TABLE OF CONTENTS

Sr.
TITLE Page No.
No.

1. Index of Authorities 5

2. Statement of Jurisdiction 15

3. Identification of issues 16

4. Statement of Facts 17

5. Summary of Pleadings 18

6. Pleadings 19

I. THE ACCUSED DID NOT COMMIT A WAR CRIME 20

UNDER ARTICLE 8(2)(b)(viii)

[A.] There was no state involvement in the transfer of

19
population

A.1. Direct transfer 19

A.2. Indirect transfer 20

[B.] The transfer was temporary in nature, making the

demographic change inconsistent with the end goal of

21
occupation, defeating the legislative intent behind Art.

8(2)(b)(viii).

[C.] The accused lacks requisite mens rea under article

22
30.

C.1 The accused takes the defence of mistake under

22
article 32(3)

MEMORIAL ON BEHALF OF DEFENCE| 1

C.1.1. The mental element is negated by mistake. 22

C.1.2. The combination of mistake and superior

responsibility under article 33 relieves the accused of any 23

liability

C.1.2.A. There was legal obligation to obey. 24

C.1.2.B. The accused did not know that the order was
24
unlawful

C.1.2.C. The order was not manifestly unlawful. 24

[D.] There is no individual responsibility under art. 25 25

D.1. H. Zambawa was responsible for the transfer. 25

D.2. The accused did not have Individual responsibility

26
under art. 25(3)(b) or article 25(3)(c).

D.2.1. Article 25(3)(b) 27

D.2.2. Article 25(3)(c) 27

D.2.3. Common thread of substantial effect is not present 27

II THE ACCUSED IS NOT GUILTY OF COMMITTING A 28

CRIME AGAINST HUMANITY UNDER ARTICLE 7(1)(h)

[A.] The alleged crime was not in furtherance of

29
organisational policy.

[B.] The attacks were not widespread or systematic in

29
nature.

B.1. Not systematic in nature 30

B.2. Not widespread in nature 31

[C.] The accused did not have the requisite mens rea 31

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 [D.] The attacks were not directed against an identifiable
32
group.

D.1. Intentional and severe deprivation of fundamental

33
rights by reason of identity of the group cannot be shown.

D.2. The conduct was not related to any act under article
33
7 or any crime within the jurisdiction of the court.

[E.] The accused is not responsible as an individual or a

34
commander.

E.1. No individual responsibility 35

E.1.1. The accused is not an indirect perpetrator or a co-

35
perpetrator under article 25(3)(a).

E.1.2. The accused did not order or solicit the commission

36
of the crime under art. 25(3)(b).

E.1.3. The accused did not abet or aid the commission of

36
the crime under article 25(3)(c).

E.2. No command responsibility 37

E.2.1. The accused did not have effective command or

37
control over his subordinates in ZOAK.

E.2.2. The accused did not know or have any reasons to

know about the crime and had no duty to take necessary 38

or reasonable measures within his powers.

7. Prayer
40

MEMORIAL ON BEHALF OF DEFENCE| 3

 INDEX OF AUTHORITIES

Articles

Andreas Zimmerrmann, Palestine and the International Criminal

19
Court QuoVadis? Reach and Limits of Declarations under Article

12(3), J. INT’L CRI. JSTCE. 304 (2013).

Jessica Liang, Defending the Emergence of the Superior Orders

24
Defense in the Contemporary Context, GOET. J. INT’L. L. 871

(2010).

Yael Ronen, Taking the Settlements to the ICC? Substantive 19, 21

Issues, SSRN. E. J. 57 (2017).

Books

OTTO TRIFFTERER & KAI AMBOS, ROME STATUTE OF THE 20

INTERNATIONAL CRIMINAL COURT: A COMMENTARY (2016).

ADRIAAN BOS ET AL., REFLECTIONS ON THE INTERNATIONAL CRIMINAL 21

COURT: ESSAYS IN HONOUR OF ADRIAAN BOS (1999).

AMBOS, DER ALLGEMEINE TEIL DES VÖLKERSTRAFRECHTS (2004). 25

AMBOS, TREATISE ON ICL II 77 (2014). 32

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 ANTONIO CASSESE, PAOLA GAETA & JOHN R. W. D. JONES, THE
22
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A

COMMENTARY (2009).

BERT ROLING, THE SIGNIFICANCE OF THE LAWS OF WAR, IN

20
CURRENT PROBLEMS OF INTERNATIONAL LAW (1975).

HÉCTOR OLÁSOLO ET AL., CRIMINAL RESPONSIBILITY OF SENIOR

POLITICAL AND MILITARY LEADERS AS PRINCIPALS TO INTERNATIONAL 26

CRIMES (2010).

KAI AMBOS, TREATISE ON INTERNATIONAL CRIMINAL LAW I (2013). 23

ROBERT CRYER ET AL., AN INTRODUCTION TO INTERNATIONAL

21
CRIMINAL LAW AND PROCEDURE (2016).

WILLIAM A. SCHABAS, THE INTERNATIONAL CRIMINAL COURT: A

25
COMMENTARY ON THE ROME STATUTE (2016).

YÔRĀM DINŠṬEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF

23, 24
INTERNATIONAL ARMED CONFLICT (2016).

YÔRĀM DINŠṬEIN, THE DEFENCE OF 'OBEDIENCE TO SUPERIOR

24
ORDERS' IN INTERNATIONAL LAW (1965).

Cases

ICC Cases

Prosecutor v. Katanga & Ngudjolo Chui, ICC-01/04-01/07-717,

Decision on the Confirmation of Charges (Sept. 30, 2008). 26,32

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Kenya Investigation Authorization, ICC-01/09, Decision Pursuant
30,31
to Article 15 of the Rome Statute on the Authorization of an

Investigation, Situation in the Republic of Kenya (Mar. 31, 2010).

Prosecutor v. Abu Garda, ICC-02/05-02/09, Decision on

30
Confirmation of Charges, Situation in Darfur Sudan (Feb. 8, 2010).

Prosecutor v. Bemba, ICC-01/05-01/08, Decision Pursuant to

31,35
Article 74 of the Statute, Situation in the Central African Republic

(Mar. 21, 2016).

Prosecutor v. Bemba, ICC-01/05-01/08-424, Decision Pursuant to 29,30,31

Article 61(7)(a) and (b) of the Rome Statute, Situation in the

Central African Republic (Jun. 15, 2009).

Prosecutor v. Katanga, ICC-01/04-01/07, Decision on the

30
Prosecutor’s Bar Table Motions, Situation in the Democratic

Republic of Congo (Dec. 17, 2010).

Prosecutor v. Katanga, ICC-01/04-01/07, Judgment Pursuant to

35
Article 74 of the Statute, Situation in the Democratic Republic of

Congo (Mar. 7, 2014).

Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on Motion by

the Defense to Exclude Anonymous Hearsay Testimony of the 30

Prosecutor Witness, Situation in the Democratic Republic of

Congo (Nov. 9, 2006).

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 Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the
35,36
Confirmation of Charges, Situation in the Democratic Republic of

Congo (Jan. 29, 2007).

Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment

36
pursuant to Art. 74 of the Rome Statute, Situation in Democratic

Republic of Congo (Mar. 14, 2012).

Prosecutor v. Mbarushimana, ICC-01/04-01/10-465-Red, Decision

30,33,36
on the Confirmation of Charges, Situation in the Democratic

Republic of the Congo (Dec. 16, 2011).

Prosecutor v. Ntaganda, ICC-01/04-02/06-309, Decision Pursuant

36,37
to Article 61(7)(a) and (b) of the Rome Statute, Situation in the

Democratic Republic of Congo (Jun. 9, 2014).

Republic of Côte d'Ivoire Investigation Authorisation, ICC- 02/11,

Decision Pursuant to Article 15 of the Rome Statute on the 29

Authorisation of an Investigation, Situation in the Republic of Côte

d'Ivoire (Oct. 3, 2011).

ICJ Cases

Legal consequence of construction of a wall in the occupied

19
palestinian territory, Advisory Opinion, 2004 I.C.J. Rep. 136,

(July 9).

