GROUP 7

EGOS, Czareeva Y.

MAGNO, Carmille Fatima A.

RICONALLA, Claudine Faye C.

The Prosecutor

v.

Joseph Rabuko, et. Al

Memorial of the Applicant

June 18, 2019

 Moot Number: 7A

The Prosecutor

v.

Joseph Rabuko, et. Al

June 18, 2019

2
 TABLE OF CONTENTS

I. INDEX OF AUTHORITIES ................................................................................................ 4

II. STATEMENT OF FACTS ............................................................................................... 5

A.Brief History .......................................................................................................................... 5

B. Civil War and International Armed Conflict..................................................................... 6

C.The United Nations Response .............................................................................................. 9

D.The Accused Persons Response ........................................................................................... 9

III. SUMMARY OF PLEADINGS ...................................................................................... 10

IV. PLEADINGS ................................................................................................................... 11

ICC has jurisdiction over the present case. .......................................................................... 11

The case is admissible. ............................................................................................................ 11

Attack in Zimbaloon Region. ................................................................................................. 13

Killing Manos Tshombe and his followers by using poisonous gas. ................................... 15

Other atrocities in Libertaria Libertaria .............................................................................. 15

V. PRAYER FOR RELIEF .................................................................................................... 18

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I.! INDEX OF AUTHORITIES

TREATY

Rome Statute

Art. 5, 8, 11, 12, 13, 17, 21, 22, 28 ……………………….……….11, 12, 13, 14, 16, 17

ICTY Statute

Art. 7, 6…………………………………………………...………..14

Geneva Convention Protocol I

Art. 86……………………………………………………….……..14

JURISPRUDENCE

Prosecutor v. Kistic……………………………………………..…………13

Prosecutor v. Kayishema and Ruzindana…………………………………13

Tadic Case…………………………………………………………………14

Prosecutor v. Aleksovski…………………………………………………..14

Prosecutor v. Delalic………………………………………………………15

Prosecutor v. Krnojelac……………………………………………………15

Prosecutor v. Akayesu…………………………………………………….16

Yamishita Case……………………………………………………………17

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II.! STATEMENT OF FACTS

A.! Brief History

Geography

The continent of Astoria comprises three independent states namely Libertaria, Karatanga and
Mirambique. Libertaria lies to the north of Karatanga, both situated on the coast of the sea Thethys.
While on the east, separated by a long chain of Aravali Hills, lies the state of Mirambique as their
common eastern neighbour.

Religion and Tribes

There are two dominant religions in the continent of Astoria namely the Arantic religion and
the Naasthism.

Sometime in 16th century, most of the tribes of the Karmirks along the Mazon river that flows
through Libertaria and Karatanga were converted to the Arantic religion brought by the Arantic traders
from the nearby Gondvanian continent who came along the banks of the Mazon and the coast of
Libertaria and Karatanga in search of spices and engaged in trade with the Karmirk tribes. The Arantic
religion believes in a formless god and permits prayers in the respective tribal languages and burial of
the dead. Each village of these converted tribes has a burial ground and a prayer hall therein ( together
known as Muktidhams ) which is deemed a sacred place.

While on the other hand, the mountain tribes (Naasthists) in all the three countries follow some
form of animistic rituals and the religion is commonly known as Naasthism. They claim to be the
direct descendants of the Swahelian, a once great civilisation and empire that ruled nearly the continent
for over seven hundred years before Christ. After the fall of this empirein 12 AD, tribal wars broke
out to establish supremacy.

Pre Second World War

The Arantic sovereignty was established in central Astoria and its imperial administration
divided the territory into three administrative districts, identical with what are present Libertaria,
Karatanga and Mirambique. The districts’ boundaries were drawn arbitrarily disregarding the principle
of integrity of the tribes and resulted to the division of many tribes.

Post Second World War

The Astorian continent was swept by the waves of nationalism and the Arantic Empire in central
Astoria broke into three independent countries on 15, August 2001.

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 B.! Civil War and International Armed Conflict

The State of Karatanga

2014: The army stepped in and decided that one third of the Parliament members should be
nominees of the army and the rest be elected by open elections and the prime minister should be an
army nominee. Three successive elections produce volatile coalition governments in Mirambique.

