transnational Publishers Inc., 2002), p. 161.
18

J. Pictet, (ed.), ICRC Commentary on Convention (IV) Relative to the Protection of Civilian Persons in Time of
War, 12 August 1949 (Geneva: International Committee of the Red Cross, 1958), p. 29; ICTY, Prosecutor v. Tadic,
Trial Chamber, Judgment, paragraph 70[Hereinafter Tadic].
19

Geraldine Van Bueren (1994), The International Legal Protection of Children in Armed Conflicts, International
and Comparative Law Quarterly, 43(1994): 809- 819, pp.809, 813.
20

Prosecutor v. Rutaganda, Case No. ICTR-96-3 (Trial Chamber), 6 December, 1999, paragraph 92; See also Y.
Sandoz (et al.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August
1949 (Geneva: International Committee of the Red Cross, 1987), p. 1384.
21

Protocol Additional to the Geneva Conventions of August 12, and relating to the victims of non-international
armed conflicts (Additional Protocol II), 8 June 1977, 1125 U.N.T.S. 609. [Hereinafter Additional Protocol II].
22

Article 1(2), Additional Protocol II (This Protocol shall not apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed
conflicts.).

[16]

rebels to have organized armies under their control23, with the capacity to sustain military
operations.24
b. No armed conflict exists in Zavaria
Article 3 common to the four Geneva Conventions of 1949 assumes that an international armed
conflict exists when the situation reaches a level that distinguishes it from other forms of
violence to which international humanitarian law does not apply, viz. situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a
similar nature.25 The threshold of intensity is reached every time that the situation can be
defined as protracted armed violence26 for which the two fundamental criteria are: (a) the
intensity of the violence and (b) the organization of the parties.27
With regard to the criterion of intensity, these data can be, for example, the collective
nature of the fighting or the fact that the State is obliged to resort to its army as its police forces
23

Prosecutor v. Akayesu, ICTR-96-4-T, ICTR Trial Chamber, Judgment, (2 September, 1998) paragraph 621 (2
September, 1998) [Hereinafter Akayesu].
24

D. Schindler (1979), The Different Types of Armed Conflicts According to the Geneva Conventions and
Protocols, Hague Recueil, 163: 147.
25

Additional Protocol II, Article 1(2). Although this quote is taken from Additional Protocol II, it is accepted that the
threshold established is also valid for conflicts covered by common Art. 3. See ICRC (2008), How is the Term
Armed Conflict Defined in International Humanitarian Law? (Opinion Paper), 1-5, available on the web,
accessed on 15 August, 2012, URL: http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article170308/$file/Opinion-paper-armed-conflict.pdf, p. 3. See also Prosecutor v. Limaj, IT-03-66-T, ICTY Trial
Chamber, Judgment, (30 November, 2005), paragraph 84 [Hereinafter Limaj].
26

Prosecutor v. Tadic, IT-94-1-AR72, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction (2 October, 1995), paragraph 70.
27

See Tadic, paragraph 561568, especially paragraph 562. See also Limaj, paragraph 84; Prosecutor v. Boskoski,
IT-04-82-T, ICTY Trial Chamber, (10 July, 2008), paragraph 175. These criteria have since been taken up by other
international bodies. See, in particular, ICTR, Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgment (Trial
Chamber I), 6 December 1999, paragraph 93; International Commission of Inquiry on Darfur, Report Pursuant to
Security Council Resolution 1564 of 18 September 2004, 25 January 2005, paragraph 7476. In the Haradinaj case,
the ICTY adopted a slightly different position, stating that the notion of protracted armed violence must therefore
be understood broadly. It does not cover the duration of the violence only, but also covers all aspects that would
enable the degree of intensity to be evaluated. The ICTY also seems to equate this notion with that of intensity;
Prosecutor v. Haradinaj, IT-04-84-T, ICTY Trial Chamber, Judgment, (3 April, 2008), paragraph 49 [Hereinafter
Haradinaj].

