WESTERN MNDANAO STATE UNIVERSITY

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PROSECUTION MEMORIAL

WESTERN MINDANAO STATE UNIVERSITY

MOOT COURT COMPETITION
29TH JANUARY 2017

THE CASE CONCERNING

PROSECUTOR
vs
TONY GUSMAN

MEMORIAL FOR THE PROSECUTOR

Team 12

TABLE OF CONTENTS
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TABLE OF ABBREVIATIONS - - - - - - - 3

INDEX OF AUTHORITIES - - - - - - - 4

STATEMENT OF FACTS - - - - - - - 5

SUMMARY PLEADINGS - - - - - - - 9

PLEADINGS - - - - - - - 10

I-CRIME OF AGRESSION article 8 (1-2) (a-b) - - - - - 10

II- Common Article 2 to the Geneva Conventions of 1949 - - - - 11

The international armed conflict (“IAC”) between Astro and Bereto
existed when AAF took over and invaded Yukule Island from the
control of Bereton.

III-WAR CRIME - - - - - - - 13
i. GUSMAN IS INDIVIDUALLY CRIMINALLY LIABLE FOR USING
STARVATION AS A METHOD OF WARFARE AGAINST CIVILIANS
ii. Gusman is criminally responsible for ordering the war crime of attacking
civilian population and inflicting excessive incidental damage under
Article 8(2)(b)(iv

PRAYER - - - - - - - 18

TABLE OF ABBREVIATIONS

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Astron Armed Forces - - - - - AAF

Non-International Armed Conflict - - - - - NIAC

International Armed Conflict - - - - - IAC

Geneva Convention - - - - - GC

International Criminal Court - - - - - ICC

Additional Protocol 1 - - - - - AP-1

International Committee of the Red Cross - - - - ICRC

United Nations - - - UN

United Nation Convention On the Law Of the Sea - - - UNCLOS

International Humanitarian Law - - - IHL

United Nations Development Programme - - - UNDP

Non-Government Organization - - - NGO

INDEX OF AUTHORITIES

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 Geneva Convention of August 12 1949

 Internatioanal Committee of the Red Cross (Hague Regulation)

 International Criminal Court (Elements of Crime)

 Rome Statute of the International Criminal Court

 Customary International Humanitarian Law ( Additiional Protocol I) (Practice

Relating o Rule 53. Starvation as a Method of Warfare) (ICC Statute)

STATEMENT OF FACTS

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The Case

On the year 2003 to 2010, the Republic of Astro was ruled by two powerful military leaders,

General Ayana as Country’s president while admiral Tony Gusman acted as chairman of

Powerful Crisis Military commission at the same time vested the position as Commander in

Chief of the Armed Forces.

Bereton Republic which is a bordering country from Astro, controlled and governs an

archipelago named as Yukule Island known for its abundances in terms of agriculture,

forests, tourism, oil reserves on the land and as well as waters surrounding it.

However for over the past decades, Astro has been contesting sovereignty over the

Archipelago and until 4th of February 2008, Astron Armed Forces led by admiral Tony

Gusman invaded the island and took control the capital city of Yukule the Port Solferino and

established a Crisis Military Commission therein. Amidst of dominant power possessed by

Astron Armed Forces, inhabitants and remaining Bereton forces in the Island continued to

oppose and formed a “resistance militia”, a local militia or group that aims to drive out

Yukule invaders (Astro) while Bereton Republic deliberately providing military supplies and

weapons to the resistance group which were used in several violent attacks to Atron

Invaders including one incident wherein an ambulance carrying wounded soldiers was hit by

roadside bombs, one doctor and a nurse was killed. In other instances, Yukulean Fishing

boats lunched surprise attack against Astron vessels; others were caught transporting weapons

and explosive materials to Yukule Island.

Control Measures

Admiral Gusman enforced much rigid measures to suppress the relentless attacks and impede

the transportation of supplies to the local militia of Yukule. Thus, importation of goods and
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aids in the Island were tightened. On 1st September 2008, Gusman declared that all ships

entering the “Maritime Control Zone” shall request prior authorization and approval from the

Astron Military Administration. Checkpoints were established across islands, and limitations

to local fishing imposed up to six nautical miles offshore. Any fishing boats sailed beyond

the prescribed limit are being drove out by the patrolling Astron vessels to include the

incident happened wherein a boat was fired from offshore resulting to a death of a fisherman,

as a result fishes production were reduced. Importation of raw materials and manufactured

goods was reduced and prices soared. Construction materials was curtailed and strictly

scrutinized due potential threat might imposed by the militia, metals and cans used to

preserved foods were banned that might be used as weapons against Astron Administration.