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ICTR Cases

Prosecutor v. Ndindjiliyimana, et al., ICTR-00-56-T, Trial 27

Judgement and Sentence, (May. 17, 2011).

28,30,31
Prosecutor v. Akayesu, ICTR-96-4-T, Trial Judgment,

(Sept. 2, 1998)

Prosecutor v. Kayeshima, ICTR 95-1-A, Appeal Judgment, 28,38

(May.21, 1999).

Prosecutor v. Musema, ICTR-96-13-A, Appeal Judgment, 31

(Jan. 27, 2000).

Prosecutor v. Renzaho, ICTR-97-31-A, Appeal Judgment, (Jul. 14, 27

2009).

ICTY Cases

Prosecutor v. Erdemović, ICTY-IT-96-22-A, Appeal Judgment (Oct. 7,

23
1997).

Prosecutor v. Aleksovski, ICTY-IT-95-14/1-T, Trial Judgment (Jun. 25, 39

1999).

Prosecutor v. Blagojević, ICTY-IT-02-60-T, Trial Judgment (Jan. 17, 30

2005).

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 Prosecutor v. Blaškić, ICTY-IT-95-14-T, Judgment (Mar. 3, 2000) 25,36

38

Prosecutor v. Delalić, ICTY-IT-96-21-A, Appeal Judgment (Feb. 20,

2001).

28,38,39
Prosecutor v. Delalic, ICTY-IT-96-21-T, Trial Judgment (Nov. 16, 1998)

Prosecutor v. Dordevic, ICTY-IT-05-87/1-A, Appeal Judgment (Jan. 27, 32

2014).

Prosecutor v. Galić, ICTY-IT-98-29- A, Appeal Judgment (Nov. 30, 38

2006).

Prosecutor v. Hadžihasanović and Kubura, ICTY-IT-01-47-T, Trial 38

Judgment (Mar. 15, 2006).

Prosecutor v. Halilović, ICTY-IT-01-48-A, Appeal Judgment (Oct. 16, 37

2007).

Prosecutor v. Karadžić, ICTY-IT-95-5/18-T, Trial Judgment (Mar. 24, 32

2016).

Prosecutor v. Kordic, ICTY-IT-95-14/2-A, Appeal Judgment (Dec. 17, 30

2004);

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 Prosecutor v. Kordic, ICTY-IT-95-14/2-T, Trial Judgment (Feb. 26,
38
2001).

Prosecutor v. Krnojelac, ICTY-IT-97-25-A, Appeal Judgment (Sept. 17, 38

2003).

Prosecutor v. Kunarac et al., ICTY-IT-96-23& IT-96-23/1-A, Appeal 31

Judgment (Jun. 12, 2002).

Prosecutor v. Kupreškić, ICTY-IT-95-16-T, Trial Judgment (Jan. 14, 31

2000).

Prosecutor v. Milomir Stakic, ICC IT-97-24-T, Trial Judgment (Jul. 31, 32

2003).

Prosecutor v. Naletilić, ICTY-IT-98-34-T, Trial Judgment (Mar. 31, 30

2003);

Prosecutor v. Orić, ICTY-IT-03-68-A, Judgment (Jul. 3, 2008) 37

Prosecutor v. Strugar, ICTY-IT-01-42-T, Trial Judgment (Jan. 31, 36,37

2005)

Prosecutor v. Tadic, ICTY-IT-94-1-Tbis-R117, Trial Sentencing 28,31,32

Judgment (Nov. 16, 1998).

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 Prosecutor v. Tarculovski, ICTY-IT-04-82-A, Appeal judgment (May.
27
19, 2010).

Prosecutor v. Vasiljević, ICTY-IT-98-32-A, Appeal Judgment (Feb. 25, 38

2004)

IMT Cases

Case of the Major War Criminals, IMT Nuremberg-Count 3(J), 21

Indictment, (Nov. 20, 1945).

National Cases

A-G of Israel v. Eichmann, (1961) 36 ILR 18 (District Court

25
Judgement).

A-G of Israel v. Eichmann (1962) Criminal Appeal 336/61(Appeal 26

Judgement)

Federation Nationale des Deportes et Internes Resistants et

29
Patriotes and Others v. Barbie, 78 I.L.R. 137 (1985).

Hinzman v. Canada, (2009) FC 415 (Canada Federal Court); 23

Dover Castle case, 16 AJIL (1921)

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 In re Eck and Others (The Peleus case), UK military Court at 23

Hamburg, judgment, (1946).

Documents

Elements of Crime, Official Journal of the International Criminal 29,31,32

Court, ICC-ASP/1/3 (Sept. 9, 2002).

ICL Draft Code of Crimes against the Peace and Security of

Mankind with Commentaries, YbILC (1996) 24.

ICC Resolutions

ICC Resolution No. ICCASP/12/Res.7 (Nov. 27, 2013). 30

Manuals

US, Naval Handbook (1995), § 8.1.1 34

34
Naval Manual (1989), § 8.1.1

Ecuador, Naval Manual (1989), § 8.1.1.; US, Naval Handbook 34

(1995), § 8.1.1

Netherlands, Aide-Memoire for IFOR Commanders (1995), § 12.

34

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 Report

Report of the Commission to the General Assembly on the work of

27
its forty eighth session, [1996] 2 Y.B. Int’l L. Comm’n (XX), U.N.

Doc. A/CN.4/SER.A/1996/Add. 1 (Part 2).

Statutes and Treaties

20,22,23,29
Rome Statute of the International Criminal Court, adopted on Jul. 17,
35,38
1998, 2187 U.N.T.S. 99.

Protocol Additional to the Geneva Conventions of 12 August

1949, and relating to the Protection of Victims of International 34

Armed Conflicts (Protocol I), 1125 U.N.T.S 3.

Geneva Convention Relative to the Protection of Civilian 34

Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287.

UN Resolutions

S.C. Res. 452, S/RES/ 452 (July 20, 1979) 19

19
S.C. Res. 465, S/RES/465 (March 1, 1980)
19
S.C. Res. 446, S/RES/446 (March 22, 1979)

39
S.C. Res. 780, S/RES/780 ¶ 58 (1992)

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Affirmation of the Principles of International Law recognised by the 32

Charter of the Nurnberg Tribunal, GA, Res. 95(I).

Websites

INTERNATIONAL COMMITTEE RED CROSS,

25
https://www.icrc.org/eng/resources/documents/article/other/57jq7h.

htm, (last visited Sep 8, 2018).

What is WORKMAN? definition of WORKMAN (Black's Law

20
Dictionary), THE LAW DICTIONARY (2011),

https://thelawdictionary.org/workman/ (last visited Sep 5, 2018).

Methods and means of warfare, INTERNATIONAL COMMITTEE OF THE

RED CROSS, https://www.icrc.org/eng/war-and-law/conduct- 34

hostilities/methods-means-warfare/overview-methods-and-means-

of-warfare.htm (last visited Sep 7, 2018).

MEMORIAL ON BEHALF OF DEFENCE| 14

 STATEMENT OF JURISDICTION

The Honourable International Criminal Court (“ICC”) has jurisdiction in the present matter under

Article 5(b) and (c) of the Rome Statute of the ICC, pursuant to Article 13(c) read in accordance

with Article 15. This matter is before the Trial Chamber.

MEMORIAL ON BEHALF OF DEFENCE| 15

 IDENTIFICATION OF ISSUES

-I-

WHETHER BRIGADIER G. KUMANOVA IS LIABLE FOR COMMITTING THE W AR CRIME OF TRANSFER

UNDER ARTICLE 8(2)(B)(VIII) OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT?

-II-

WHETHER BRIGADIER G. KUMANOVA IS LIABLE FOR COMMITTING CRIMES AGAINST HUMANITY OF

PERSECUTION UNDER ARTICLE 7(1)(H) OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL

COURT?

MEMORIAL ON BEHALF OF DEFENCE| 16

 STATEMENT OF FACTS

1. Zamharta and Khawransik are two countries situated in continent X. Continent X

comprises of 50% followers of Zambua religion, 30% followers of Niwansik religion

and 20% of Khaw tribes. The cultural practices of Haw-Niwansik are similar to the

Khaw tribes. The two countries became independent in 1950 and 1970 respectively

and had previously signed a treaty in 1948 called ‘Agreements of Mutual Coexistence’.