[17]

are no longer able to deal with the situation on their own. The duration of the conflict, the
frequency of the acts of violence and military operations, the nature of the weapons used,
displacement of civilians, territorial control by opposition forces, the number of victims (dead,
wounded, displaced persons, etc.) are also pieces of information that may be taken into
account.28 However, these are assessment factors that make it possible to state whether the
threshold of intensity has been reached in each case; they are not conditions that need to exist
concurrently.29
As for the second criterion, those involved in the armed violence must have a minimum
level of organization. With regard to government forces, it is presumed that they meet that
requirement without it being necessary to carry out an evaluation in each case.30 For nongovernmental armed groups, the indicative elements that need to be taken into account include,
for example, the existence of an organizational chart indicating a command structure, the
authority to launch operations bringing together different units, the ability to recruit and train
new combatants or the existence of internal rules.31 When one or other of these two conditions is
not met, a situation of violence may well be defined as internal disturbances or internal tensions.

28

See R. Pinto (rapporteur), Report of the Commission of experts for the study of the question of aid to the victims
of internal conflicts, International Review of the Red Cross, February 1963, especially pp. 82 83: The existence
of an armed conflict, within the meaning of article 3, cannot be denied if the hostile action, directed against the legal
government, is of a collective character and consists of a minimum amount of organization. In this respect and
without these circumstances being necessarily cumulative, one should take into account such factors as the length of
the conflict, the number and framework of the rebel groups, their installation or action a part of the territory, the
degree of insecurity, the existence of victims, the methods employed by the legal government to re-establish order,
etc. For a review of the indicative factors taken into account by the ICTY in its case law, see ICTY, Prosecutor v.
Boskoski, paragraph 177 [Hereinafter Boskoski]; See also Limaj, paragraph 168; ICTY, Haradinaj, paragraph 49.
29

Sylvain Vite (2009), Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and
Actual Situations, International Review of the Red Cross, 91(873): 69-94, p. 77.
30

Haradinaj, paragraph 60.

31

For a review of the indicative factors taken into account by the ICTY in its case law, see ICTY, Boskoski,
paragraphs 199203. See also Limaj, paragraphs 94134; ICTY, Haradinaj, paragraph 60.

[18]

Internal disturbances are situations in which there is no non-international armed conflict as such,
but there exists a confrontation within the country, which is characterized by a certain
seriousness or duration and which involves acts of violence.32
The stray instances of violence witnessed in Zavaria since August 2007 was suspected to
have been carried out by the Patriotic Resistance Forum (PRF). However, PRF never took
responsibility of these incidents barring one33. Thus, there is a reasonable doubt as to these
incidents of violence being the handiwork of PRF. Also, there was no evident leadership of the
PRF. Thus, it can be inferred that even if the PRF was reportedly an armed political group 34, it
was not an organized one. Further, the protestors demonstrated a lack of skill and resources to
sustain military operations. This can be attributed to the fact that the attacks perpetrated by them
lacked in strategizing and were amateur in nature. This clearly shows that the protestors were
incapable of engaging in high level of hostilities which characterizes an armed conflict and are
not sufficient to fulfill the criteria of protracted armed violence. Thus the acts of violence in
Zavaria only classify as riots, isolated and sporadic acts of violence or other acts of a similar
nature. Hence, there was no armed conflict in Zavaria.
c. Assuming existence of armed conflict, it was not of an international character
(i) Characteristics of an International armed conflict
An International Armed conflict exists when there is armed violence between two States.35 A
non-international armed conflict may rise to the level of international armed conflict when a
32

Sylvain Vite (2009), Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and
Actual Situations, International Review of the Red Cross, 91(873): 69-94, p. 77.
33

Moot Court Problem, paragraph 8.

34

Moot Court Problem, paragraph 7.

35

Prosecutor vs. DuskoTadic, IT-94-1-AR72, ICTYs Appeals Chamber Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction of 2 October 1995, paragraph 70 [Hereinafter Tadic Jurisdiction]; ICTR,
Prosecutor v. Akayesu,. ICTR-96-4, Judgement, paragraph 620 (2 September, 1998) [Hereinafter Akayesu].

