BEIJING, CHINA

MEMORIAL FOR THE RESPONDENT

Word Count: 2000

1
 TEAM BJIHL1102

MEMORIAL FOR THE RESPONDENT *

* OSCOLA (4th edn) as the citation standard.

2
I. DABAR IS NOT GUILTY FOR THE CRIME AGAINST HUMANITY OF DEPORTATION

AND FORCIBLE TRANSFER.

1. Pursuant to Elements of Crimes (‘EOC’) Article 7(1)(d), the crime against

humanity of deportation and forcible transfer requires five elements amongst which
Dabar and the alleged conducts on 3 and 12 February 2009 fail to meet the following
three elements.
2. As to Element 1, no evidence indicates that Dabar has ever personally and
directly deported or forcible transferred any person. Even if the armed groups that
shall take responsibility for the acts of 3 February 2009 had declared to take guidance
from Dabar, he shall not bear individual criminal responsibility.1
3. In addition, the conduct on 12 February in Pleasant Garden area amounts to an
evacuation of civilians for their security, which is permitted under international law.
Pursuant to 1949 Geneva Convention (‘GC’) IV Article 49(2), evacuation outside the
bounds of the occupied territory is allowed when there is material reason for such
displacement and the evacuated persons are transferred back as soon as the hostilities
cease. In the present case, the residential area became increasingly dangerous because
of the random attacks against the Lemis. Hence, the NDRA and NSA have material
reasons to displace the Lemis outside the bounds of Losovo for the sake of their
security. In addition, the transferred Lemis were promptly allowed to go on 6 July
2009 as soon as the hostilities in the area ceased.
4. As to Element 4, the conducts were not part of a widespread or systematic
attack against civilian population.
5. First, there was no aforesaid attack as background at all. Pursuant to Rome Statute
(‘ICCSt’) Article 7(2)(a), the attacks shall be committed ‘pursuant to or in furtherance
of… organizational policy’. However, the random attacks in Vanilia were separately
launched by isolated individuals without a unified military strategy, a command
structure, or any disciplinary within a group. Without any ‘organizational policy’, the
attacks in question are not qualified as an attack under ICCSt, not to mention the lack

1
Infra, paras 24-27.

1
of widespread and systematic character as required in Element 4.
6. Second, even if the attacks were widespread or systematic, the conducts in
question are not relevant to them in any manner. Pursuant to ICCSt Article 7(2)(a), a
conduct shall be ‘sufficiently connected with’ the attack in order to be part of it.2
However, the conducts which amounts to an evacuation with a bona fide purpose of
protecting civilians is different by its nature from the attacks. Further, no evidence
indicates that the attacks which occurred in various places in Vanilia were launched by
Dabar or the armed groups in question. Thus the last possible link between the attacks
and the conducts is rejected.
7. As to Element 5, even if there were any deportation or transfer as part of an
aforesaid attack, there is no evidence that Dabar knew. As implied in all of his
statements, Dabar has always been promoting Lemi-friendly policies,3 which can be
further affirmed through the fact that no civilian was injured or killed during their stay
in camps. The alleged conducts, which are clearly inconsistent with Dabar’s policies
could by no means launched within his knowledge or permission, assuming he has
control over the pro-independence groups. Otherwise, the ignorance of Dabar’s
holdings by the groups would negate Dabar’s de facto leading position, and
consequently negate Dabar individual criminal responsibility.
8. In conclusion, Dabar is not guilty for the alleged crime against humanity as
Element 1, 4 and 5 are not fulfilled.

II. DABAR IS NOT GUILTY FOR THE WAR CRIME OF TAKING HOSTAGES.
9. Pursuant to EOC Article 8(2)(c)(iii), the war crime of taking hostages requires
seven elements amongst which Dabar fails to meet the following five.
10. As to Element 1, the possible conducts of the NDRA and NSA on 12 February
2009 that may criminalize Dabar with taking hostages can be justified as an
evacuation of civilians with security reasons permitted under international law.4

2
Prosecutor v Kunarac and others, Case No: IT-96-23&IT-96-23/1-A, ICTY Appeals Chamber,
Judgment, 12 June 2002, para 100.
3
Asia-Pacific Moot Court National Rounds 2011, Moot Problem (‘Facts’), paras 9-11.
4
Supra, para 3.

2
Hence, none of the alleged conducts amount to seizure, detention, or holding hostages
within the meaning of this element.
11. As to Element 2, no evidence indicates that Dabar has ever directly or
indirectly threatened the Lemi civilians with death, injury or further detention.
The welcoming policy to humanitarian organizations can be strong evidence which
negates such threat. As the most renowned impartial and neutral organization acting
as the guardian and promoter of international humanitarian law (‘IHL’), should any
threat in forms of ill-treatment existed, ICRC would have repeated visits as often as
they deem necessary.5 Hence, the well implementation of IHL in camps shall be left
unchallenged, and no threat within the meaning of Element 2 is established in the
present case.
12. As to Element 3, no evidence indicates Dabar has compelled any subjects into
certain act as a condition for the safety or release of the Lemis. The camp was
evacuated at the end of June 2009 as soon as the said attacks ceased, without any
specific intention within the meaning of Element 3 indicated or achieved. The well
implementation of IHL in camps6 further implies the absence of such intention, and
hence negates Dabar’s criminal responsibility.
13. As to Element 6, no non-international armed conflict (‘NIAC’) existed when
the alleged conduct occurred.
14. An armed conflict is non-international in character if it is protracted armed
conflict between government authorities and organized armed groups or between such
groups within a State.7 The violence in question fails to meet the said thresholds
considering the absence of any exchange of fire between Vanilian forces and any
armed groups, or within the said groups.
15. Alternatively, even if any exchange of fire between the said parties had occurred,
no evidence indicates the ‘organized’ character of the armed groups. The ‘organized’

5
Marina Staiff, ‘Visits to Detained Torture Victims by the ICRC (I) Management, Documentation, and
Follow-up’ (2000) 10 Torture 4.
6
Supra, para 11.
7
Prosecutor v Tadic, Case No: IT-94-1-A, ICTY Appeals Chamber, Judgement, 15 July 1999, paras
138-40.