2016: Military took over the governance with 20-member Revolutionary Council headed by
the Chief of the Army.

The State of Libertaria

August 2015: National Socialist and Democratic Nationalists mustered a comfortable majority
and elected an Arantic leader, Roger Tshombe as Prime Minister.

Soon after forming his government, Tshombe sought to nationalise all mining activity in the
country through a ordinance. This mining activity is carried out by East Rand Central Gold Mining
Company, a Eurasian minerals multinational company headquartered in Eurasia in which the Naasthist
highland tribes have been the natural beneficiaries of the operations of the company.

However, President Joseph Rabuko rejected the cabinet’s request for the promulgation of the
nationalization ordinace, contrary to the constitutional provisions. The president is an ultra-
conservative Naasthist, who was suspected to have had links with East Rand.

The situation in Libertaria slowly began deteriorating into civil war between mostly n the pro-
Tshombe Arantics mostly living on the eastern and western banks of the Mazon and the pro-Rabuko
Naasthists.

Support from the Naasthist-Karatanga

The Prime Minister of Karatanga, General Noa Tendon, a hardcore Naasthist help President
Rabuko’s supporters by slipping through the porous borders, arms and ammunition and plenty of
Karatangan Troops in civilian clothes as volunteers.

Support from the Mirambique Revolutionary Council

The chairman of the Mirambique Revolutionary Council, General Rambo Chicanooga, who
has been promoting the training, arming and equipping of a Libertarian Naasthist terrorist group
(Libertarian Liberation Front: LLF) well appreciated the Karatangan Prime Minister actions.

The Ambush of the Libertaria Prime Minister

March 24, 2006: Prime Minister Roger Tshombe’s car was ambushed. The Prime Minister died
on the spot, it was believed that this was the handiwork of pro-Rabuko militants who had just crossed
the border after training in a nearby terrorist camp in Mirambique.

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Libertaria under National Emergency

The killing of Prime Minister Tshombe triggered serious fighting all over Libertaria between
pro-Tshombe Arantics and pro-Rabuko Naasthist that leads to the proclamation of National
Emergency by president Rabuko.

The president appointed his close confidant and fellow Naasthist, General Patton Kanube, as
the chief of the Libertarian armed forces authorising the latter to take whatever actions necessary to
quell the fighting and to eliminate the pro-Tshombe militancy.

The Pro-Tshombe Rebels

Manos Tshombe, the former Libertarian Minister of the Interior and the brother of the late
Prime Minister Roger Tshombe, took over the leadership of the pro-Tshombe rebels. He led a
dedicated group of fighters and laid a surprise siege to the President’s Longo tribe ( in a cluster of six
villages) in Longos in the central Libertarian with the help of the surrounding Arantic tribes and
massacred the entire Longo tribe. Only 10 out of 9,000 villagers were found alive in these village at
the end of a two week siege.

The Rapid Action Force (RAF)

The attacks made by the pro-Tshombe rebels strengthened the resolve of the Libertarian
national army dominated by pro-Rabuko Naasthist factions to suppress the rebels by whatever means
possible. General Kanube demanded of the pro-Tshombe tribes payment of compensation as
traditional measure of justice however the proposal has been ridiculed by Manos Tshombe.

30 June: A Rapid Action Force (RAF) from General Kanube’s army led by Lt.Gen. Jacob
Smith and his five trusted partners of International Security Inc., a private security firm in Eurasia
mounted an attack on nine Arantic villages of the Zimbaloon region, the birthplace of the late Roger
Tshombe.

The attack force was also participated by the “volunteer” from Karatanga and the terrorists
trained by Mirambique training camps.

The Means of War and Weapons

Weapons:

Carpet bombing: all Arantic villages in Zimbaloon were decimated including Redfort, a 14th
century Swahelian fort made with exquisite Greco-Arantic art and a number of schools were destroyed.

Agent Orange: The entire forests were destroyed forever by this weapon. General Kanube
insisted that because of a technical flaw in the bomb mechanism that such things happened.