[19]

foreign State effectively controls the opposing faction to the conflict, or one of the parties to the
armed conflict act on behalf of a foreign state.36
(ii) Validity of the theory of internationalization of armed conflict
A non-international armed conflict is internationalized if another state directly (occupation of
territory or by sending troops) or indirectly intervenes. 37 However, the fact of intervention is
relevant if it is carried out significantly and continuously.38 The requirement of conformity to
the nullumcrimen sine lege39principle demands that such standards as the concept of
internationalization should only be applied if they are firmly grounded in customary international
law.40 It is undeniable that States only accept the legal dichotomy of international and noninternational armed conflicts and decline to accept any third way.41
(iii)Conflict was not of international character
By the mere recovery of weapons manufactured in Atoria wherefrom Pamila buys military
equipments and weapons meant for the use by Pamilian armed forces, from the 14 people killed
who had engaged in firing with the Zavarian armed forces42, the conflict is not internationalized
36

Anwar T. Frangi (1993), The Internationalized Non-International Armed Conflict in Lebanon, 1975-1990:
Introduction to Confligology, Capital University Law Review, 22: 965-1038, p. 1038; See Prosecutor v. Kordic
and Cerkez, IT- 95-14/2, ICTY Trial Chamber, Judgment, (17 December, 2004), paragraph 66 [Hereinafter
Kordic]; See also Prosecutor v. Tadic, IT-94-1-T, ICTY Trial Chamber II, Opinion & Judgment (7 May, 1997),
paragraph 84 [Hereinafter Tadic].
37

Prosecutor v. Lubanga, ICC-01/04-01/06-803, Pre-Trial Chamber I, (14 March, 2012) [Hereinafter Lubanga].

38

Prosecutor v. Raji, IT-95-12-R61, ICTY Review of the Indictment Pursuant to Rule 61, (13 September, 1996),
paragraph 21, [Hereinafter Raji].
39

Article 22, Rome Statute of the ICC.

40Tams Hoffmann, Can foreign military intervention internationalize a non-international armed conflict? A
critical
appraisal,
Available
on
the
Web,
accessed
on
13/09/12,
URL:
http://www.isisc.org/portal/images/stories/PDF/Paper%20Hoffman.pdf.
41

Martin Hess (1983), The applicability of international humanitarian law, particularly in Joint conflicts, (Zurich:
SchulthessPolygraphiserVerlag, 1985), p. 151.
42

Moot Court Problem, paragraph 12.

[20]

as the important criterion of overall control and significant and continuous intervention are not
fulfilled as overall control test satisfied where a state has a role in organizing, coordinating or
planning the military actions of the military group, in addition to financing, training and
equipping or providing operational support43 Thus, the test of international armed conflict has
not been met in the present case. The situation at hand would also not fall under Article 1(4) of
Additional Protocol I44which categorically deals with colonial and racist regimes. 45The incident
of 30 March 2008 was in the context of this non-international conflict and hence, the jurisdiction of
the ICC is excluded, as evident from the elements of crime for wilful killing.

5. Perpetrator was not aware of the factual circumstances that established the existence of
an armed conflict: Element 5 not fulfilled
A person shall be criminally responsible and liable for punishment for a crime within the
jurisdiction of the Court only if the material elements are committed with intent and
knowledge.46 As proved above, there was no situation of armed conflict in the instant case. Mr.
Minnohi viewed the whole situation as a struggle for establishment of the identity and numerical
majority of the Hoyila people with no political aspirations. Thus, he lacked the requisite
knowledge to associate the circumstances to an armed conflict as he associated the same to
internal disturbances reflecting the popular sentiment of the Hoyila people47 against the
disenchantment with the ruling government. Furthermore, Mr. Minnohi had neither the intention
43

Tadic, paragraph 137, 138; See also Prosecutor v. Naletilic and Martinovic, IT-98-34-T, ICTYTrial Chamber, (31
March, 2003), paragraph 184.
44

Article 1(4), Protocol Additional to Geneva Convention of 12 August 1949, and relating to the protection of the
victims of international armed conflicts, June 8, 1977, 1125 U.N.T.S 3[Hereinafter Additional Protocol I].
45

William A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University
Press, 2007), p. 75.
46

47

Article 30(1), Rome Statute of the ICC.

Moot Court Problem, paragraph 21.

