Submission before International Criminal Court at Hague

Prosecutor Vs. Mr. Tony Gusman

MEMORIAL FOR THE DEFENSE

Counsel for the defense

Mark Anthony B. Rivas

Jepthah Frederick G. Mercado
Paul Nikon T. Arroyo
Nina Consuelo S. Del Valle
Raychelle R. Arimado
 October 5 2017

TABLE OF CONTENTS

INDEX OF AUTHORITIES ... 3

STATEMENT OF FACTS ... 5
PLEADINGS ... 8
Preparatory Statements ... 8
Count 1 : No Existence of International Armed Conflict . 9
Count 2: Gusman is not liable for the war crime . 10
of starvation under Article 8(B) (XXV)
and Article 25(3)(A).

2.1 Element No. 1 is not satisified 10

(..)
2.2 Element No. 2 is not satisfied; 11
There is no intention to starve civilians
as a method of warfare.
2.3 Individual criminal liability . 12

Count 3: Gusman is not liable for the war crime of .. 13

attacking civilians under Article 8 (20 (b) (i)
3.1: Element No. 2 is not satisfied: The Object of the .. 13
Attack was not a civilian population.
3.2: Gusman is not criminally liable and .14
responsible ()
3.3: Gusman had no reason to know of Hansons acts. . 14
Count 4: Gusman is not liable for the war crime of causing 15
Widespread, long term and severe damage to the natural
Environement under Article 8 (b) (iv) and Article 25 (3) (a)

4.1: Astro Administration has great military advantage 15

4.2: Environmental damage is not ....16
sufficiently (.)
4.3: Absence of Mans Rea ... 16
4.4: Gusman is not responsible for () .... 17

Prayer 18

2
 INDEX OF AUTHORITIES

International Agreements/ Treatises

Rome Statute of International 9

Criminal Court, Art 66 (1)-(3)

Geneva Convention of 1949, Article 3 9

Protocol I, Art 54 (2) 10

UNCLOS, Art. 33 (2) 11

Rome Statute, Art. 8 (2) (b) (xxv) 11

EC, ICC 11

Law of Armed Conflict, ICRC 12

Additional Protocol I, Article 8 12

Additional Protocol I, Art. 54 12

1863 Lieber Code, Article 15 13

Customary International Humanitarian Law 13

Rome Statute, Art. 8 (2) (b) (iv) 16

Additional Protocol I, Art. 35 (3).

Jurisprudence

The Prosecutor V. Thomas Lubanga Dyilo, 8

ICC-01/04-01/06
decided on March 14 2012

Confirmation of Charges, Mbaushimana, 9

ICC-01/04-01/10 40, para.40

Confirmation of Charges, Lubanga, 9

ICC-01/04-01/06-803, para.39.

The Prosecutor Vs. Limaj 10

The Prosecutor V. Haradinaj 10

The Prosecutor V. Mrksic 10

3
Prosecutor Vs. Miodrag Jokic 12
decided in 18 March 2004

Prosecutor Vs. Tihomir Bla(Ki) 14

decided on March 3 2000

Prosecutor v. Jean-Pierre Bemba Gombo 14

ICTY, Final Report to the Prosecutor by the 15

Committee Established to Review the
NATO Bombing Campaign, para. 50.

Prosecutor V. Rendulic 16

The Prosecutor V. Galic 16

The Prosecutor Strugar,. 17

.
The Prosecutor v. Sylvestre Mudacumura 17

The Prosecutor v. Kamuhanda 17

The Prosecutor v.Akayesu 17

Articles/ Commentaries and like Sources

ICRC Commentary on additional Protocol I 15

Commentary on the AP to the 15

Geneva Conventions, (ICRC Study), para. 2209
.
Statements of Australia ,Canada and 15
New Zealand on the application
and understanding of IHL

Mark A. Drumbl, Waging War Against the World: 16

The Need to Move From War Crimes to
Environmental Crimes,
22 FORDHAM INTL L. J. 122, 134 (1998).

W.J. Fenrick, "Article 8(2)(b)(iv), in: O. Triffterer (ed.), 16

Commentary on the Rome Statute of the
International Criminal Court, 1999, 197.