A new political organization named United X formed the government in Zamharta in

the year 1995 under the leadership of Mr. H. Zambawa.

2. Mr. H. Zambawa declared war against Khawransik on 20 December 2011 and by

31 December 2011 almost half of Khawransik came under the control of Zamharta.

On 01 January 2012, Mr. H Zambawa established Zamaharta’s Occupying Authority

over Khawransik (ZOAK) and appointed Brigadier G Kumanova as Principal

Administrator of ZOAK. ZOAK through its Order No. 16, of 15 January 2012 provided

for bringing workmen from Zamharta. In the meantime, Mr. H Zambawa died in a plane

crash.

3. Brigadier G. Kumanova, became the supreme political and military authority of

Zamharta and launched attacks against the unoccupied territories of Khawransik on

15 June 2012, attracting coalition of international forces called Super Seven. On 27

July 2012, some ZOAK authorities entered a village and ordered arson of all the

houses belonging to Haw-Niwansik population, who had previously attacked them.

Further, on 29 July 2012 ZOAK ordered arson of two schools dedicated to the

teachings of Khaw tribe and murdered two guards. Soon thereafter, Zamharta was

defeated and Brigadier was arrested and bought before the International Criminal

Court.

MEMORIAL ON BEHALF OF DEFENCE| 17

 SUMMARY OF PLEADINGS

I. THE ACCUSED DID NOT COMMIT A WAR CRIME UNDER ART. 8(2)(b)(viii).

The Accused is not liable since there was no state involvement in the commission of the

crime. The transferred population was not provided with any incentives in order to encourage

them to transfer into the occupied territory. Also, the transfer was temporary in nature. The

Accused lacks mens rea under Art. 30 and takes the defence of mistake of law as per Art.

32(2). Also, the combination of mistake and superior orders under Art.33 relieves the

Accused of any liability since the conditions laid down in the article have been satisfied.

Furthermore, the Accused is not individually liable under Art. 25, due to the application of

the doctrine of Organisationsherrschaft. Alternatively, the liability cannot be attracted under

Art. 25(3)(b) and Art. 25(3)(c), since the order did not play a substantial role in the

commission of the crime.

II. THE ACCUSED IS NOT GUILTY OF COMMITTING CRIMES AGAINST HUMANITY.

The Accused is not liable since the crime was not in furtherance of an organisational policy.

The alleged attacks on 27 and 29 July cannot be considered systematic or widespread as

the attacks were singular in nature and there exists no pattern of the attacks. The Accused

lack the mens rea requirement as it the Accused didn’t possesses the discriminatory intent.

The attacks were not directed against an identifiable group, since they were directed

against different religious groups. Further, the attacks were led by military necessity. The

Accused has no liability under Art. 25, since he did not facilitate the commission of the

crime. The Accused is not liable under Art. 28, since The Accused did not have effective

command and control over his subordinates in ZOAK.

MEMORIAL ON BEHALF OF DEFENCE| 18

 PLEADINGS

I. THE ACCUSED DID NOT COMMIT A WAR CRIME UNDER ART. 8(2)(b)(viii).

1. The act of the Accused, Brigadier G Kumanova on January 15, 2012 does not constitute a

violation of Art. 8(2)(b)(viii) as there existed no state involvement in the transfer of civilian

population [A.]; The transfer was only temporary in nature, negating the legislative intent of

the prohibition [B.]; the Accused did not have the requisite mens rea for commission of crime

[C.]; Alternatively, the Accused has no individual criminal responsibility under Art. 25 of the

Rome statute [D.]. Thus, the Accused is not responsible for the crime.

[A.] There was no state involvement in the transfer of population.

2.The term ‘transfer’ denotes a physical displacement of the persons to take residence in the

respective occupied territories.1 Transfer of population requires an operational state

apparatus.2 Once it has taken place it comes to an end, even if the respective settlers then

remain in such territory.3 Thus, for a transfer the state must play a major role in the process of

transferring civilian population to the occupied territory. A state can transfer population directly

or indirectly.

A.1. Direct transfer.

3. Direct transfer would for instance include the provision of government settlement plans for

its own population in occupied territory and the construction of housing by the state.4

Settlements in occupied territory only amount to war crimes if the Occupying Power’s

1 Andreas Zimmermann, Palestine and the International Criminal Court QuoVadis? Reach and Limits of

Declarations under Article 12(3), J. INT’L CRI. JSTCE. 304, 324 (2013).
2 Yael Ronen, Taking the Settlements to the ICC? Substantive Issues, SSRN. E. J. 57, 58 (2017).
3 supra 1.
4 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Advisory Opinion, 2004

I.C.J. Rep. 136, ¶ 120 (July 9); S.C. Res. 446, (March 22, 1979); S.C. Res. 452, (July 20, 1979); S.C. Res. 465,

(March 1, 1980).

MEMORIAL ON BEHALF OF DEFENCE| 19

authorities are involved.5 In the case of settlements, the crime is not only "caused by the

system,"6 but is carried out by it.7 In the present case, the workmen came to occupied territory

after the issuance of Order No. 16, however there existed no settlement plan for the workmen

who came into the occupied territory at the time of transfer. ZOAK provided housing facilities

to the workmen only after the transfer had already been completed. Thus, there was no direct

transfer.

A.2. Indirect transfer.

4. Indirect involvement of the state would include policies and measures to induce and

facilitate migration into occupied territory, such as economic and financial incentives,

subsidies, and tax exonerations.8 There was no such inducement in the present case. The

order provided for bringing workmen or for training willing citizens of Khawransik.

Consequently, Zamhartan workmen came and they were placed in administrative and mining

jobs. But since a workman is an already employed person9, it cannot be said that inducement

in the form of jobs was given to the workmen. The movement of people on their own without

government involvement cannot be considered a transfer. There may have been other

motivating factors which could have led to the pouring of the workers into occupied territory

such as the call by Mr. H Zambawa to citizens for joining and helping in the war effort. Thus,

the state involvement cannot be proven beyond reasonable doubt.10

[B.] The transfer was temporary in nature, making the demographic change

inconsistent with the end goal of occupation, defeating the legislative intent behind Art.

5 OTTO TRIFFTERER & KAI AMBOS, ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 410 (2016).
6 BERT A.V ROLING, THE SIGNICANCE OF THE LAWS OF W AR, IN CURRENT PROBLEMS OF INTERNATIONAL LAW 133 (1975).
7 supra 2.
8 supra 4.
9 What is WORKMAN? definition of WORKMAN (Black's Law Dictionary), THE LAW DICTIONARY (2011),

https://thelawdictionary.org/workman/ (last visited Sep 5, 2018).

10 Rome Statute of the International Criminal Court art. 66, adopted on Jul. 17, 1998, 2187 U.N.T.S. 99.

(Hereinafter, Rome Statute).

MEMORIAL ON BEHALF OF DEFENCE| 20

8(2)(b)(viii).

5. The purpose of the prohibition on transfer is "to prevent settlement in occupied territory of

citizens of the occupying State".11 The transfer by an Occupying Power of its own civilian

population into territory it occupies usually has substantial lasting consequences.12 It shifts the

demographic composition of the occupied territory to factually weaken the position of the

resident population of the occupied territory and solidify its territorial and political claim over

the territory.13 Such a change is only possible if there is a continuous presence of settlers.14

The prohibition ensures the temporary nature of the occupation, and prevents the occupying

power from changing the demographic composition of a territory in order to make the

occupation permanent.15 In the case of the Major War Criminals before the IMT Nuremberg in

1945 it was held that in certain territories purportedly annexed to Germany the defendants

methodically and pursuant to plan endeavoured to assimilate those territories politically,

culturally, socially and economically into the German Reich. The defendants endeavoured to

obliterate the former national character of these territories16. In the present case, an occupying

authority i.e. ZOAK was established. It naturally required a workforce to carry out its

administrative work. Therefore, the purpose of bringing workmen was work for this

administration. The demography of the occupied territory did change but it did not lead to

destruction of the national character of the original inhabitants of the area. The temporary

nature of the occupation was already ensured because the Accused had declared that the

forces would withdraw once the losses were recovered. The change in demography was

11 ADRIAAN BOS ET AL., REFLECTIONS ON THE INTERNATIONAL CRIMINAL COURT: ESSAYS IN HONOUR OF ADRIAAN BOS 47

(1999).
12 supra 5, at 405.
13 Id.
14 Supra 2.
15 ROBERT CRYER ET AL., AN INTRODUCTION TO INTERNATIONAL CRIMINAL LAW AND PROCEDURE 308 (2016).