[21]

nor did he abduct or kill the abducted people who belonged to the provinces of Krubia and
Nikkoni48 which were headed by the people belonging to the Nationalist Party of Mr. Minnohi49
because the protection of the people was his interest rather than their abduction and killing.
Moreover, he himself stated that his concern was the welfare of every Zavarian citizen.50
Since, the minimum threshold to prove the guilt of the accused under the Rome Statute of
the ICC is both knowledge and intent which has clearly not been fulfilled in the present case; Mr.
Minnohi is not liable under the Rome Statute of the ICC. Additionally, the ICTY jurisprudence
has also laid down that, to satisfy the mens rea for wilful killing, it must be established that the
accused had the intent to kill, which is lacking in the case of Mr. Minnohi.51
II. MR. MAVEJ MINNOHI IS NOT LIABLE FOR COMMITTING THE CRIME OF
GENOCIDE BY KILLING MEMBERS OF THE GROUP UNDER ARTICLE 6(a) OF
THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
A. Genocide
To constitute the crime of genocide, the elements as per the elements of the crimes have to be
proved.52 The Elements of Crime to be proved to constitute a crime of Genocide are:
1. The perpetrator killed one or more persons.
2. Such person or persons belonged to a particular national, ethnical, racial or religious
group.
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or
religious group, as such.
48

Moot Court Problem, paragraph 10.

49

Moot Court Problem, paragraph 8.

50

Moot Court Problem, paragraph 5.

51

Kordic, paragraph 229; Prosecutor v. Blaskic, IT-95-14-T, ICTY Trial Chamber, (3 March, 2000), paragraph 153;
[Hereinafter Blaskic].
52

Article 9, Rome Statute of the ICC.

[22]

4. The conduct took place in the context of a manifest pattern of similar conduct directed
against that group or was conduct that could itself effect such destruction.53
1. Mr. Mavej Minnohi is not the perpetrator: Element 1 not fulfilled
a. Threshold of guilt
Element 1 requires the perpetrator to have committed the act (actusreus) of killing one or more
persons.54 The accused remains innocent until proven guilty and the onus is on the prosecutor to
establish his guilt beyond reasonable doubt55. In case of any ambiguity, the definition of a crime
shall be interpreted in favor of the person being prosecuted56.
b. Reasonable doubt as to the actusreus
The killing of people on 5 June 2008 in the Naropa locality was carried out by 500 armed men in
plain clothes and there was no connection between those armed men and Mr. Minnohi in any
conceivable manner. There was also no evidence to show or prove that these armed men were
members of the PRF. Hence, there is reasonable doubt that Mr. Minnohi was, in any manner, the
perpetrator of the killings.
2. The attack was on a political group and not on a national, ethnical, racial or religious
group: Element 2 not fulfilled
For crime of genocide, it is necessary that the attack should be against a particular national,
ethnical, racial or religious group.57The definition of genocide is restricted to the intentional

53

Elements of Crimes for Article 6 (a), Rome Statute of the ICC.

54

Ibid.

55

Article 66, Rome Statute of the ICC.

56

Article 22 (2), Rome Statute of the ICC.

57

Elements of Crimes for Article 6(a), Rome Statute of the ICC.

[23]

destruction of national, ethnical, racial, or religious groups.58 The plain language of the
definition of genocide indicates that the listing of protected groups is exhaustive rather than
illustrative. Furthermore, its interpretation is subject to the nullumcrimen sine lige principle
which requires that the definition of a crime shall be strictly construed and shall not be extended
by analogy.59 Therefore, there is no basis to expand the list of protected groups beyond what is
expressly included and to tamper with thus authoritative definition which has been widely
accepted by States and reaffirmed under the Rome Statute of the ICC.60Also, the groups are
defined to be national, ethnical, racial or religious according to the attitudes of those who
persecute them rather than pursuant to some scientifically verifiable list of parameters.61 Further,
political groups are not included under Article 6 of the Rome Statute of ICC as they have been
excluded from the protected groups because they are considered to be mobile groups which one
joins through individual, political commitment.62
In the present matter, it is evident from the speech of Mr. Minnohi given on 01 August
2007, where he stated that Mr. Tokino led government was targeting the Hoyilas with an
intention to make them incapacitated politically and economically so that there would not be any
challenge to Ikshavu domination in Zavaria clearly shows that his only intention was to establish
the political and economic supremacy of the Hoyilas. It must be noted at this juncture that the

58

Article 6, Rome Statute of the ICC.

59

Article 22 (2), Rome Statute of the ICC.