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 Poison Gas: Manos Tshombe along with 220 of his followers after being discovered hiding in
a cave in the Zimbloon were killed by a battalion of RAF led by Col. Ramsey McGibbon by using
poison gas.

Prisoners Treatment:

The attack triggered full scale anti-Arantic witchhunting throughout the country. Lt. General
Jacob Smith instructed his subordinates: “ I do not want any Arantic prisoners of war. I will be happier
if no Arantic stays alive”. The statement was circulated among the non-Arantic ranks and file of the
army.

LLF kidnaps Arantic and Non-Arantic children between 9 and 14 years of age and forces them
to join its ranks.

Arantic girls had been given to RAF commanders as “wives” and force to cohabit with them
so that they would bear Naasthist children.

The boys had been forced to walk for days like human mules carrying military supplies through
inaccessible jungles, always ware that they would be killed if they showed any weakness and
hesitation.

Arantic children are forced even to mutilate and murder their family members.

10,000 children walk into nearest Arantic night shelters every night up.

25,000 childrren have been kidnapped by the Libertarian army alone.

125,000 Arantic tribesmen, men women of all ages including children have lost their lives.

10,000 Muktidhams were devastated and desecrated.

Casualties

26 November 2016: According to Amnesty International as published by The Astoria Times:

“ Almost five months of fighting has killed half a million in Libertaria”.

Many of the dead are Arantic children.

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 C.! The United Nations Response

The UN Secretary-General

Acting under Article 99 of the UN Charter, the UN Secretary General convened an emergency
meeting of the Security Council.

Resolution 1540

The Security Council adopted Resolution 1540, acting under Chapter VII of the charter.

The resolution declares that a civil war existed in Libertaria, that acts of genocide and crimes
against humanity have been committed by all sides of the conflict and that all parties to the conflict
forthwith cease and desist from any acts of hostilities, acts of genocide and crimes against humanity.

The resolution also requested the ICC to investigate, try and duly punish the guilty person.

The resolution authorised a UN Peacekeeping Force for Libertaria ( UNPFL) to restore peace
and security.

The ICC Role

Pursuant to Resolution 1540, the pre-trial Chamber of the ICC authorised the Prosecutor of the
ICC James Jackson, to cause investigation of the case referred to by the Security Council.

28 June 2017: The Chief Prosecutor filed before the pre-trial Chamber the first set of
indictments against the following, to wit;

a.! General Patton Kanube

b.! Col. Ramsey McGibbon
c.! Lt. General Jacob Smith
d.! Col. Sano NBonga
e.! President Joseph Rabuko

D.! The Accused Persons Response

The accused persons have moved the Supreme Court of Libertaria for a writ of mandamus to
have them tried in the criminal courts of Libertaria and the Supreme Court of Libertaria has
appointed an eminent lawyer as amicus curia to participate in the writ proceedings.

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III.! SUMMARY OF PLEADINGS

Prosecutor, James Jackson, with the authorization of the International Criminal Court caused
the investigation of the case against a.) President Joseph Rabuko, b.) General Patton Kanuba, c.) Col.
Ramsey McGibbon, d.) Lt. General Jacob Smith, and e.) Col. Sano Nbonga and accusing them with
Acts of Genocide, pursuant to Article 6 of the Rome Statute; Crimes against Humanity, pursuant to
Article 7 of the Rome Statute; and War Crimes, pursuant to Article 8 of the Rome Statute.

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IV.! PLEADINGS

ICC has jurisdiction over the present case.

The crimes committed by the accused persons are within the jurisdiction of the Court.1
Moreover, such crimes referred to in article 5 of the Rome Statute of the International Criminal Court
have been committed after the entry into force of this Statute and the State of Libertaria becomes
party to this Statute after its entry into force.2

The State of Libertaria being a state party to the Statute of ICC, thereby accepts the jurisdiction
of the Court with respect to the crime of genocide; crimes against humanity, war crimes and the crime
of aggression.3

The crimes committed and referred to the Prosecutor by the Security Council acting under
Chapter VII of the Charter of the United Nations are those crimes referred to in article 5 in accordance
with the provisions of this Statue.4

The case is admissible.

The atrocities in Libertaria for almost five (5) months have claimed the lives of nearly half a
million people according to Amnesty International as published by The Astoria Times. However there
is neither single investigation nor prosecution by the State of Libertaria has been done.