4
 I. STATEMENTS OF FACTS

Introduction

1. Astro, Casa and Bereto are bordering the Middle Sea with Casa located to the
northwest of Astro, facing the east coastline of Bereto. 1

2. Between 2003 and 2010, Astro was ruled by a military government led by General
George Ayana and Admiral Tony Gusman. Admiral Gusman acted as Commander -
in-chief of the Armed Forces and headed the Crisis Military Commission which
acted the de facto Government of Astro. 2

3. The Yukule Archipelago is located near the state of Bereto, Casa and and Astro.
The Bereton Central Government took charge of the defence and foreign affairs of
the Government until 2008. Nonetheless, the Yukulele enjoyed complete autonomy
in managing its internal affairs.3

4. Astro has been contesting Bereton sovereignty over the Archipelago based on the
proximity of the Archipelago to Astros coast and the unlawful annexation of the
Archipelago after the Second World War.

5. On February 4, 2008, Astro invaded the Yukele and quickly gained control of the
Capital City of Port Solferino in Bereto. 4

6. On February 10, 2008, the Governor of the Yukele voluntarily surrendered.

Military Administration was established to govern the Archipelago directly under
the supervision of the Crisis Military Commission. Due to local resistance, a
resistance militia was formed and led by Colonel Spartan from the Bereton army.
They used guerrilla tactics, including the use improvised explosive devices along

1 Compromis, Par. 1
2 Ibid, Par. 2
3 Ibid, Par. 3
4 Ibid, Par. 6

5
 the main roads of the island. Bereto was the main source of military supply to the
resistance.5

7. Due to the increasing volatile situation in the Yukule, several Anti-Astro attacked
were encountered. In one incident, an ambulance carrying 5 wounded Astron
soldiers together with the a nurse and a doctor were unwarrantedly killed by
roadside bombs. Several occasions, the Astron vessels were surprised by the attacks
from Yukulean fishing boats carrying weapons and explosive devices. Thus,
Astron vessels were severely damaged and suffered.

Control measures

8. On September 1, 2008, The Astro Administration through Admiral Gusman

declared that all foreign ships before entering a Maritime Control Zone had to
request authorization from the Military Administration. The zone is defined with
area of 24 nautical miles from the Yukele Island Coastline. The activities of local
fishermen are also limited to 6 nautical miles offshore. Importation and exportation
of goods are tightened through security control measures to abate the entry of other
weapons. Certain fertilizers and pesticides were banned from the port of entry. The
Administration ensured that only goods exclusively used for civilian purposes
would be allowed into Yukule.6

Establishment of Operation Blue

9. On 15th April 2010, ten (10) NGOs from Bereto and Astro formed a coalition under
the name of Free Yukule Movement (the Movement, for brevity), led by the Bereton
Sacred Fighters. Other members of the movement included the Astro NGO Yukule
Watch.7

5 Compromis, Par. 7
6 Ibid, Par. 9-11
7 Ibid, Par. 20

6
10. On May 30 2010, the Movement announced that it had chartered a Casa registered
vessel, Nirvana, to deliver humanitarian packages to Yukule. 8

11. On July 1 2010, Nirvana sailed and left the port of Bereto for Yukule. Passengers
of the Vessel Nirvana were mostly Bereton Citizens but some were from Astro,
Casa and other countries. Several members of the Movement, Human Rights
Activists and Anti-Astro Protestors were on board. 9

12. Gusman received intelligence that Nirvana also had a stock of rifles, ammunitio n
and grenades on board. He appointed Commander Hanson to lead a troop of 60
marines to defend the Maritime Control Zone which under no circumstances be
compromised.10

13. In the eve of July 20, 2010, the Captain of vessel Nirvana was informed through
that they would only be allowed to enter the controlled maritime zone if they submit
their cargo for inspection. 11

14. Despite the repeated warnings, Nirvana proceeded towards the Port. It prompted
Hanson to issue a final warning via radio and board the vessel. 12

15. Upon boarding, there was a strong and violent resistance from the Sphinx Guards
and passengers upon Boarding. Activists also used improvised weapons such as
axes, iron bars, fire extinguishers, etc. They even drew some gunshots. Also, The
Sphinx guards fired a few shots to stop the commando from advancing. Stun
grenades taken from the seized marines were thrown at the commando. As a
consequence, the Commander Hanson reasonably ordered his troops to open fire. 13

8 Compromis, Par. 21
9 Ibid, Par. 23
10 Ibid, Par. 24
11 Ibid, Par. 25
12 Ibid, Par. 26
13 Ibid, Par. 27

7
Incident of Oil spills and Oil fires

15. On August 25, 2010 Bereton deployed naval task force and launched intensive air
campaign against Astron naval and land forces to weaken the Astrons
Government. Rear Admiral Freedman was instructed by Gusman to resort to all
resources available to stall the enemy.14