Chemicals such as fertilizers and pesticides were prohibited that might be used in the

production of the explosives. Necessary repair works such as for Hospitals were pending due

to scarcity of equipments and materials, highways were severely damaged thus, and

transportation of goods, medicines, foods and necessities find it difficult to reach some part of

the areas.

On November 2009, Astron Military Administration were attacked by the militia, many

Astron soldiers were killed, on the other hand wounded militias seek aid and shelters with the

Humanitarian Organization. Immediately, Admiral Gusman ordered an absolute suspension of

all imports and Humanitarian Aid. As a result hospitals, and medicals stores failed to provide

support to the needs of local population that led to the worsening of Yukulers’ health

condition. Water sewerage and stations left unrepaired leads to low water consumption that

worsens the living condition of the people.

International Committee of the Red Cross (ICRC) and United Nations Development

Programme (UNDP) appealed for an immediate international intervention as Pepermint

Express raised the concern in the international media but Astron Armed Forces shut it down.
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On April 15, 2010, a joint coalition was formed composed of ten (10) NGOs, eight (8) from

Bereto and two (2) from Astro. The coalition was under the name of Free Yukule Movement

(The Movement) which was led by Bereton NGO “Sacred Fighters” chaired by Mr. Jonas

Borman aimed to Deliver “Humanitarian Packages” to Yukule and confront the occupying

invaders. On July 20, 2010, Nirvana, the Casa registered vessels sailed to Yukule carrying

200 passengers activist and thirty (30) Sphinx guards.

Operation Blue

Meanwhile, admiral Gusman received an intelligence report disclosing that Nirvana was also

carrying stock of weapons, riffles, ammunition and granades. Consequently, Gusman

formulated a commando unit composed of sixty (60) marines to deal with the potential threat.

The operation was named “Blue” under the leadership of Commander Hanson as appointed

by Admiral Gusman. While Nirvana was approaching the controlled maritime zone , Astron

Naval Forces warned the ship to stop for inspection. However Nirvana ignored and continued

sailing towards Port Solferino despite repeated warnings. Subsequently the commandos

boarded and seized the Nirvana ship but sphinx guards and passengers attempted to resist.

The commandos suddenly opened fire upon the passengers therein resulting in severe

casualties. Out of 30 Sphinx guards, 15 were killed, also 60 people were injured including

guards and passengers. The commandos eventually took control of the ship and escorted

towards Port Solferino.

Oil Spills and Oil Fires

The Bereton government sets to recapture the Island of Yukule once again. Naval forces

engaged the Astron navy on high seas and intensive air campaign launched against Astron

land and naval forces. On September 20, 2010, Gusman ordered Rear admiral Freedman to

resort to all resources available to stall the Bereton navy. In the ensuing days, several pro

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government magazines stated that the Bereton government should re-consider any attempt to

disrupt Astro’s sovereignty over Yukule, which would only lead to unforeseen consequences.

On September 24, 2010, Captain Ardent pursuant to Gusman’s orders, discharged oil into the

sea, from three oil valves and three oil tankers which delayed and slowed down the

progression of Bereton Naval forces. On October 16, 2010, told the Astron Hashtag Daily

that Bereton attacks would only “lead to the destruction of Yukule” and also told Captain

Ardent to “take all measures possible to stop the advancement of the Bereton forces. On the

same day, large oil storage tanks on a site near Port Solferino burst into huge fires. Port

Solferino and the surrounding areas were awash in smoke, soot, and ash. It took ten days to

get the fires under control and by then, several million liters(approx. 60 millions liters) of oil

have already been released into the sea. The oil spill and oil fires had several negative

effects on Yukule biodiversity.

In may 2011, Astro and Bereto agreed to jointly refer the situation in Yukule between January

2008 and December 31, 2010 to the International Criminal Court.

SUMMARY PLEADINGS

Tony Gusman in his capacity as Commander in Chief of Astron Military Forces is criminally

liable for the following;

i) committed; (ii) directed; (iii) and ordered the (a) Crime of Aggression (b) use of starvation

and suspends reliefs and humanitarian aids as a method of warfare; (c) attack against civilians

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not taking direct part in hostilities, and; (d) launch of an attack in the knowledge that such

will cause widespread, long-term and severe damage to the natural environment, in

the context of an international armed conflict in violation of international humanitarian

law.