16 Case of the Major War Criminals, IMT Nuremberg-Count 3(J), Indictment, ¶ 63-65 (Nov. 20, 1945).

MEMORIAL ON BEHALF OF DEFENCE| 21

reversed once the occupying forces withdrew since all the workmen were employed by ZOAK

which surrendered on 5 September 2012. There were no long lasting consequences. It can

be reasonably concluded that the legislative intent for criminalising transfers does not cover

this particular case. Therefore, the Defence pleads that the prohibition should not apply here

as its application would defeat this very intent and lead to miscarriage of justice.

[C.] The Accused lacks requisite mens rea under Art. 30.

6. According to Art. 30(1), the mental element presupposes ‘for a crime within the jurisdiction

of the Court’ that ‘the material elements are committed with intent and knowledge’. A person

who is not aware of a certain situation or a single material element cannot exhibit this mens

rea; nor does the person know of its existence or its coming into existence like, for instance,

the results of an act. Perception therefore is the basis for ‘the mental element required’. Where

it is lacking, ‘the mental element required’ does not exist and no criminal responsibility can be

established.17 It is submitted that the Accused could not have perceived the consequences of

his action. This can be demonstrated asunder.

C.1. The Accused takes the defence of mistake under Art. 32(2).

7. Lack of mens rea can be translated into assorted defences.18 The principal defences which

are relevant to war crimes are Mistake of fact and Mistake of law. The Accused was under

mistake of law. The defence of mistake of law is admitted, under certain circumstances, by

Art. 32(2) of the Rome Statute. A mistake of law may be a ground for excluding criminal

responsibility if it negates the mental element required by such a crime, or as provided for in

Art. 33.19

C.1.1. The mental element is negated by the mistake.

8. The norm ignorantia juris non excusat, widely accepted within national legal systems does

17 supra 5 at 1171.
18 ANTONIO CASSESE, PAOLA GAETA & JOHN R. W. D. JONES, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL

COURT: A COMMENTARY 951 (2009).

19 Rome Statute, Art. 32(2).

MEMORIAL ON BEHALF OF DEFENCE| 22

not apply automatically in war crimes trials20. In certain conditions there may be no choice but

to admit that, as a result of mistake of law, mens rea is negated. As put by the Judge Advocate

in the Peleus case of 1945, ‘no sailor and no soldier can carry with him a library of international

law, or have immediate access to a professor in that subject’.21 Art. 67(1)(i) prohibits any

reversal of the burden of proof or onus of rebuttal to the detriment of the Accused. If one

applies this rule not only to the elements of the offence, but also to defences, the Prosecution

is generally obliged to disprove the existence of a defence beyond reasonable doubts.

According to this approach, the Accused carries only an initial evidentiary burden with regard

to the facts supporting the alleged defence.22 Furthermore, there must be a presumption of

innocence of the Accused as per Art. 66.23 The Accused had signed the order to bring

workmen which was only for the purpose of administrative and excavation work. It’s only a

reasonable conclusion that this shaped his perception and therefore his mens rea is negated

by mistake of law. Any contrary fact cannot be established beyond reasonable doubt.

C.1.2. The combination of mistake and superior order under Art.33 relieves the Accused

of any liability.

9. It is submitted that Accused had been under control of Mr H Zambawa, his superior when

he issued the order. “The fact that a defendant acted in obedience to superior orders cannot

constitute a defence per se, but is a factual element which may be taken into account in

conjunction with other circumstances within the compass of an admissible defence based on

lack of mens rea, specifically, mistake.” This statement of the law has been subscribed to in

the Judgment of the majority of the Appeals Chamber of the ICTY in the Erdemovic case.24This

defence has been used successfully in the past.25 The Statute recognizes the defence of

20 YÔRĀM DINŠṬEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 245 (2016).

21 In re Eck and Others (The Peleus case), UK military Court at Hamburg, judgment, ¶ 248 (1946).

22 KAI AMBOS, TREATISE ON INTERNATIONAL CRIMINAL LAW I 312 (2013).

23 Rome Statute, Art. 66.
24 Prosecutor v. Erdemović, ICTY-IT-96-22-A, Appeal Judgment, ¶ 4 (Oct. 7, 1997).
25 Hinzman v. Canada, (2009) FC 415 (Canada Federal Court); Dover Castle case, 16 AJIL (1921) ¶704.

MEMORIAL ON BEHALF OF DEFENCE| 23

mistake of law under Article 32(2). When three cumulative conditions are met criminal

responsibility can be relieved.26

C.1.2.A ‘There was legal obligation to obey’.

10. The ‘legal obligation to obey orders of the government or the superior in question’ must

have existed at the time when the subordinated person decided to commit the crime. If they

wrongfully believe to be ‘under a legal obligation to obey orders’, which in fact they are not,

they may claim a mistake in terms of 3227.

C.1.2.B. ‘Accused did not know that the order was unlawful’.

11. Art. 33(1)(b) implies that orders to commit ‘a crime within the jurisdiction of the Court’ are

always unlawful. Orders to commit international crimes are always unlawful and subordinates

are not legally obliged to obey them28. To be relieved of criminal responsibility the subordinate

person must ‘not know that the order was unlawful’. The mental element may be lacking, if the

subordinate mistakenly believes that the order was lawful.29 This condition is fulfilled if it cannot

be proven that the subordinate had positive knowledge of the unlawfulness of the order. In

cases of doubt he or she has to be treated as if he or she was mistaken as Art. 33(2)(b) thus

contains an exception to the strict ignorantia iuris rule30. It accepts an error regardless of how

it was caused and whether or not it was avoidable, i.e., the superior order defence is available

even in cases in which the subordinate has neglected important evidence from which he could

have concluded that the order was unlawful. The regulation is therefore very favourable to

subordinated persons31.

C.1.2.C. ‘The order was not manifestly unlawful’

26 supra 20, at 251.

27 supra 22, at 381.
28 Id.
29 YÔRĀM DINŠṬEIN, THE DEFENCE OF 'OBEDIENCE TO SUPERIOR ORDERS' IN INTERNATIONAL LAW 76 (1965).
30 Jessica Liang, Defending the Emergence of the Superior Orders Defense in the Contemporary Context, GOET.

J. INT’L. L. 871, 872 (2010).

31 supra 5 at 1195.

MEMORIAL ON BEHALF OF DEFENCE| 24

12. The manifestly unlawful criterion establishes a high threshold. In a famous dictum, the

Israeli District Court held that “the distinguishing mark of a manifestly unlawful order should fly

like a black flag above the order given, as a warning saying ‘Prohibited’”32. In other words, the

unlawfulness of the order must be ‘obvious, self-evident (even to a lay person) and

incontestable’33. Even the ICRC has stated how for eg. mistake of law may be claimed in

defence of an accusation of committing a war crime.34

13. Since, the Accused believed that he had an obligation to obey orders, and since it cannot

be proved that the Accused knew that the order was unlawful and that order wasn’t manifestly

unlawful, the Accused is not liable due to mistake of law.

[D.] There is no Individual Responsibility under Art. 25.

D.1. H Zambawa was responsible for the transfer.