60

PayamAkhavan (2005), The Crime of Genocide in the ICTR Jurisprudence, Journal of International Criminal
Justice, 3(4): 989- 1006, pp. 999-1000.
61

William A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University
Press, 2007), p. 97.
62

Prosecutor v. Rutaganda, ICTR-96-3, ICTR Trial Chamber, Judgment, (6 December, 1999), paragraph 56
[Hereinafter Rutaganda].

[24]

perpetrators perception of the victim group63 is important in determining whether the act
amounts to genocide or not and in the present matter, Mr. Minnohi perceived the Ikshavus as a
political group led by Mr. Tokino, and not as an ethnical group. The situation in the present case
was a conflict not between the two ethnical groups but between the two political groups led by
Mr. Tokino and Mr. Minnohi. Political groups are not included under Article 6 of the Rome
Statute of ICC as they have been excluded from the protected groups because they are
considered to be mobile groups which one joins through individual, political commitment.64.
Thus, the instant case cannot be called that of genocide. Since, the attack was not against a
particular national, ethnical, racial or religious group but only a political group, it does not fulfill
the protected group requirement of the definition of genocide. Hence, the instant case is not that
of genocide.
3. The perpetrator did not intend to destroy, in whole or in part, that national, ethnical,
racial or religious group, as such: Element 3 not fulfilled
a. Mr.Mavej Minnohi had no dolusspecialisto destroy
Genocide is a unique crime where special emphasis is placed on the specific
intent.65Dolusspecialisrequires that the perpetrator means to cause a certain consequence or is
aware that it will occur in the ordinary course of events.66 In Krstic Trial Judgment, the
chamber held that the intent to destroy a group as such, in whole or in part, presupposes that the

63

William A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University
Press, 2007), p. 97.
64

65

Rutaganda, paragraph 56.

See Prosecutor v. Stakic, IT-97-29-T, ICTY Trial Chamber, (31 July, 2003), paragraph 520.

66

Article 30, Rome Statute of the ICC; See PayamAkhavan (2005), The Crime of Genocide in the ICTR
Jurisprudence, Journal of International Criminal Justice, 3(4): 989- 1006, p. 989.

[25]

victims were chosen by reason of their membership in the group whose destruction was sought.67
Simple knowledge or awareness that the killings etc. would, could or even might result in the
(partial) destruction of a group does not suffice.68 The intention cannot be easily identified. It
may be deduced from the words or the general behavior of the perpetrator.69 In Kayishema and
Ruzindana,70the tribunal held that, The mens rea must be formed prior to the commission of the
genocidal acts. The individual acts themselves, however, do not require premeditation; the only
consideration is that the act should be done in furtherance of the genocidal intent.71 In Jelisic
Case72, the chamber held that the specific intent requires that the perpetrator, by one of the
prohibited acts, seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial
or religious group, as such.
In the present matter, Mr. Minnohi had no intention whatsoever to commit the acts of
genocide or to incite the public to commit the same. It is evident from the speech given by Mr.
Minnohi on 01 August 2007 that he intended on preventing the Tokino government from
incapacitating the Hoyilas politically and economically and also seeked the support of every
Hoyila person in that regard. He further said that his concern was the welfare of every Zavarian
citizen and he would strive for that.73 There is not a single instance where he has incited anyone
67

See Prosecutor v. Krstic, IT-98-33-T, ICTY Trial Chamber, (2 August, 2001) [Hereinafter Krstic].

68

See Report of the International Law Commission on the Work of its 48th Session, Draft Code of Crimes Against
Peace and Security of Mankind, U.N.GAOR, 51st Session, Supp. No. 10, U.N. Doc. A/51/10 (1996).
69

Marco Sassoli and Antoine A. Bouvier, How Does Law Protect In War; Volume 1; (Geneva: International
Committee of the Red Cross, 2006), p. 310.
70Prosecutor v. Kayishemaand Ruzindana, ICTR-95-1-A, ICTR Appeals Chamber, Judgment, (21 May, 1999),
paragraph 91.
71
See Ibid.
72

Prosecutor v. Jelisic, IT-95-10-A, ICTY Appeals Chamber, (5 July, 2001), paragraph 46 [Hereinafter Jelisic];
See also Prosecutor v. Blagojevic and Jokic, Trial Chamber, (17 January, 2005), paragraph 656.
73

Moot Court Problem, paragraph 5.