PLEADINGS

I-CRIME OF AGRESSION article 8 (1-2) (a-b)

In the first place, the Yukule Archipelago was under the control and sovereignty of Bereto. Where

people lived peacefully and enjoy individual’s full autonomy. However, Astron Government has been

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contesting Bereton sovereignty over the archipelago, they based it on the proximity of the archipelago

to Astro’s coast and unlawful annexation of the Archipelago after the Second World War. Any States

involve in territorial disputes and are competing for territorial claims, are subject for interpretation

and legal justification before the INTERNATIONAL COURT OF JUSTICE (ICJ) and other Tribunal

Courts with regards to their basis for the claims and right over a particular territory. However due to

the aggressiveness showed by Astron state, they invaded Yukule through the use of Astron Armed

Forces as initiated by the Admiral Tony Gusman who is chairman of Crisis Military Commission and

at the same time the Commander in chief of the Astron Armed Forces. The act showed by Astron has

clearly committed the CRIME OF AGRESSION under article 8 (1-2) (a-b) and Admiral Gusman in

his capacity as the commander in chief of AAF, in a position effectively who exercise control over or

and directed military action of the state is undoubtedly criminally responsible for the crime

committed.

II- Common Article 2 to the Geneva Conventions of 1949

The international armed conflict (“IAC”) between Astro and Bereto existed when AAF

took over and invaded Yukule Island from the control of Bereton

In Year 2008, the Yukule Archipelago was under Bereton control, where people enjoyed

complete autonomy, however since 1980s, Astro has been contesting Bereton sovereignty

over the Archipelago. The arguments advanced by successive Astron governments were

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based on the proximity of the Archipelago to Astro’s coast and the unlawful annexation of the

Archipelago after the Second World War. On 4th February 2008, the Astron Armed Forces

invaded Yukule and quickly gained control of Port Solferino, the capital city of Yukule.

International humanitarian law (“IHL”) applies even if the said occupation meets with no

armed resistance and people are fighting against colonial domination and alien occupation.

ICRC Opinion paper, March 2008, confirms that "any difference arising between two States

and leading to the intervention of armed forces is an armed conflict within the meaning of

Article 2, even if one of the Parties denies the existence of a state of war. It makes no

difference how long the conflict lasts, or how much slaughter takes place. Apart from regular,

inter-state armed conflicts, Additional Protocol I extends the definition of IAC to include

armed conflicts in which peoples are fighting against colonial domination, alien occupation

or racist regimes in the exercise of their right to self-determination (wars of national

liberation). The Invasion of AAF to Yukule created an International Armed Conflict which is

a concern under IHL. Hence, the overall commander who has supreme power over the Astron

military, Admiral Tony Gusman, aware of factual circumstances shall be held criminally

liable over the killings and damages inflicted to persons and environment. Persons affected to

include bereton militias who fight against alien occupation (Astron Armed Forces) and other

civilians who suffered from the war or armed conflict.

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III-WAR CRIME

I. GUSMAN IS INDIVIDUALLY CRIMINALLY LIABLE FOR USING

STARVATION AS A METHOD OF WARFARE AGAINST CIVILIANS

a. Gusman committed a war crime under CUSTOMARY IHL (Art. 8 (2) (b) (xxv) of the
1988 ICC Statute Intentionally using starvation of civilians as a method of warfare by
depriving them of objects indispensable to their survival, including willfully impeding relief
supplies as provided for under the Geneva Conventions” constitutes a war crime in
International Armed Conflict.

b. Yukule Civilians affected by AAF military operations, which clearly violated AP-1 Art.
51 that provides civilian protection against danger arising caused by armed forces hostilities.
Civilians should be immune from attacks.
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c. Civilians were deprived of objects indispensable for survival. Deprivation includes
“foodstuffs, crops, drinking water installations, and supplies, irrigation works are not made
availablein a quantity and quality sufficient to satisfy their needs. Even humanitarian aids and
reliefs for civilians were deprived when Admiral Gusman ordered total Suspension of all
transporting reliefs and aids.

II. Gusman is criminally responsible for ordering the war crime of attacking civilian

population and inflicting excessive incidental damage under Article 8(2)(b)(iv)

a. The duty to distinguish civilians and combatants is absolute: the war crime

intentionally directing attacks against civilian population occurs when: (1) an offender

directs an attack, (2) against civilian population, (3) with deliberate intent, (4) during an

IAC and (5) with knowledge of an existing IAC. Gusman having appointed Hanson is

responsible for his subordinate’s acts under the principle of command responsibility.

 Hanson directed an attack against Nirvana

The act of not only infiltrating but also opening fire against Nirvana constituted an attack

not justified by military necessity. Moreover, Hanson directed attack by ordering

Operation Blue’s commencement.