14. A person other than the person who planned, instigated or ordered is the one who

perpetrated the actus reus of the offence.35 Perpetration through another person presupposes

that the person who commits the crime can be used as an instrument or tool by the indirect

perpetrator as the mastermind or “man in the background” i.e. Hintermann36. The direct

perpetrator is normally an innocent agent, not responsible for the criminal act. A typical

example is the case where the individual agent or instrument acts erroneously. 37 This has

been affirmed for cases in which the Hintermann dominates the direct perpetrators by virtue

of a hierarchical organizational structure where he or she has ‘Organisationsherrschaft’.38

Further, the doctrine has been recognized by national tribunals. In Eichmann case, the

32 A-G of Israel v. Eichmann, (1961) 36 ILR 18 (District Court Judgement), ¶ 218.

33 W ILLIAM A. SCHABAS, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY ON THE ROME STATUTE 511 (2016).
34 INTERNATIONAL COMMITTEE RED CROSS, https://www.icrc.org/eng/resources/documents/article/other/57jq7h.htm,

(last visited Sep 8, 2018).

35 Prosecutor v. Blaškić, ICTY-IT-95-14-T, Judgment, ¶ 278 (Mar. 3, 2000) (Hereinafter “Blaškić Trial Chamber”).
36 supra 5 at 994.

37 AMBOS, DER ALLGEMEINE TEIL DES VÖLKERSTRAFRECHTS 573 (2004).

38 supra 38 at 590.

MEMORIAL ON BEHALF OF DEFENCE| 25

Jerusalem District Court invoked a type of organizational responsibility or domination of the

act by the man at the desk and thereby developed the concept used in the Justice trial where

it stated “..the degree of responsibility generally increases as we draw further away from the

man who uses the fatal instrument with his own hands and reach the higher levels of

command”.39 In the Argentinean trial an Appeals Court argued with a form of perpetration

based on Organisationsherrschaft: “The Accused dominated the acts since they controlled the

organization which carried them out ...who dominates the system dominates the anonymous

will of all the men who constitute it”40. In the case of Katanga and Ngudjolo Chui41 the

organizational element found its way into the deliberations of the PTC, calling those cases

“most relevant to international criminal law in which the perpetrator behind the perpetrator

commits the crime through another by means of ‘control over an organization”42. As set out by

the Chamber, liability for this mode of attribution depends on a hierarchical organization in

which the orders of the perpetrator are automatically complied with by interchangeable

executors.43 This principle must be applied in the present case as well because H Zambawa

started the war, He was the head of Zamharta. He had control over ZOAK and its officers. The

Accused merely signed his orders. He acted under Zambawa’s control like all other ZOAK

officials at that time. There is a hierarchical organizational structure. The true perpetrator is H

Zambawa because the executor, i.e. the Accused is indeed interchangeable as he was

appointed by H Zambawa and could have been replaced by any officer in the Zamhartan

Armed Forces. This implies that the crime would have been committed regardless of who

signed the orders, and the real perpetrator would never incur any liability.

39 A-G of Israel v. Eichmann, (1962) Cri. Appeal 336/1 (Appeal Judgment), ¶ 197.
40 supra 38 at 294.
41 HÉCTOR OLÁSOLO ET AL., CRIMINAL RESPONSIBILITY OF SENIOR POLITICAL AND MILITARY LEADERS AS PRINCIPALS TO

INTERNATIONAL CRIMES 394 (2010).

42 Prosecutor v. Katanga & Ngudjolo Chui, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, ¶ 498

(Sept. 30, 2008) (hereinafter “Katanga Confirmation of Charges”).

43 Katanga Confirmation of Charges, ¶ 512.

MEMORIAL ON BEHALF OF DEFENCE| 26

D.2. The Accused does not have Individual Responsibility under Art. 25(3)(b) or Art.

25(3)(c).

D.2.1. Art. 25(3)(b).

15. The Accused will incur responsibility if the Prosecution proves that he holds a position of

authority, which may be informal or of a purely temporary nature, and that he used that

authority to compel another to commit a crime.44 A person in a position of authority may incur

responsibility for ordering another person to commit an offence if the order has a direct and

substantial effect on the commission of the illegal act.45 In the Renzaho case, the Trial

Chamber made no findings concerning to whom or to what category of perpetrators he gave

the order. The Trial Chamber is required to provide clear, reasoned findings of fact as to each

element of the crime charged.46 Also in the Tarculovski case, the Appeals Chamber noted that

the Trial Chamber was unable to identify the direct perpetrators of the alleged murders or other

crimes by name.47

D.2.2. Art. 25(3)(c).

16. The accomplice must provide the kind of assistance which contributes directly and

substantially to the commission of the crime, for example by providing the means which enable

the perpetrator to commit the crime.48

D.2.3. Common thread of substantial effect is not present.

17. The requisite actus reus for such responsibility is constituted by an act of participation

which in fact contributes to, or has an effect on, the commission of the crime. Hence, this

44 Prosecutor v. Ndindiliyimana, et al., ICTR-00-56-T, Trial Judgement and Sentence, ¶ 1911 (May. 17, 2011).
45 Prosecutor v. Renzaho, ICTR-97-31-A, Appeal Judgment, ¶ 315 (Jul. 14, 2009) (hereinafter “Renzaho Appeal

Chamber).
46 Renzaho Appeal Chamber, ¶ 320.
47 Prosecutor v. Tarculovski, ICTY-IT-04-82-A, Appeal judgment, ¶ 75 (May. 19, 2010).
48 Report of the Commission to the General Assembly on the work of its forty eighth session, [1996] 2 Y.B. Int’l L.

Comm’n (XX), U.N. Doc. A/CN.4/SER.A/1996/Add. 1 (Part 2).

MEMORIAL ON BEHALF OF DEFENCE| 27

participation must have a direct and substantial effect on the commission of the illegal act.49

The Accused will be found criminally culpable for any conduct where it is determined that his

participation directly and substantially affected the commission of that offence through

supporting the actual commission before, during, or after the incident.50 While there is no

definition of “substantially”, it is clear from the aforementioned cases that the substantial

contribution requirement calls for a contribution that in fact has an effect on the commission of

the crime.51 In the present case, The order issued by the Accused provided for bringing

workmen from Zamharta, however, it did not specify the persons who ought to complete the

job. This amounts to an order, that cannot fulfil the threshold for meeting the standard set by

the Art. 25(3)(b) of the ICC statute. Furthermore, as already proved above, there was no govt.

involvement in the commission of the crime, this showcases the fact that there was no direct

and substantial effect of the order on the commission of the crime to meet the criteria of both

Art. 25(3)(b) and 25(3)(c). The fact that the order may have played a critical role in motivating

the people to commit the offence is immaterial. Thus, the order did not play a substantial and

direct role in the commission of the offence.

18. In final conclusion, no crime of transfer was committed. Furthermore, the Accused cannot

be held responsible for the acts of his superior due to his mistake of law understood in

consonance with him being used as a pawn by his superior.

II.THE ACCUSED IS NOT GUILTY OF COMMITTING CRIMES AGAINST HUMANITY.

19. It is submitted that the acts committed on 27 and 29 July, 2018 do not satisfy the chapeau

of Art. 7(1), as they were not committed in furtherance of a state policy [A.], neither were they

49 Prosecutor v. Kayeshima, ICTR 95-1-A, Appeal Judgment, ¶ 187 (May.21, 1999) (hereinafter “Kayeshima Appeal Chamber”);

Prosecutor v. Tadic, ICTY-IT-94-1-Tbis-R117, Trial Sentencing Judgment, ¶¶ 674, 689 (Nov. 16, 1998) (hereinafter “Tadic Trial

Chamber”); Prosecutor v. Delalic, ICTY-IT-96-21-T, Trial Judgment, ¶ 326 (Nov. 16, 1998) (hereinafter “Delalic Trial Chamber”);

Prosecutor v. Akayesu, ICTR-96-4-T, Trial Judgment, ¶ 477 (Sept. 2, 1998) (hereinafter “Akayesu Trial Chamber”).
50 Tadic Trial Chamber, ¶ 692.
51 Tadic Trial Chamber, ¶ 688.

MEMORIAL ON BEHALF OF DEFENCE| 28

widespread or systematic [B.] nor done with the intention or knowledge of the Accused [C.],

Brigadier G Kumanova. There is no causal link attributing the responsibility of the attack to the

Accused. The specific elements of ‘Persecution’ under Art. 7(1)(a) cannot be established [D.].