[26]

to kill the Ikshavus which clearly shows that he never intended to kill anyone, his only concern
was to establish the political and economic supremacy of the Hoyilas and also the welfare of
every Zavarian citizen, including the Ikshavus.
b. In whole or in part
The words in whole or in part, indicates a quantitative dimension. The quantity contemplated
must be significant and a substantial part of a group must be destroyed. 74The Naropa locality is
mainly inhabited but not wholly inhabited by Ikshavus. Although 379 dead bodies were
recovered after the incident of 5 June 2008, there is no proof that they belonged to the Ikshavu
group as.75 Moreover, there is also a discrepancy regarding the number of people killed as the
Waltora city police Chief and Waltora City Ikshavu Welfare Society gave out different numbers.
In the present matter, although there were killings, neither can the number be said to be
substantial enough as there is no proof as to how many people were exactly killed, nor can it be
said that a substantial number of a particular group was killed. Hence, these killings do not
amount to genocide.
4. The conduct did not take place in the context of a manifest pattern of similar conduct
directed against that group or was not conduct that could itself effect such destruction:
Element 4 not fulfilled
The first branch of this element reflects a situation where the individual accused is acting within
a broader context in which others are also committing acts of genocide against the targeted
group. The adjective manifest means that the pattern must be a clear one and not one of a few
isolated crimes occurring over a period of years. The second branch applies where the conduct in
question could itself effect such destruction. This could occur where a group is particularly

74

75

Prosecutor v. Jelisic, IT-95-10-T, ICTY Trial Chamber, Judgment, (14 December, 1999), paragraph 82.
Moot Court Problem, paragraph 18.

[27]

small or where the accused has access to powerful means of destruction with genocidal intent.
The contextual element requires either a pattern of crimes, or a concrete danger to a group,
thereby ruling out isolated hate crimes.76
In the present matter, there is no such manifest pattern of similar conduct of killing
directed against the Ikshavu group. It must be noted that the term manifest pattern means that
the killing should take place over a considerable period of time but in the present matter, the
incidents concerned took place in the course of less than a month i.e. from 5 June 2008 till the
end of June 2008. Moreover, the incident of 5 June 2008 and the rest of June 2008 were isolated
crimes committed mostly by unidentified men.77Manifest pattern refers to a systematic, clear
pattern conduct in which the alleged genocidal conduct occurs78 and these acts of the
unidentified men cannot be considered to be part of systematic and clear pattern, they are just
isolated and sporadic acts of violence. Hence, it does not amount to genocide.
III. Lack of individual criminal responsibility
Article 25(3) of the Rome Statute of the ICC promulgates individual responsibility for persons
who commit, give orders to commit, or instigate the commission of the crimes in question.79
1. The commission requirement under the Rome Statute of the ICC is not fulfilled
The term commissionrefers to the direct person or physical participation of an accused in the actual
acts which constitute the material elements of the offence in question.80The head of liability of

76

Robert Kryer (et al.), An Introduction to International Criminal Law and Procedure, (Cambridge: Cambridge
University Press, 2010).
77

Moot Court Problem, paragraph 19.

78

See Judge Uackas dissenting opinion in Prosecutor v Al Bashir,ICC-02/05-01/09, Decision on the Prosecution's
Application for a Warrant of Arrest against Al Bashir, (4 March, 2009), paragraph 58.
79

Akayesu, paragraph 483; Rutaganda, paragraph 39; Prosecutor v. Musema, ICTR 96-13-A, ICTR Appeals
Chamber I, (16 November, 2001), paragraph 121.