In accordance with Article 53 (2) (b), the prosecutor respectfully submits that neither of the
two grounds provided in Article 17 to challenge the admissibility exists.

A.! Gravity:

A case is inadmissible where no sufficient gravity to justify further action by the Court.5 For all the
reasons stated in the current application, the case is of sufficient gravity.

1 Rome Statute of the International Criminal Court, article 5 (1) (a) (b) (c) (d)

2 Ibid., article 11 (1) (2)

3 Ibid., article 12 (1).

4 Ibid., article 13 (b)

5 Ibid., article 17 (1) (d)

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 B.! Complementarity:

A case is inadmissible where it is being investigated or prosecuted by a state, which has jurisdiction
over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.6

The prosecutor is aware of the complementary feature of ICC’s jurisdiction, yet submits that, it
constitutes no impediment to the admissibility to the Court in this case for the following reasons;

1.! Neither investigation nor prosecution proceeding has been initiated by Libertian national
court.

As established in the warrant application decision of Lubanga case, it is a condition sine

qua non for a case arising from the investigation of a situation to be inadmissible that national
proceedings encompass both the person and the conduct, which is the subject of the case before the
court.7 In other words, where a pending national proceeding, investigation or prosecution, does not
encompass the same subject, it will not render the case inadmissible.

In this case, the pending writ of mandamus proceeding does not qualify as an “investigation”
or “prosecution”. The fact that the Supreme Court has appointed an amicus curia only evidences
commencement of a writ proceeding, not necessarily implies commencement of a criminal
prosecution. Therefore, there is no pending investigation or prosecution proceeding in Libertaria,
and this case is admissible.

2.! Libertia is genuinely unwilling to carry out the prosecution.

To the extent a writ of mandamus proceeding does qualify a national proceeding, this case
is still not rendered inadmissible, because Libertia is genuinely unwilling to carry out the
prosecution.

In order to determine unwillingness in a particular case, the Court shall consider, having
regard to the principle of due process recognized by international law, whether the proceeding is
being undertaken for the purpose of shielding the person concerned from criminal responsibility for
crimes within the jurisdiction of the Court.8

A writ of mandamus, is not consequently grante, but only at the discretion of the Libertarian
Supreme Court. Moreover, the discretion is not exercised in favor of the applicant, unless some just
and useful purpose may be provided.

6
Ibid., article 17 (1) (a)

7
Pre-Trial Chamber I Decision on the Prosecutor’s Application for a warrant of arrest, ICC-01/04- 01/06, 10
February 2006. para. 31

8
5 Note 1, article 17 (2) (1)

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 In this case, it was the five accused who moved for a writ of mandamus to have themselves
tried right before the commencement of ICC’s joint trial. If it is otherwise granted, Libertian court
must have a devious intent to shield the accused persons’ criminal responsibility. In neither case
would this case be rendered inadmissible.

Attack in Zimbaloon Region.

It is submitted that, by leading this attack against civilians and protected objects, Lt. General Jacob
Smith commits crime against humanity and war crimes; and General Kanube should bear superior
responsibility.

A.! Lt. General Jacob Smith commits crime against humanity of extermination under Article 7
(b) of Rome Statute and war crime of attacking protected objects under Article 8 (2) (e) (iv);
thus should bear individual responsibility.

Lt. General Jacob Smith led Rapid Action Force (“RAF” thereafter) and attacked the Zimbaloon
Region that resulted in the decimation of all Arantic villages in this region and the destruction of
Redfort, schools and forests. The former constitutes crime against humanity and war crime of attacking
civilians, and the latter constitutes war crime of attacking protected objects.

(1)!Crime against humanity of extermination.

Crime against humanity means any of the following acts when committed as part of a
widespread or systematic attack directed against any civilian population. 9

Four elements need to be satisfied under this crime: the killing of one or more persons;
the conduct constituted as part of a mass killing of members of civilian population; context of
a widespread attack against civilian population; and the intent of the perpetrator.10

In the present case, the carpet bombing over the nine Arantic is a widespread attack
against civilian population; the decimation of all the villages is a mass killing; and the attack
is intentionally mounted as “revenge” to Manos Tshombe’s attack of the six Naasthist
civilians as it staged more than a reverse repeat of the Longos.