Alternatively, the Accused is neither responsible individually, nor as a commander [E.]. Thus,

the Prosecution has failed to prove all the charges against the Accused beyond reasonable

doubt and he cannot be held liable for the crimes.

[A.] The alleged crime was not in furtherance of an organisational policy.

20. Crimes Against Humanity under Art. 7(1) must occur in furtherance of an organizational

policy of committing such attacks.52 Such policies could be identified through active

encouragement by the organization to undertake such attacks.53 A policy of ideological

supremacy must be carried out in practice54. They must follow a regular pattern.55 All the acts

committed by ZOAK authorities are carried out through issuing of orders in serial numbers as

evinced by the facts of the case. No such order can be produced to claim that the acts were

indeed carried out in furtherance of any organisational policy following a regular pattern.

[B.] The attacks were not widespread or systematic

21. An attack under Art. 7(1) must, disjunctively, either be systematic or widespread. However,

the alleged attacks on 27 and 29 July cannot be considered systematic or widespread.

B.1. Not systematic in nature.

22. A systematic attack follows an organized pattern of crimes and non-accidental repetition

52 Rome Statute, Art. 7(2)(a).

53 Elements of Crime, art. 7 Introduction; Republic of Côte d'Ivoire Investigation Authorisation, ICC- 02/11, Decision

Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation, Situation in the Republic of

Côte d'Ivoire, ¶ 42 (Oct. 3, 2011) (hereinafter “Côte d'Ivoire Investigation Authorisation”).

54 Federation Nationale des Deportes et Internes Resistants et Patriotes and Others v. Barbie, 78 I.L.R. 137 (1985).
55 Côte d'Ivoire Investigation Authorisation, ¶ 43; Katanga Confirmation of Charges, ¶ 396; Prosecutor v. Bemba,

ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute, Situation in the Central

African Republic, ¶ 481 (Jun. 15, 2009). (hereinafter “Bemba Confirmation of Charges”).

MEMORIAL ON BEHALF OF DEFENCE| 29

of repetitive criminal conduct.56 Accordingly, an attack is deemed ‘systematic’ when it is

committed following a regular pattern and a common policy.57 It is thoroughly organised and

involves substantial public resources.58 The report of arson and riots relied upon by the

prosecution has no evidentiary value and is not admissible. Reliability of evidence is

contingent on the disclosure and examination of its source.59 Hearsay evidence is less

reliable60 and has little probative value61 as it is impossible for the Defence to ascertain the

truthfulness and authenticity of the information therein contained. The Court has previously

declined to confirm charges based on uncorroborated indirect evidence62 such as NGO

Reports.63 The attack against the villagers of Haw Niwansik religion was a singular incident; a

regular pattern of such attacks did not exist. Similarly, there is no pattern of attacks against

Khaw tribe or a pattern of murder. Thus, the alleged attack cannot be deemed systematic.

B.2. Not widespread in nature.

56 Kenya Investigation Authorization, ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the

Authorization of an Investigation, Situation in the Republic of Kenya, ¶ 96 (Mar. 31, 2010) (hereinafter “Kenya

Investigation Auhorization”); Katanga Confirmation of Charges, ¶ 397; Prosecutor v. Kordic, ICTY-IT-95-14/2-A,

Appeal Judgment, ¶ 94 (Dec. 17, 2004); Prosecutor v. Blagojević, ICTY-IT-02-60-T, Trial Judgment, ¶ 545 (Jan.

17, 2005).
57 Akayesu Trial Chamber, ¶ 580.
58 Id.
59Prosecutor v. Katanga, ICC-01/04-01/07, Decision on the Prosecutor’s Bar Table Motions, Situation in the

Democratic Republic of Congo, ¶ 29 (Dec. 17, 2010).

60Prosecutor v. Naletilić, ICTY-IT-98-34-T, Trial Judgment, ¶ 11 (Mar. 31, 2003); Prosecutor v. Lubanga Dyilo, ICC-

01/04-01/06, Decision on Motion by the Defense to Exclude Anonymous Hearsay Testimony of the Prosecutor

Witness, Situation in the Democratic Republic of Congo, ¶ 25 (Nov. 9, 2006).

61 ICC Resolution No. ICCASP/12/Res.7 (Nov. 27, 2013).
62Prosecutor v. Abu Garda, ICC-02/05-02/09, Decision on Confirmation of Charges, Situation in Darfur Sudan, ¶

17 (Feb. 8, 2010).
63Bemba Confirmation of Charges, ¶ 47; Prosecutor v. Mbarushimana, ICC-01/04-01/10-465-Red, Decision on the

Confirmation of Charges, Situation in the Democratic Republic of the Congo, ¶¶ 113, 239 (Dec. 16, 2011)

(hereinafter “Mbarushimana Confirmation of Charges”).

MEMORIAL ON BEHALF OF DEFENCE| 30

23. A widespread attack must be large scale, frequent, carried out with collective conscience

and directed against multiple victims.64 Multiplicity must be reflected in both repetition of

attacks and number of victims.65 It must not be isolated in nature.66 The arson attack against

the Haw Niwansik villagers on 27 July, 2012 was an isolated incident. There is no evidence of

large-scale and frequent attacks on Haw Niwansik villagers. Similarly, the arson against the

religious schools of Khaw Tribe is again an isolated incident which had never happened

before. The murder of the two guards is the first such incident of murder committed by ZOAK

authorities as per the facts. These singular acts of violence cannot be termed as ‘widespread’.

In any case the systematic or large scale commission of crimes does not refer to the individual,

but to the authority behind the crimes.67 Therefore, without an organisational policy, as also

demonstrated in the present case, its immaterial if the attacks are widespread or systematic.

[C.] The requirement of mens rea is not fulfilled.

24. The prosecution must prove beyond reasonable doubt68 that the perpetrator knew of or

intended to commit the crime.69 The standard of dolus directus in the first (intent) or the second

degree (knowledge) under Art. 30 must be met to establish mens rea70. The mens rea

requirement for persecution is higher than for ordinary crimes against humanity71.

64 Kenya Investigation Authorisation, ¶ 95; Bemba Confirmation of Charges, ¶ 83; Katanga Confirmation of

Charges, ¶ 395; Akayesu Trial Chamber, ¶ 580; Prosecutor v. Musema, ICTR-96-13-A, Appeal Judgment, ¶ 204

(Jan. 27, 2000).

65 Prosecutor v. Kunarac et al., ICTY-IT-96-23& IT-96-23/1-A, Appeal Judgment, ¶ 96 (Jun. 12, 2002).

66 Prosecutor v. Bemba, ICC-01/05-01/08, Decision Pursuant to Article 74 of the Statute, Situation in the Central

African Republic, ¶ 165 (Mar. 21, 2016) (hereinafter “Bemba Trial Chamber”).
67 Tadic Trial Chamber, ¶ 649.

68 Bemba Trial Chamber, ¶ 90.

69 Elements of Crime, art. 7(1)(a), ¶ 3.

70 Bemba Trial Chamber, ¶ 89.

71 Prosecutor v. Kupreškić, ICTY-IT-95-16-T, Trial Judgment, ¶ 636 (Jan. 14, 2000).

MEMORIAL ON BEHALF OF DEFENCE| 31

Discrimination: For persecution, acts need to be committed with a discriminatory intent.72

Persecution requires proof that an act or omission discriminates in fact and proof that the act

or omission was committed with specific intent to discriminate73. What counts is the

discriminatory intent of the indirect perpetrator.74 An act, or omission, is discriminatory if the

victim is targeted due to his membership in one of the protected groups.75

Knowledge: This requirement constitutes an additional mental element to be distinguished

from the general mens rea requirement of Art. 3076. This knowledge requirement provides the

necessary connection between the actual perpetrator’s individual acts and the overall attack

by means of the actual perpetrator’s mindset77. It suffices that he is aware of the existence of

the attack in general.78

25. In the present case, the Accused showed no intent to commit such an act and also it

cannot be proved that he discriminated in fact. No fact exists which can prove the actual

perpetrator’s knowledge as well as the knowledge of the Accused of such an attack. In the

absence of sufficient evidence, the court shall not draw a conclusion that is least favourable

to the Accused.79 The prosecution cannot prove his guilt beyond reasonable doubt.