[28]

commission covers physically doing a crime.81Article 25(3)(a) of the Statute establishes individual
criminal responsibility for persons who commits the crimes in question whether as an individual,
jointly with another or through another person.
In the present case there exists a reasonable doubt as to the actusreuson part of Mr. Minnohi
as there is no instance of him being directly involved in the commission of a crime. 82 In light of the
requirement that the definition of crime is to be strictly construed, 83the term committed must also
be interpreted strictly as highlighted above.84
2. The ordering requirement is not fulfilled
Under Article 25(3)(b) of the Statute,ordering requires that the person giving the ordermust have the
required mens rea.85 In the present matter, there is not a single fact which shows any order given by
Mr. Minnohi for the commission of the crimes.
3. The instigated requirement is not fulfilled
The mental element for instigation requires that the accused wished to provoke or induce the
commission of the crime or that he or she was aware of the substantial likelihoodthat the crime
would be committed as a result of his or her conduct.86In the present matter, there is no evidence to
indicate that Mr. Minnohi wished to provoke or induce the killing of individuals.87
80

Prosecutor v. Semanza, ICTR 97-20-T, ICTR Trial Chamber, (15 May, 2003), paragraph 383; Krstic, paragraph
601, Prosecutor v. Vasiljevic, IT-98-32-T , ICTY Trial Chamber, (29 November, 2002), paragraph 62 [Hereinafter
Vasiljevi].
81

82

Krstic, paragraph 601.

See Sections I (A)(1)(b) and II (A)(1)(b) of this Memorial.

83

Article 22 (2), Rome Statute of the ICC.

84

Article 25 (3) (a), Rome Statute of the ICC; Krsti, paragraph 601.

85

Blaskic, paragraphs 44, 42; Kordic, paragraphs 50, 30.

86

Blaskic, paragraphs 51, 278; Prosecutor v. Brdjanin,IT-99-36-T, ICTY Trial Chamber, (1 September, 2004),
paragraph 269, [Hereinafter Brdjanin]; Kordic, paragraphs 50, 32.
87

See Section II (A)(3)(a) of this memorial.

[29]

IV. No liability under the doctrine of Superior Responsibility

To hold a person criminally responsible under the doctrine of superior responsibility for an
international crime, the prosecution must prove four legal elements:
1. The existence of a superior-subordinate relationship between the accused as superior and
the perpetrator of the crime as his subordinate;
2. The crimes concerned activities that were within the effective responsibility and control
of the superior;
3. That the superior knew or had reason to know or consciously disregarded information
which clearly indicated that the crime was about to be or had been committed; and
4. That the superior failed to take the necessary and reasonable measures to prevent the
criminal acts or punish the perpetrators thereof.88
1. Superior- subordinate relationship
There was no superior- subordinate relationship between Mr. Minnohi and the PRF. There is not
a single fact that shows that Mr. Minnohi is the supreme leader of the PRF. Whilst there are no
clear facts indicating that Mr. Minnohi was the leader of the PRF, hence, in their absence, it is
established no superior- subordinate relationship between the two.
2. Non-fulfilment of prerequisite of effective control
Mr. Minnohi did he have any control over the crime that occurred on 5 June 2008 till the end
of June 2008. It is true that the crime of genocide took place but Mr. Minnohi had no role to play
in it. In the Lubangacase the PTC observed that when a crime is committed by a plurality of
persons, the Rome Statute separates out the commission strictusensoof a crime by a person, i.e.

88

Article 28(b) of Rome Statute of the ICC; See, Prosecutor v. Blaskic, IT-95-14-A, ICTY Appeals Chamber, (29
July, 2004), paragraph 484; Prosecutor v. Aleksovski, IT-95-14/1-A, ICTY Appeals Chamber, Judgment (24 March,
2000).

[30]

principal liability, committed as an individual, jointly with another or through another person
pursuant to Article 25(3) (a), from the responsibility of accessories to a crime under Article
25(3)(b)-(d).89In establishing the elements that allow for the criminal actions of subordinates to
be attributed to their leaders, moreover, the Chamber held that three factors must apply: (i) the
leader must control the organization that is used as an instrument of the crime; (ii) the
organization must be based on hierarchical relations between superiors and subordinates, while
composed of a sufficient number of subordinates to guarantee that the superiors orders will be
carried out, if not by one subordinate, then by another;90 and (iii) authority within the
organization must be such that the leaders orders will be complied with automatically, in an
almost mechanical manner, since the actual executioner of the order is a replaceable gear in a
giant machine or is otherwise so brutalized by intensive, strict, and violent training regimens
that the leader can ensure automatic compliance with his orders. 91
Superior may incur criminal responsibility for failure to take measures to repress the
commission of crimes by his subordinates,92 or individuals whom he or she exercises effective
control over.93 Effective control means that the superior had the material ability to prevent or
punish the commission of crime by subordinates.94 Since, there is no evidence to prove that Mr.