16. Freedman, in his capacity, ordered Ardent to open the valves of three oil termina ls
on the western side of the island to slow down the advancement of Bereto.
However, Bereton naval forces managed to land on the southern part of Yukule and
rapidly advanced towards Port Solferino. Gusman commanded Ardent to take all
measures possible to stop the advancement of the Bereton forces. On the same
day, large oil storage tanks burst into huge fires. 15

17. In January 2011, the UNEP pointed out that the oil spills and fires could have a
major effect on the reef habitation offshore Yukule. However, according to Dr.
Sulivan from the Casan Meteorology and Environmental Protection Administratio n
the damage was not devastating and it may take a few years for the environment to
return to its former state. Another study on Yukule's coral reefs concluded that there
was no significant difference found between the species or families of oiled and
non-oiled reefs off the Yukulean coastline. 16

14 Compromis Part. 35 36
15 Ibid, Par. 37
16 Ibid, Par. 42- 43

8
 II. PLEADINGS

PREFARATORY STATEMENTS

An armed conflict is deemed international in character if it takes place between two

or more States this also extends to the partial or total occupation of the territory of
another State.17 Further, internal armed conflict that breaks out on the territory of a
State may become international or, depending upon the circumstances, be
international in character alongside an internal armed conflict if another State
intervenes in that conflict through its troops (direct intervention).

Under the standard of proof, the burden of proof is on the Prosecution to provide
sufficient evidence to establish substantial grounds to believe that the person
committed the crime charged.18 In addition to these standards, the charges cannot
amount to mere theory or suspicion19 but must be tangible, factual and concrete. To
overcome this presumption, the onus is on the prosecution by convincing the Court of
the guilt of the accused beyond reasonable doubt20 . Admiral Gusman shall be presumed
innocent until proved guilty before the Court in accordance with the applicable law.21

The Defense contends that these standards have not been met for any of the three
charges presented before the Court. The defense humbly submits its contentions that
the charges against the accused do not overcome this presumption.

COUNT 1: NO EXISTENCE OF INTERNATIONAL ARMED CONFLICT

It is submitted that an armed conflict is considered to be international in

character if it takes place between two or more States this also extends to the partial
or total occupation of the territory of another State.

17 The Prosecutor V. Thomas Lubanga Dyilo, ICC-01/04-01/ 06 decided on March 14 2012

18 Mbaushimana, Confirmation of Charges ICC-01/04-01/10 40, para.40
19 Lubanga, Confirmation of charges ICC-01/04-01/06-803, para.39.
20 Rome Statute of International Criminal Court, Art 66 (1)-(3).
21 Ibid

9
 In the case of Hamdan, which reflects the historic view that (international) war
could only take place between states In this case at bar, Yukule is not a State. Hence,
there can be no international conflict between Astro and Yukule.
In addition, the conflict between Astro and Yukule is classified as non-
international under International Law. Non-international armed conflicts are armed
conflicts in which one or more non-State armed groups are involved.22
In the case of Lubanga, an armed conflict shall be considered as non-
international provided that there exist (1) Organization of the Party and (2) Protraction
of the Conflict. There is organization when the following factors are present: the
groups internal hierarchy, the command structure, military equipment availability,
ability to plan and carry out military operations and the extent of milita r y
involvement.23 On the other hand, protraction24 is present when these factors are
satisfied: seriousness of attacks, spread over territory, period of time, extent of
government forces, mobilization and the distribution of weapons. 25 In this case, both
requisites are satisfied.
In the absence of international armed conflict, Gusman cannot be held liable
the three charges of war crimes.

COUNT 2: GUSMAN IS NOT LIABLE FOR THE WAR CRIME OF

STARVATION UNDER ARTICLE 8 (B) (XXV) AND ARTICLE 25 (3) (A).

2.0 Required Elements of Crime Under Article 8(B)(XXV) are not satisfied.

Under the Rome Statute, Article 8 (2) (b) (xxv), War crime of starvation as a method
of warfare requires four (4) elements, two of which were not satisfied.

2.1 Element No. 1 is not satisfied; There is no deprivation to civilians of objects

indispensable to their survival.