9
Rome Statute, article 8 (1)

10
Elements of Crimes, p.6; Prosecutor v. Kistic, IT-98-33-T,(August 2, 2001) para.494; Prosecutor v.
Kayishema and Ruzindana, ICTR-95-1-T, para.142.

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 (2)!War crimes

a. Attack on protected objects

The attack on Redfort, schools and forest in Zimbaloon Region without military
necessary is also prohibited by law of armed conflict and constitutes war crime of attacking
civilian protected objects under Article 8 (2) (e) (iv).

b. Using Agent Orange

Customary international law, which is also applicable law for the Court and can be
basis of charges, 11 prohibits the use of chemical weapons in both international and non-
international armed conflicts.12 The ICTY held that “there undisputedly emerged a general
consensus in international community on the principle that the use of [chemical] weapons is
also prohibited in internal armed conflicts”.13Using prohibited weapons is a war crime.14

B.! General Kanube is liable for the attack under Superior responsibility Doctrine.

Superior responsibility holds superiors liable for crimes perpetrated by their troops.15 Apart from
a superior-subordinate relationship,16 the superior’s actual or potential knowledge of crimes
perpetrated or about to perpetrate,17and the former’s failure to take adequate measures to prevent or
repress breaches are necessary.18

General Kanube bears superior responsibility for the attack in Zimbaloon Region since these three
requirements are all satisfied. RAF is one part of General Kanube’s Libertarian army and therefore,
the superior-subordinate relationship exists between General Kanube and Lt. General Jacob Smith. By
his clarification after the attack, General Kanube admitted the existence of this relationship and

11
Rome Statute, article 21(1)(b) and article 22(3).

12
Customary international humanitarian law, volume I: Rules, Jean-Marie Henckaerts and Louise Doswald-
Beck. p. 259; Chemical Weapons Convention, article I

13
Tadic case, Interlocutory Appeal

14
Supra 8, p. 583

15
Rome Statute, article 28(2); 1977 Protocol Additional to the Geneva Conventions, article. 86; ICTY Statute,
article. 7(3); ICTR Statute, article. 6(3)

16
Prosecutor v. Aleksovski (Judgment), ICTY-IT-95-14/1-T, p.78 (Trial Chamber 1999)

17
14 Prosecutor v. Delalic (Judgment), ICTY-IT-96-21-T, p.346 (Trial Chamber 1998)

18
15 Prosecutor v. Krnojelac (Judgment), ICTY-IT-97-25-T, p.95 (Trial Chamber 2002)

14
moreover, admitted his actual knowledge on the attack and its consequence. However, General
Kanube did not take any measure to prevent this tragedy, nor to punish his subordinate perpetrator.

Killing Manos Tshombe and his followers by using poisonous gas.

Lt. General Jacob Smith instructed his subordinates that no quarter would be given to Arantics.
After discovering Manos Tshombe and his followers hiding in a cave, Col. Ramsey McGibbon led a
battalion of RAF and killed them with poisonous gas.

A.! Col. Ramsey Gibbon and Lt. Jacob Smith committed war crime by employing
poisonous gas.

Col. Ramsey used poison gas to kill Manos Tshombe and his follower, as elaborated
before, this constitutes war crime under Article 8 (2) (b) (xviii).

B.! By his instructions, Lt. General Kanube commits war crime of denying quarter.

There are five elements for war crime of denying quarter: order of no survivors; intent of
threaten or conduct hostilities; effective command or control; context or association with an
armed conflict not of an international character; awareness of existence of an armed conflict.19By
instructing, Jacob Smith substantially orders no quarter will be given and all the other four
elements are also satisfied in the present. Therefore, Jacob Smith committed war crime of
denying quarter under Article (2) (e) of Rome Statute.

Other atrocities in Libertaria Libertaria

Liberation Army (LLF hereafter) and RAF should be responsible for the five months’
atrocities. As the leaders of the LLF and RAF, Sano NBonga and Lt. General Jacob Smith should be
individually responsible for the crimes committed by LLF and RAF respectively.