89

Prosecutor v. Lubanga, ICC-01/04-01/06-803, Pre-Trial Chamber I, Decision on the Confirmation of Charges, (29
January, 2007), paragraph 320.
90

Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-717, Pre- Trial Chamber I, (26 September, 2008),
paragraphs 513, 514.
91

92

Ibid, paragraph 518.

Article 28 (b)(iii), Rome Statute of the ICC.

93

Prosecutor v. Delalic, IT-96-21-T, ICTY Trial Chamber, (4 September, 1998) [Hereinafter Delalic].

94

Prosecutor v. Kunarac, IT-96-23/1-A.

[31]

Minnohi had effective control over the Patriotic Resistance Forum (PRF), he cannot be held
criminally responsible.
3. No presumption of knowledge merely on account of position of superiority
Although an individuals command position may be an indicator that he or she knew about the
crimes, such knowledge may not be presumed95. Mr. Minnohi cannot be said to have knowledge
about all abductions and killings by individuals not under his effective control. The standard for
culpability of civilian superiors is conscious disregard of information. Thus, Article 28 (1)(b)
entails stringent requirements in terms of information available to the civilian superior in contrast
to the owing to the circumstances at the time, should have knownstandard applied to military
superiors.96 It essentially eliminates culpability for negligent supervision.97 Mere inattentiveness,
lack of due care or a failure to monitor or to investigate would not appear to be sufficient to
satisfy this standard.98 In the present case, there was no conscious disregard of informationby
Mr. Minnohi and hence no liability can be attracted under Article 28(1)(b) of the Rome Statute
of the ICC.
4. Failure to act
The superior can be criminally responsible if he failed to take all necessary and reasonable
measures99 to prevent or repress the commission of the offence100 or to submit the matter to the
95

Prosecutor v. Bagilishema, ICTR-95-1-A-T, ICTR Trial Chamber (7 June, 2001) [Hereinafter Bagilishema].

96

Article 28(b)(i) Rome Statute of the ICC; William J. Fenrick (1999), Article 28: Responsibility of Commanders
and Other Superiors, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal
Court: Observers Notes, Article by Article, NomosVerlagesgesellschaft. p. 529.
97

Major James D. Levin (2002), The Doctrine of Command Responsibility and its application to Superior Civilian
Leadership: does the International Criminal Court have the Correct Standard? 193 Military Law Review,52: 64.
98CherifBassiouni and Bruce Broomhall (1999), The International Criminal Court: Overview and Cooperation
with States, in ICC Ratification and National Implementing Legislation, Nouvelles Etudes Penales, 13(1): 45-63,
pp. 45, 62, 63.
99

Prosecutor v. Imanishimwe&Ntagerura, ICTR-99-46-T, ICTR Trial Chamber III, (1 December, 2000), paragraph
630; Semanza, paragraph 406.

[32]

competent authorities for investigation.101 However, it has already been established above that
neither did Mr. Minnohi exercise any effective control on the PRF102 nor did he have any
knowledge about their activities103 and hence, no question arises regarding his taking measures to
prevent them.

100 Prosecutor v. Jean de DieuKamuhanda, ICTR-96-4-T, ICTR Trial Chamber, (2 September,1998), paragraph
606; Claude Pilloudet al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949 (Geneva: Nijhoff, 1987), p.1036.
101

Article 28(b), Rome Statute of the ICC.

102

See Section IV (2) of this Memorial.

103

See Section IV (3) of this Memorial.

[33]

PRAYER FOR RELIEF

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly prayed before this Honorable Court that it may be pleased to declare:
1. That Mr. Minnohi is not liable for the war crime of wilful killing of civilians who

were abducted on 30 March 2008 in the province of Krubia under article 8(2)(a)(i) of
the Statute of the International Criminal Court.
2. That Mr. Minnohi is not liable for the crime of genocide of killing members of the
group for the acts of killing of people in and around the Krubia province from 05 June
2008 till the end of June 2008, under article 6(a) of the Statute of the International
Criminal Court.
And pass any other order that it deems fit. All of which is respectfully submitted.

Date: 20 September, 2012

S/d 1.

Place: The Hague, Netherlands

2.
(Counsels for the Accused)

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