22 Article 3 of Geneva Convention of 12 August 1949

23 Limaj para.90; Haradinaj para.60.
24 Mrksic para.407
25 Ibid. para. 538.

10
 It is submitted that there is only deprivation when the supply of essential
commodity, of something necessary for the sustenance of the civilian population to
exist, which includes food stuffs, agricultural areas for the production of food stuffs,
crops, livestock, drinking water instillations and supplies, irrigation works, medicine
and blankets are inadequate.26
Due to the unpredictable situation of Yukule, importation of goods was only
restricted but not prohibited27 to stop attacks and abate continued resistance sustained
by entry of weapons. The Administration enforced the Maritime Control Zone in
Yukule, where a state may declare a contigous zone to an area not extending beyond
24 nautical miles in order to enforce and punish any infringements of its customs laws,
imigration laws, sanitary laws, and fiscal laws. 28 The checkpoint imposed was not
intended to deprive the civilians of resources for survival but only to seize prohibited
items. Banning of certain fertilizers and pesticide, which may be used in the production
of explosives and strict scrutiny on imported construction materials are regulations, as
these are products not directly essential to food sources, but significant because it posts
as security threat.29 The suspension of importation of humanitarian aids is not to deny
the civilians to their sources of basic essentials but construed as prevention to militia
members seeking help from humanitarian organizations. 30

2.2 Element No. 2 is not satisfied; There is no intention to starve civilians as a

method of warfare.

As provided, the perpetrator must have at the very least intended to starve civilia ns
as a method of warfare31 . Intent is a mental element32 that ascertains the purpose to use
a particular means to affect such result. However, although it may not be easy to prove,
the existence of intent may be inferred from relevant facts and the totality of the
circumstances.33

26 Art 54 (2), Protocol I

27 Compromis, Par. 8
28 Art. 33 (2), UNCLOS
29 Compromis, Par. 8
30 Compromis, Par. 16
31 Art. 8 (2)(b)(xxv), Rome Statute
32 EC, ICC
33 EC, ICC

11
 It is shown from the facts that control measures were in placed to impede the supply
of weapons to the local militia and to pressure the population to disengage from the
unrest.34
Based on those circumstances, the measure was intended to ban those weapons and
explosive devices that are imported to Yukele35 . Even those metal objects such as tin
cans were banned because the Administration believed that they might be used to make
weapons. 36 This was clearly enacted to prevent the proliferation of weapons and
ammunitions.
The Administration suspended the importation of all goods including humanitar ia n
aids when Militia attacked the Administration, which caused the death of Astron
soldiers and their deputies. This action is brought upon security reason wherein the
wounded members of Militia were seeking shelters to humanitarian organizations. 37
The Militia members are, even if wounded, not to be seen as hors de combat for
they did not cease participating in the hostilities. "Wounded and sick" is defined as
anyone in an armed conflict, whether military or civilian, who is in need of medical
attention and is not taking part in hostilities. 38 As a rule Humanitarian organization, as
a rule, shall not take any side in armed conflict39 . Hence, the act of Militia in resorting
shelter to the said organization would help the Militia from recovering and advancing
further attacks.
Furthermore, it is submitted that the banning of goods was justified under the
Scorched Earth Policy because the civilian objects were used in direct support of
military action of the adverse party.40 Gradually resuming importation of goods and
supplies on 15th January2010 (two months after the attack)41 and from relevant facts
showed that the Astro Administration did not intend to deprive the Yukuleans of
essentials for their survival as a warfare method but its actions were directed
exclusively for preventive mechanism and security measure.

34 Compromis, Par. 9
35Compromis, Par. 8
36 Compromis, Par. 12
37 Compromis, Par. 16
38 Article 8, Additional Protocol I
39 ICRC, Law of Armed Conflict
40 Art. 54, API
41 Compromis, Par. 16

12
2.3 Individual criminal liability under Article 25 (3) (a) does not attach.

Individual criminal responsibility attaches to persons who planned, instigated,

ordered, committed or otherwise aided and abetted in the planning, preparation or
execution of a crime referred to in articles 8 of the Rome Stature.42 Acts committed.
Based on the foregoing, Gusman did not perform any of the above-mentioned acts that
would institute him criminally liable. Gusman did not in any means willfully induce or
command anyone to deprive the civilians their commodities indispensable to their
survival.

COUNT 3: GUSMAN IS NOT LIABLE OF THE WAR CRIME OF

ATTACKING CIVILIANS UNDER ARTICLE 8 (2) (b) (i).

The war crime of attacking civilians requires five elements, but the alleged
conducts failed to meet these requisites.