[D.] The attacks were not directed against an identifiable group or collectivity.

26. The first and second non-contextual elements of the Elements of Crimes80 clarify that this

72, G.A. Res. 95(I), Affirmation of the Principles of International Law recognised by the Charter of the Nuremberg

Tribunal Dec. 11 1946.

73 Prosecutor v. Dordevic, ICTY-IT-05-87/1-A, Appeal Judgment, ¶ 840 (Jan. 27, 2014).
74 Prosecutor v. Stakic, ICC IT-97-24-T, Trial Judgment, ¶ 746 (Jul. 31, 2003).
75 Prosecutor v. Karadžić, ICTY-IT-95-5/18-T, Trial Judgment, ¶ 498 (Mar. 24, 2016).

76 AMBOS, TREATISE ON ICL II 77 (2014).

77 supra 5 at 176.
78 Katanga Confirmation of Charges, ¶ 401.

79 Tadic Trial Chamber, ¶ 240.

80 “Elements of Crime, Official Journal of the International Criminal Court, ICC-ASP/1/3, (Sept. 9, 2002).

MEMORIAL ON BEHALF OF DEFENCE| 32

crime includes targeting individuals because of their membership in a group or collectivity. 81

The group or collectivity and their individual members must be merely ‘identifiable’, based

either on objective criteria or on the subjective notions of the Accused82. Haw Niwansik and

Khaw Tribe are two distinct ethnic/religious/cultural groups. The attacks have to be bifurcated

into two parts: The attack on 27 July against Haw Niwansik religious group and the attack on

29 July against religious schools of Khaw Tribe and murder of two security guards. They can’t

be termed as a single religious group under Art. 7(1)(h). Furthermore, ideological coherence

must be present to count them as a political group.83 There appears to be no agreed definition

of the term culture in international law.84 The groups could not have been identifiable as per

any objective criteria or subjective notions of the Accused because he was not even present

on the sites of the attacks, he never ordered the attacks nor did he have any knowledge of the

attacks. The objective criteria or subjective notion of the Accused to identify the guards as part

of a particular group is missing.

D.1. Intentional and severe deprivation of Fundamental rights by reason of identity of

the group cannot be shown.

27. The word ‘severe’ does not refer to the character of the act of persecution as such, it refers

to the character of the deprivation of fundamental rights which could be explained as a

requirement of the severity of the discrimination.85

D.1.1. Attacks happened due to Military necessity

28. Common to both incidents is the fact that in both the incidents civilian objects were

attacked. The principle of distinction demands a clear definition of persons and objects that

81 supra 5 at 220.
82 supra 5 at 221.
83 Mbarushimana Confirmation of Charges, ¶17/65.
84 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 172.
85 supra 5 at 276.

MEMORIAL ON BEHALF OF DEFENCE| 33

may be targeted.86 The exception to the prohibition set by Art. 53 of GC IV stipulates that:

“..where such destruction is rendered absolutely necessary by military operations.” Art. 52(2)

of the A.P.1 states87 “the object to be attacked must by its nature, location, purpose or use

contribute effectively to the military action of the enemy. Its partial or total destruction, capture

or neutralization, must offer in the circumstances ruling at the time a definite military

advantage.” The foreseeable military advantage from an attack includes increasing the

security of the attacking force.88 Even objects of religious nature can be attacked as per

international practice.89 Following the principle of military necessity, the burning of huts of

villagers of Haw Niwansik religion was not because of their identity, it was because members

of this group had attacked the army. Burning the huts of other villagers of different religions

would’ve amounted to collective punishment which is prohibited in IHL.90 Therefore only the

hostile objectives were attacked. The Khaw Tribe was involved in sedition and inciting violence

and uprising, hence they became military objectives and were attacked. The guards at the

Religious school of Khaw Tribe were not murdered for being part of a religious/ethnic or any

other group because their religious/ethnic or political identity is not known.

D.2. The conduct was not related to any act under Art. 7 or any crime within the

jurisdiction of the court.

29. According to the 4th element of this crime, the conduct must be committed in connection

with any act referred to in Art 7(1), of the Statute or any crime within the jurisdiction of the

86Methods and means of warfare, INTERNATIONAL COMMITTEE OF THE RED CROSS, https://www.icrc.org/eng/war-and-

law/conduct-hostilities/methods-means-warfare/overview-methods-and-means-of-warfare.htm (last visited Sep 7,

2018).
87 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I), Art. 52 (2), 1125 U.N.T.S 3 (Jun. 8, 1977)
88 Ecuador, Naval Manual (1989), § 8.1.1.; US, Naval Handbook (1995), § 8.1.1.
89 Netherlands, Aide-Memoire for IFOR Commanders (1995), § 12.
90 Geneva Convention Related to the protection of civilian persons in times of war, Art. 33 ¶ 3, Aug. 12 1949, 75

U.N.T.S. 287; Additional Protocol 1, Art. 20, 51(6).

MEMORIAL ON BEHALF OF DEFENCE| 34

Court. It is submitted that “arson”, which is common in both the incidents of 27 and 29 July is

neither an act under Art. 7(1) nor crime in the jurisdiction of the court.

30. Act: As specified in the Statute and the Elements of Crimes, the attack which as a “course

of conduct” must involve the “multiple commission of acts” referred to in Art. 7(1).91 The Bemba

trial chamber held that: “The terms of the Statute and the Elements of Crimes are clear in

providing that the multiple commission of acts can only include acts referred to in Article 7(1).

Accordingly, only those acts enumerated in Article 7(1)(a) to (k) may be relied upon to

demonstrate the “multiple commission of acts” for the purposes of Article 7.”92 Arson is not an

act under Art. 7(1)(a) to (k).

40. Crime: The principle of Nullum crimen sine lege in Art. 2293 bars the definition of any other

crime to be construed to include arson in it. No extension of existing crimes by analogies must

be done. The instance of murder remains which can be negated due to it not being

widespread, systematic, lacking organisational policy and a discriminatory intent by the

Accused. Thus, arson is not an act under Art. 7(1) or a crime under ICC’s jurisdiction.

[E.] The Accused is not responsible as an individual or as a commander.

41. The Accused must not be attributed any individual criminal responsibility under Art. 25 or

responsibility as a commander under Art. 28 of the Statute.

E.1. No individual responsibility

E.1.1. The Accused is not an indirect perpetrator or a co-perpetrator under Art. 25(3)(a):

42. Liability for indirect perpetration is determined by the control over the crime.94 It

necessitates proof of intent and knowledge of the Accused.95 Participation without co-

91 Bemba Trial Chamber, ¶ 150.

92 Bemba Trial Chamber, ¶ 151.

93 Rome Staute, Art. 22.

94 Prosecutor v. Katanga, ICC-01/04-01/07, Judgment Pursuant to Article 74 of the Statute, Situation in the

Democratic Republic of Congo, ¶ 1396 (Mar. 7, 2014).

95 Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the Confirmation of Charges, Situation in the Democratic

MEMORIAL ON BEHALF OF DEFENCE| 35

ordination between the Accused and the actual perpetrator does not amount to indirect

perpetration.96 Co-perpetration and indirect perpetration require a common plan of action and

an essential contribution by the Accused.97 An essential contribution refers to a task, the non-

performance of which would frustrate the commission of the crime.98 The Accused neither

manifested any intention to burn the huts of villagers of Haw Niwansik on 27 July, nor shared

a common plan of attack with the ZOAK authorities that carried the attack. Similarly, he never

manifested any intention to burn the religious school of Khaw Tribe or murder the two guards

on 29 July. He did not even have knowledge of these attacks as he had fled the ZOAK territory

into the inner parts of Zamharta. His actions did not constitute any contribution to the

commission of the crime.

E.1.2. The Accused did not order or solicit the commission of the crime under Art.