A. Genocide of preventing birth

(1) Actus reus

Impregnating women constitutes a measure intended to prevent births whenever such a

measure is systematically taken to change the ethnic character of the population.20

19
Elements of Crimes, PNICC/2000/1/Add.2

20
Prosecutor v. Akayesu, Case No.ICTR-96-4-T (on appeal)

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(3)!Mens rea

Dolus specialis is required in Genocide, namely, with the intent to destroy in whole or in part,
a national, ethical, racial religious group.21LLF kidnapped Arantic girls and gave them to
RAF commanders as “wives” and forced them to cohabit with the latter with the intention to
let them bear Naasthist children. Examined in the context of the internal war in Libertaria and
the racist instruction given by President Rabuko and Lt. General Jacob Smith, the underlying
purpose of this measure is to prevent Arantic girls from giving birth to Arantic children.

B. Crimes Against Humanity

During five months of fighting in Libertarians, LLF and RAF’s kidnapping and other
conducts constitute crimes against humanity under Article 6 of Rome Statute.

(1)!Crimes against humanity of enslavement

LLF and Libertarian Army kidnapped children of both races and forced the boys to carry
military supplies like human mules without any mercy. The statistics22 showed that this is
widespread atrocity throughout Libertaria. LLF violated international humanitarian law
which protected the civilians from forced labor and its leader committed crimes against
humanity under article 7(1)(c) of the Rome Statute.

(2)!Crimes against humanity of forced pregnancy

As elaborated earlier, LLF and RAF forces also committed crimes against humanity of forced
pregnancy under Article 7 (g) of the Statute.

C. War Crimes

(1) Conscripting and using children under age of fifteen years

The LLF kidnapped children under 15 to join its ranks. This alone violated Article 8(2)(e)(vii)
of ICC Statute and constitutes war crimes of using, conscripting children.

(2)!Violation of Article 3 common to four Geneva Conventions

Common Article 3 prohibits murder and mutilation. Using another person to commit a crime
is punishable under Article 25(3)(a) of the Statute. After being kidnapped, the Arantic
children were forced to mutilate and murder their family members. Therefore, the LLF and

21
Rome Statute, article 6

22
Moot problem, para.14.

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RAF forces committed war crimes of mutilation and murder under Article 8(2)(c) of the
Statute.

D. Superior responsibility of President Rabuko and General Kanube

(1) Effective authority and control over RAF

President Rabuko and General Kanube had effective authority and control over RAF and LLF
in Libertaria. RAF is a part of the General Kaunbe’s army and General Kanube admitted this
by his clarification for “his force”. President Rabuko had effective control over RAF since he
personally appointed General Kanube as the chief of the Libertarian armed forces and gave
them authorization by an official decree.

(3)!Actual knowledge

Given the scale and the continuing of the atrocities in the fighting, they either knew, or should
have known, or consciously disregarded information, which clearly indicated that the
subordinate were committing, or about to commit such crimes.23

(4)!No measure to prevent or punish

In all relevant times, they did not take any measures to prevent or repress their commission
or to submit the matter to competent authorities for investigation and prosecution.

Conclusively, President Rabuko and General Kanube bear superior responsibility under
Article 28 of the Statute for RAF and LLF’s commissions.

23
Rome Statute, article 28(a)(i) and (b)(i); Yamashita Case, U.N. War Crimes Commission, 4 Law Reports of
Trials of War Criminals 3-4 (1948).

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V.! PRAYER FOR RELIEF

The Prosecutor (Applicant), thus, respectfully request the this Honorable Court to adjudge
and declare that:

•! The Court has jurisdiction on this case and the case at bar is admissible.

•! Lt. General Jacob Smith and General Kanube, as the Commander, are liable for the
attack in Zimbaloon region.

•! Col. Ramsey Gibbon and Lt. General Jacob Smith should be Responsible for killing
Manos Tshombe and his followers by using poison gas.

•! Sano NBonga, Lt. General Jacob Smith and General Kanube are responsible for
atrocities took place in Libertaria and General Kanube as well as President Rabuko is
criminally responsible under Command Responsibility Doctrine.

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