3.1. Element No. 2 is not satisfied: The Object of the Attack was not a civilian
population.

It is submitted that he alleged attacks did not target civilians. The object of the
seizure was the vessel Nirvana which was located 24 nautical miles away from Port
Solferino. The vessel was alleged to be carrying a stockpile of weapons, notably rifles,
ammunition, and grenades. 43 Further, it breached a blockade despite repeated
warnings, intentionally and clearly refused to stop, or resist visit, search or capture.
Commando encountered a strong resistance from the Sphinx Guards and
passengers when boarding, activist also used improvised weapons against the marines 1 5
and as a result, lost their protection as a civilian and becomes a valid milita r y
objective.16

42 Prosecutor Vs. Miodrag Jokic decided in 18 March 2004

43 Compromis, Par. 24

13
 Its location, purpose, and use provide an effective contribution and attacking it
offers a definite military advantage. Thus, despite the unavoidable damage to
civilians,44 the attack did not target civilians.

3.1. Element No. 3 is not satisfied: There is no intention that the civilian
population to be the object of the attack.

It is humbly submitted that the element of mens rea of individual crimina l

responsibility is lacking in this case.
In the Case of Bla(ki), it was held that the mens rea of recklessness incorporates (i)
the awareness of a risk that the result or consequence will occur or will probably occur,
and (ii) the risk must be unjustifiable or unreasonable. The mere possibility of a risk
that a crime or crimes will occur as a result of the actor's conduct generally does not
suffice as a ground for criminal responsibility.45
Gusman, as the acting Commander-in-Chief of the Armed Forces 46 , appointed
Hanson to reasonably lead Operation Blue to strictly and necessarily implement the
inspection and regulation within the Maritime Controlled Zone. 47 The risk that a crime
will occur was not probable. The mere possibility that a war crime may arise between
the Astro Marines and Nirvana does not warrant criminal responsibility. Gusman does
not possess sufficient knowledge that Nirvana would breach the blockade despite of
repeated warnings 48 as against Astro's rule.

3.2 Gusman is not criminally liable and responsible as a military commande r

under Article 28(a): There was no effective control

In the Case of Bemba Gombo, effective control is an element of superior

responsibility and must be obtained by modality, manner or nature by a commander

44 1863 Lieber Code, Article15.

15 Compromis, Par. 27.
16 CIHL.
45 Prosecutor Vs. Tihomir Bla(Ki) decided on March 3 2000
46 Compromis, Par.2.
47 Compromis, Par. 24.
48 Compromis, Par. 26

14
over his forces or subordinates.The standard of it requires commander to have materia l
capability to prevent or punish criminal acts. 49
In this case, Hanson leading Operation Blue ordered the boarding and seizure of
Nirvana and for his men to engage the adverse party, not even asking Gusman for
instructions. Gusman did not have any direct communication with Hanson during the
skirmish. Thus, Gusman had no effective control in the conduct of Operation Blue.50

3.3 Gusman had no reason to know of Hansons acts.

In the Case of Bla(ki), it was held that a superior can be held crimina lly
responsible only if certain specific information was in fact available to him which
would provide notice of offences committed by his subordinates. 51
In this case, it was Hanson who ordered to board and seize the vessel Nirvana.
Upon encountering a violent and strong resistance from the Sphinx Guards and
passengers, It was Hanson who ordered to open fire. The foregoing orders was made
without giving notice to Gusman in any form of communication. 52 No informatio n
enabled Gusman to conclude in the circumstances that Hanson will commit such act.
Thus, neither Gusman knew nor had reason to know the alleged crime would be
committed.

COUNT 4: GUSMAN IS NOT LIABLE FOR THE WAR CRIME OF CAUSING

WIDESPREAD, LONG-TERM AND SEVERE DAMAGE TO THE NATURAL
ENVIRONMENT UNDER ARTICLE 8 (B) (IV) AND ARTICLE 25 (3) (A)

4.1 Astro Administration has great military advantage

Under the principle of proportionality, collateral damage as result of an attack

must not be excessive in relation to the concrete and direct military advantage
anticipated. 53 To establish this principle, two factors needs to be proved: militar y
advantage is great and environmental damage caused is not greater than said attack. 54

49 The Prosecutor v. Jean-Pierre Bemba Gombo

50 Compromis, Par. 26
51 Prosecutor Vs. Tihomir Bla(Ki) decided on March 3 2000
52 Compromis, Par. 26
53 ICRC Commentary on additional Protocol I
54 Ibid.