3
character focuses on the need for the armed groups to have the ability to plan and
8
carry out military operations for a prolonged period of time. The isolated groups
that launched the random attacks without an organizational policy9 obviously negates
the existence of such ability.
16. As to Element 7, there is no evidence to prove Dabar’s knowledge of the said
attacks that might constitute the factual circumstances establishing an NIAC.
The aforesaid disorganizations of the said armed groups10 further proved the absence
of such awareness.
17. In conclusion, Dabar is not guilty for the alleged war crime of taking
hostages as Element 1, 2, 3, 6 and 7 are not fulfilled.

III. DABAR IS NOT GUILTY FOR THE WAR CRIME OF WILFUL KILLING.
18. Pursuant to EOC Article 8(2)(a)(i), the war crime of willful killing requires five
elements amongst which Dabar fails to meet the following four elements.
19. As to Element 1, there is no evidence indicating that Dabar personally and
directly caused the deaths. As the NDRA declared, the persons taken away on 10
June 2009 were no longer in their custody. Since the Applicant fails to provide any
solid evidence for the tangible causal link between the 15 human remains found on 22
June 2009 and the NDRA, the imputation against the NDRA shall be rejected. So does
the imputation against Dabar. Even given that the NDRA’s conducts could be
attributed to him, the argument of which shall also be rejected with the absence of
evidence. Hence, Element 1 is not fulfilled.
20. As to Element 2, even if there was any evidence indicating Dabar has caused
the deaths, the objects of the action were not under the protection of the GCs.
According to GC IV, a protected person shall be in the hand of a Party of which they
are not nationals.11 However the said persons have the nationals of Losovo, for the
fact that ‘the first official act of the new government was to grant by decree Losovo

8
Prosecutor v Lubanga, Case No: ICC-01/04-01/06, Pre-Trial Chamber I, Decision on the
Confirmation of Charges, 29 January 2007 (‘Lubanga’), para 234.
9
Supra, para 5.
10
Ibid.
11
GC IV, Article 4.

4
citizenship to all Lemis residing in the province’.12 Hence, any crime against the said
victims shall be within the jurisdiction of municipal law of Losovo, not international
law instead.
21. Element 3 is not fulfilled for the mistake of fact. Even if the victims were
non-combatants and in protection of GC IV, a mistake of fact regarding their
protective status shall be a ground for excluding criminal responsibility since it
negates the mental element required by the crime.13 Considering the fact that the
NDRA was aware that Vanilian forces were employing civilians to counter their
control and that the victims and Vanilia-manufactured were found in the same
building, it is reasonable to assume that the occupants were Vanilian forces who
camouflaged to be civilians. If it was proved otherwise, such assumption would
constitute a mistake of fact regarding the victims’ protective statutes, which negates
the mental element of Dabar and therefore becomes a ground for excluding his
criminal responsibility, if there was any.
22. As to Element 4, the conduct took place in an NIAC. A State is defined as ‘a
community which consists of a territory and a population subject to an organized
political authority; that such a State is characterized by sovereignty’ 14 . Losovo,
although declared the independence on 28 May 2009, neither consists of a territory
nor a population subject. Given that an armed conflict is international in character
when it occurs between states 15 , the conduct in the present case is of a
non-international character.
23. In conclusion, Dabar is not guilty for the alleged war crime of willful killing
as Element 1, 2, 3 and 4 are not fulfilled.

IV. INDIVIDUAL CRIMINAL RESPONSIBILITY

24. Even if all the aforesaid elements of alleged crimes were fulfilled, Dabar shall
not be individually criminally responsible for such conducts committed by the

12
Facts, para 16.
13
ICCSt, Article 32(1).
14
Opinion 1, Badinter Arbitration Committee, in Alain Pellet, ‘The Opinions of the Badinter
Arbitration Committee’ (1992) 3 EJIL 178, 182.
15
Lubanga, para 209.

5
NSA or the NDRA.
25. The individual criminal responsibility shall be determined strictly in accordance
with the requisite material and mental elements under ICCSt Article 25(3) or 28. It is
the agreed fact that Dabar never first-hand perpetrated any alleged conducts. Thus the
conduct that is most likely to criminalize him the said articles would be his orders to
the said armed groups. However, the sole order by Dabar that has been tangibly
proved in this case was the one to erect roadblocks in the residential area and any
charge based on this order shall be rejected for the following two reasons.
26. First, no provision in ICCSt or EOC forbids a roadblock. Thus the content of the
order is completely lawful and would by no means criminalize Dabar with any crimes
under ICCSt Article 25(3).
27. Second, as the only order Dabar ever made, his ‘authority or control’ implied in it
is far from ‘effective’ to establish a superior-subordinate relationship. Dabar has
barely any ability of issuing orders or taking actions16, not to mention the material
ability to prevent or punish subordinates’ criminal conduct17. Hence, the position of
merely a guidance provider would by no means result in Dabar’s individual criminal
responsibility under ICCSt Article 28.

16
Prosecutor v Blaskic, Case No: IT-95-14-T, ICTY Trial Chamber I, Judgement, 3 March 2000, paras
300-02.
17
Prosecutor v Delalic and others, Case No: IT-96-21-A, ICTY Appeals Chamber, Judgement, 20
February 2001, para 256.