 The Attack on Nirvana is an attack on civilian population.

A civilian population is composed of persons who are not part of the armed forces,

moreover, the presence of combatants within civilian population does not deprive it of

its civilian character. Nirvana at the very least had 200 civilians on board, giving it a

civilian character.

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b. Captain Ardent and his troops committed the war crime of excessive incidental

damage

 Captain Ardent and his troops committed the war crime of excessive incidental

damage The principle of proportionality prescribes that belligerent parties in war do

not inflict collateral damage that is excessive in relation to the military advantage with

any hostile action. Respect for the environment is in conformity with the principles of

necessity and proportionality.

i. Captain Ardent and his troops launched an attack “Attack” means “acts

of violence” against the adversary.

It has been accepted that violence is not of the means, but of the consequences. The

incident of oil spills and oil fires ruled out physical force; however, it evolved a

massive impact on the natural environment: thousands of birds found dead, marine

turtles endangered, and a massive reef habitation affected as they were extremely

susceptible to hydro carbon pollution. Those are regarded as violent consequences.

According to United Nations Security Council, there had been wars using oil as a

means of warfare, which caused serious damage to the natural environment and

violated international law, for instance, the Iran-Iraq War of 1980-88, the 1991 Gulf

War. Following these precedents, Captain Ardent ordered to release several million

liters of oil into the sea.

Under UNCLOS, States bordering an enclosed or semi-enclosed sea should

coordinate the implementation of their rights and duties with respect to the protection

and reservation of the marine environment The first oil spill could not restrain the

Bereton naval forces. However, Captain Ardent continued to halt them by utilizing oil.
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Nevertheless, no official warning was given prior to the attack, yet it was launched by

the sea near Port Solferino, the capital city of Yukule. During the fire, only Astron

soldiers retreated to the mainland.

ii. The attack was disproportionate

The attack caused widespread, long-term and severe damage to the natural

environment “Widespread” is defined to encompass an area on the scale of several

hundred square kilometers, “long-term” or “long-lasting” means lasting for a period

of months, or approximately a season, and “severe” is described to involve serious or

significant disruption or harm to human life, natural and economic resources or other

assets.

iii. Captain Ardent knew that the attack would cause disproportion

“Knowledge” means awareness that a circumstance exists or a consequence will occur

in the ordinary course of events. Captain Ardent meant to take advantage of oil;

therefore, he predicted the negative impact of such means of warfare to the natural

environment. Hence, the attack was launched willfully and in knowledge of

circumstances giving rise to the expectation of excessive civilian casualties.

c. Gusman bears responsibility as an order under Article 25(3)(b) ROME STATUE

In Gbagbo case, the ICC upheld that an action of a perpetrator satisfying the hereafter actus

reus and mens rea elements could be accused of criminal responsibility under Article 25(3)

(b).
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i. Actus reus Actus reus requires: (i) the perpetrator was in position of authority,

 The perpetrator instructed another to commit an offence,

 and (iii) his instruction had a direct effect on the commission of the crime.

Gusman chaired the Crisis Military Commission, which supervised the

AMA in Yukule. At the time being reported about the advancement of the

Bereton Navy, he had the responsibility to give orders to his subordinates.

Moreover, after the instructions to “resort to all resources available” and

“take all measures possible” to stall the enemy, one of Yukulean main

resources – oil, was utilized immediately for Astron military purpose.

iii . Mens rea

 Mens rea requires the perpetrator: (i) meant to instruct another to commit an

offence; and (ii) was aware that the crime would be committed in the ordinary

course of events as the consequence of his instructions. Several pro-

government magazines’ statements along with Gusman’s declaration via paper

Hashtag Daily indicated that he willfully let the attack be launched. Besides,

his affirmation of “the destruction of Yukule” on the paper implied his

negligence in the conduct of the attack as he strived to use the last resort in

defense of Astron’s sovereignty, despite the extensive destruction of Yukulean

natural environment.

 Thus, Gusman has met the requisite elements of actus reus and mens rea.

Consequently, Gusman is criminally responsible for ordering the commission

of the war crime under Article 8(2)(b)(iv).

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PRAYER

The Prosecutor respectfully requests this Honorable Court to declare, adjudge, and

confirm that Tony Gusman is liable under:

1. I-CRIME OF AGRESSION article 8 (1-2) (a-b)

2. Common Article 2 to the Geneva Conventions of 1949 (International Armed Conflict)

3. War Crimes (Art. 8 2xxv ROME Statue of ICC)

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Respectfully submitted,

Prosecutor.

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