25(3)(b).

43.Responsibility for ordering or soliciting is ascertained through the Accused’s substantial

influence over the crime.99 As per the facts of the case, there is no evidence available to prove

that the Accused issued an order to attack the religious groups of Haw Niwansik or Khaw

tribe.

E.1.3. The Accused did not aid or abet the commission of the crime under Art. 25(3)(c).

44. The aiding or abetting must have a substantial and direct effect on the commission of the

Republic of Congo, ¶ 350 (Jan. 29, 2007) (hereinafter “Lubanga Confirmation of Charges”).

96 Lubanga Confirmation of Charges, ¶343.

97 Blaskic Trial Chamber, ¶ 185.

98Prosecutor v. Lubanga, ICC-01/04-01/06-2842, Judgment pursuant to Art. 74 of the Rome Statute, Situation in

Democratic Republic of Congo, ¶ 923 (Mar. 14, 2012).

99 Prosecutor v. Ntaganda, ICC-01/04-02/06-309, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute,

Situation in the Democratic Republic of Congo, ¶ 153 (Jun. 9, 2014) (hereinafter “Ntaganda Confirmation of

Charges”); Prosecutor v. Strugar, ICTY-IT-01-42-T, Trial Judgment, ¶ 347 (Jan. 31, 2005) (hereinafter “Strugar

Trial Chamber”); Mbarushimana Confirmation of Charges, ¶ 285.

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crime.100 The Accused must requisite intent, knowledge and a purpose.101 The Accused did

not commit or contribute (aid or abet) the commission of the acts on 27 and 29 July. There is

no question about making a contribution to facilitate commission of the acts if he did not even

have any knowledge of their commission.

E.2. No command responsibility

E.2.1. The Accused did not have effective command and control over his subordinates

in ZOAK

45. Effective command and control over the forces must have temporal coincidence with the

crime i.e. the commander must have effective control at least at the time of commission of the

crimes.102 It is not sufficiently evinced by an authority’s power to issue orders.103 Ability to

prevent the crime in question or punish for the same is essential to establish effective

command and control.104 Failure to do so will discharge liability.105 Prior to the attacks of 27

and 29 July, The Accused had fled the ZOAK territory into inner lands of Zamharta shortly

after the capital of Zamharta got capitulated by Super Seven forces on 5 July 2018 which was

confirmed when he was found hiding in a village in Central Zamharta on 10 March 2013. Also

a majority of ZOAK territory was liberated by Super Seven military forces long before the

events of 27 and 29 July. By this time Super Seven had control over road networks in

Zamharta and occupied areas of Zamharta. An offensive operation was launched to defeat

ZOAK on 25 July too. This is an indicator of the chaotic situation in the occupied territory of

Khawransik. It is therefore submitted that the Accused had no effective command and control

over the ZOAK forces because he wasn’t even present in ZOAK territory. He was a deserter

100 Ntaganda Confirmation of Charges, ¶¶ 145, 153.

101 supra 5 at 1009.

102 supra 5 at 1094.
103 Prosecutor v. Orić, ICTY-IT-03-68-A, Judgment, ¶ 91 (Jul. 3, 2008) (hereinafter “Oric Trial Chamber”);

Prosecutor v. Halilović, ICTY-IT-01-48-A, Appeal Judgment, ¶ 207 (Oct. 16, 2007).

104 Strugar Trial Chamber, ¶ 404.

105 Strugar Trial Chamber, ¶ 404.

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by the time the events of 27 and 29 July unfolded. The attack was carried out by the few

remaining disbanded ZOAK groups that had managed to continue operating in the area before

surrendering five days later on 5 August 2012. The Accused had lost any ability at the time of

commission of the attacks to either prevent or punish. In the absence of any evidence to draw

any other conclusion beyond reasonable doubt, the Accused cannot be said to have had

effective command and control.

E.2.2. The Accused did not know or have any reason to know about the crime and had

no duty to take necessary and reasonable measures within his power

46. Knowledge cannot be presumed.106 It must be established.107 It must be established

through direct or indirect evidence.108 If inferred, it must be the only reasonable conclusion.109

Hence the commander is liable only if information is available to him,110 not for his failure to

obtain information.111 The duty of “should have known” is conditioned by “circumstances at

that time”.112 Therefore a military commander is only responsible if he had reason to know 113

the crimes could be or were being committed. This duty is attracted if his subordinate can be

reasonably suspected of commission of the crime.114 Responsibility is precluded if the superior

106 Bemba Confirmation of Charges, ¶ 430; Delalić Trial Chamber ¶ 64.

107 Bemba Confirmation of Charges, ¶ 434.

108 Bemba Confirmation of Charges, ¶ 430; Prosecutor v. Kordic, ICTY-IT-95-14/2-T, Trial Judgment, ¶ 427 (Feb.

26, 2001) (hereinafter “Kordic Trial Chamber”); Prosecutor v. Hadžihasanović and Kubura, ICTY-IT-01-47-T, Trial

Judgment, ¶ 94 (Mar. 15, 2006); Prosecutor v. Galić, ICTY-IT-98-29- A, Appeal Judgment, ¶¶ 171, 180-182 (Nov.

30, 2006).
109 Prosecutor v. Vasiljević, ICTY-IT-98-32-A, Appeal Judgment, ¶ 120 (Feb. 25, 2004); Prosecutor v. Krnojelac,

ICTY-IT-97-25-A, Appeal Judgment, ¶¶ 177,179 (Sept. 17, 2003); Kordić Trial Chamber, ¶ 427; Blaškić Trial

Chamber, ¶ 307.
110 Prosecutor v. Delalić, ICTY-IT-96-21-A, Appeal Judgment, ¶ 241 (Feb. 20, 2001).
111 supra 5 at 1091.

112 Rome Statute, Art. 28(a)(i).

113 Kayeshema Appeal Chamber, ¶ 209; Bemba Confirmation of Charges, ¶ 434.

114 Orić Trial Chamber, ¶ 336.

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lacked material ability to prevent and punish the commission of the crime.115 Circumstantial

evidence of “actual knowledge” includes knowledge of the officers and staff involved; and the

location of the commander at the time.116 There exists no direct or indirect evidence suggesting

that the Accused knew or had access to information concerning the acts of the perpetrators.

The Accused had deserted his post because he fled ZOAK territory and was hiding in a village

far away from the area where the acts took place. Thus, it cannot be proven beyond

reasonable doubt that he had any information regarding those acts before or during they were

committed. He had no reason to suspect that such an act would be committed because he

had no knowledge. Thus, there exists no duty to take reasonable and necessary measures

within his power.

47. In final conclusion, the burning of houses of Haw Niwansik religious group and religious

schools of Khaw Tribe was necessitated by military necessity. Coupled with arson not being

an act under Art. 7(1) and a crime under ICC’s jurisdiction and the fact that discrimination as

the main link is missing in all of these cases, the acts cannot be termed as persecution.

Furthermore, the Accused cannot be held responsible for the alleged attacks.

115 Delalić Trial Chamber, ¶ 378; Prosecutor v. Aleksovski, ICTY-IT-95-14/1-T, Trial Judgment, ¶ 81 (Jun. 25, 1999).
116 Delalic Trial Chamber, ¶ 386; S.C. Res. 780, ¶ 58 (1992).

MEMORIAL ON BEHALF OF DEFENCE| 39

 PRAYER FOR RELIEF

In light of the facts stated, indictments issued, authorities cited and the arguments presented,

it is humbly prayed before this Honourable Court that it may be pleased to adjudge, hold and

declare the following:

1. That Brigadier G. Kumanova is not liable for committing a war crime under

Article 8(2)(b)(viii) for transferring directly or indirectly Zamharta’s civilian

population into the occupied territories of Khawransik.

2. That Brigadier G. Kumanova is not liable for committing a crime against

humanity under article 7(1)(h) for persecution against Khaw tribe and Haw-

Niwansik religious groups for the arson and murder committed on 27 July and

29 July 2012.

Date: S/d

Place: International Criminal Court 1._______________

The Hague, The Netherlands 2._______________

(Counsels for Defence)

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