15
 Military advantage should be foreseeable at the relevant time 55 substantial and
relatively close.56 The term military advantage includes the security of the attacking
forces. 57 It is well noted that Beron Navy launched an intensive air campaign against
the Astron land and naval forces in Yukule while the Bereton Navy engaged Ashtron
Navy on the high seas.58
It is noted that there is a bona fide expectation that the attack would make a
relevant and proportional contribution to the objective of military attack involved. The
Astronian Military objective is substantial and foreseeable at the relevant time and
relatively close for this because the Astronian Military is at the brink of being
overpowered by Bereton forces.
In the Case of Rendulic,59 the Nuremberg Military Tribunal acquitted General
Rendulic of war crime of causing destruction of vast tracts of land in Norway in order
to escape the advancing Russian troops on the basis that the military necessity justified
his action.60 In this case, the military necessity is great which justifies the damage to
the natural environment.61

4.2 Environmental damage is not sufficiently established as clearly severe,

widespread and long-term.
It is submitted that environmental damage should be widespread, long-term and
severe.62 These three qualities of damage should be present and conclusively proved.63
In this case, the damage caused by Astro was estimated to take a few years. 64 Clearly,
a period of few years does not equate to long-term damage.

55 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing
Campaign, para. 50.
56 Commentary on the AP to the Geneva Conventions, (ICRC Study), para. 2209.
57 Statements of Australia ,Canada and New Zealand on the application and understanding of IHL
58 Compromis, Par. 35
59 The Prosecutor Vs. Rendulic
60 Mark A. Drumbl, Waging War Against the World: The Need to Move From War Crimes to

Environmental Crimes, 22 FORDHAM INTL L. J. 122, 134 (1998).

61 Compromis, para. 39.
62 Rome Statute, Art. 8 (2) (b) (iv) and API, Art. 35 (3).
63 W.J. Fenrick, "Article 8(2)(b)(iv), in: O. Triffterer (ed.), Commentary on the Rome Statute of the

International Criminal Court, 1999, 197.

64 Compromis, Par. 42.

16
4.3 Absence of Mens Rea
The requisites of mens rea are: (1) perpetrator knew that the attack would cause
widespread, long-term and severe damage to the natural environment; and (2)
perpetrator knew that environmental damage would be clearly excessive. 65
In the Case of Galic, the ICC held that knowledge of the circumstance s
requires that the perpetrator assess the possible casualties based on requisite
information which enables him to know the excessive damages as a consequence of
the attacks.66
In this case as bar, Gusman merely gave Freedman and Ardent general orders.67
It was the latter who had direct control of the military actions taken by the Astron
forces.68
In the Case of Strugar69 a perpetrator is liable for the attack if he has direct
intent to damage or destroy. In this case, Astronian Military was forced by
circumstances to employ such attack with the belief that they would be able to stop the
advance of Bereton force towards Yukule.70

4.4 Gusman is not responsible for ordering, soliciting or inducing the commission
of war crime under Art. 25 (3) (b)

In the Case of Mudacumura, The Court laid down the elements for establishing
liability under Art. 25(3)(b).71 One of these elements was not present.
The requisite actus reus is missing. To prove actus reus, it must be established
that Gusmans order has direct effect on the commission of the alleged crime.
In the Case of Kamuhanda72 , order shall have direct and substantial authority
over the perpetrator of the crime. Moreover in the Case of Akayesu73 , it provides that

65 Rome Statute, Art. 8 (2) (b) (iv).

66 Galic para. 58.
67 Compromis, para. 36.
68 Compromis, para. 37.
69 Strugar, para. 311.
70 Compromis, paras. 36, 39.
71 The Prosecutor v. Sylvestre Mudacumura
72 The Prosecutor v. Kamuhanda
73 The Prosecutor v.Akayesu

17
the evidence must prove: in what capacity the accused supported the act; and order
has direct effect on the commission of the crime.
In this case, Gusman only gave general order. After this was given, Gusman
never performed succeeding acts showing that he influenced the military actions taken
by Astron forces on the ground. Moreover, there were no clear evidence or proof to
show to what extent or degree Gusman supported the act or how the order affected the
commission of the crime.

III.PRAYER FOR RELIEF

The Defense respectfully requests this Honourable Court to adjudge and declare that
Admiral Tony Gusman is not criminally responsible under the Statute for war crimes
under Article 8(2)(b)(xxv), Article 8(2)(b)(i) and Article 8(2)(b)(iv).

Respectfully submitted,
The Defense

18