21st HENRY DUNANT MEMORIAL MOOT COURT COMPETITION, 2022

21ST HENRY DUNANT MOOT COURT COMPETITION, 2022

IN THE ENGLISH LANGUAGE
TEAM NUMBER:
COUNSEL FOR THE DEFENCE

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IN THE INTERNATIONAL CRIMINAL COURT

AT THE HAGUE

DATE: 22 SEPTEMBER 2022

THE PRE-TRIAL CHAMBER

THE PROSECUTION SUBMISSION IN THE TRIAL OF

PRESIDENT GARBA UNDER ARTICLE 8 OF THE ROME STATUTE.

THE PROSECUTOR..............................................................................................(PROSECUTION)

V.

AZIZI GARBA..............................................................................................................(DEFENCE)

MEMORIAL ON BEHALF OF THE DEFENCE

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TABLE OF CONTENTS

TABLE OF CONTENTS ____________________________________________________ 3

LIST OF ABBREVIATIONS _________________________________________________ 6

INDEX OF AUTHORITIES ___________________________________________________ 8

STATEMENT OF JURISDICTION ____________________________________________ 13

STATEMENT OF ISSUES __________________________________________________ 14

STATEMENT OF FACTS __________________________________________________ 15

SUMMARY OF PLEADINGS _______________________________________________ 17

PLEADINGS ____________________________________________________________ 18

1. WHETHER PRESIDENT GARBA IS CRIMINALLY RESPONSIBLE BY VIRTUE OF ART 25 OF THE

ROME STATUTE FOR ORDERING, SOLICITING OR INDUCING THE WAR CRIME UNDER ART

8(2)(B)(IV) OF THE STATUTE PERTAINING TO THE DAMAGE CAUSED TO BAOBAB SAPLINGS? 18

1.1. President Azizi Garba did not launch an attack against Momaayo. ______________ 18

1.2. The damage caused to the Baobab trees does not show the requisite Actus Reus to

qualify as a war crime under Article 8(2)(b)(iv). __________________________________ 19

1.2.1. The damage caused to the Baobab saplings is not widespread. _______________ 19

1.2.2. The damage caused to the Baobab saplings is not long-term. ________________ 20

1.2.3. The damage caused to the Baobab saplings was not severe. _________________ 20

1.3. The act was in conformity with the principle of proportionality.__________________ 21

1.4. President Garba did not have knowledge of the possible damages. _____________ 22

1.5. President Garba is not criminally responsible by virtue of Art. 25 (3)(b) for ordering,

soliciting or inducing the war crime. ___________________________________________ 22

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2. WHETHER PRESIDENT GARBA IS CRIMINALLY RESPONSIBLE BY VIRTUE OF ART 25 OF THE

ROME STATUTE FOR ORDERING, SOLICITING OR INDUCING THE WAR CRIME UNDER ART.

8(2)(B)(IV) OF THE STATUTE PERTAINING TO THE DAMAGE CAUSED BY THE INTRODUCTION OF

CRUDE OIL INTO THE NADAWADA RIVER UNDER ART. 8(2)(B)(IV)?___________________ 23

2.1. President Azizi Garba did not launch an attack against Momaayo. ______________ 23

2.2. The damage caused to the Nadawada River does not show the requisite Actus Reus

to qualify as a war crime under Article 8(2)(b)(iv). ________________________________ 24

2.2.1. The damage caused by the introduction of crude oil into the Nadawada River is not

widespread. _____________________________________________________________ 25

2.2.2. The damage caused by the introduction of crude oil into the Nadawada River is not

long-term. _______________________________________________________________ 25

2.2.3. The damage caused by the introduction of crude oil into the Nadawada River is not

severe. _________________________________________________________________ 26

2.3. The act was in conformance with the principles of proportionality. _______________ 26

2.4. President Azizi Garba did not have knowledge of the possible damages. _________ 27

2.5. President Garba is not criminally responsible by virtue of Art. 25 (3)(b) for ordering,

soliciting or inducing the war crime. ___________________________________________ 27

3. WHETHER PRESIDENT GARBA IS CRIMINALLY RESPONSIBLE AS A SUPERIOR BY VIRTUE OF

ARTICLE 28 OF THE ROME STATUTE FOR THE WAR CRIME PERTAINING KILLING OF 5 UN

PERSONNEL UNDER ART. 8 (2)(B)(III)? ________________________________________ 28

3.1. The elements of war crime under art. 8(2)(b)(iii) are not satisfied. _______________ 28

3.1.1. The object of the attack was not UN Personnel. ___________________________ 28

3.1.2. Lt. Diallo did not intend for UN personnel to be the object of the attack. _________ 29

3.1.3. UN Personnel were not entitled to that protection given to civilians _____________ 29

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3.2. President Garba is not criminally responsible as superior under Art. 28 of the Rome

statute. _________________________________________________________________ 30

3.2.1. President Garba had no effective control. ________________________________ 30

3.2.2. President Garba had no knowledge. ____________________________________ 31

3.2.3. President Garba took all necessary steps to prevent the crime. _______________ 31

4. WHETHER PRESIDENT AZIZI GARBA IS CRIMINALLY RESPONSIBLE UNDER ART. 28 FOR THE

WAR CRIME OF ATTACKING CIVILIANS UNDER ARTICLE 8(2)(B)(I)? ___________________ 32

4.1. President Garba had no knowledge and intention of attacking the civilian population of

Momaayo. ______________________________________________________________ 32

4.1.1. President Garba had no intention of attacking the civilian population. ___________ 32

4.1.2. President Garba had no actual knowledge of the attack. _____________________ 33

4.2. The civilians directly took part in the hostilities. _____________________________ 34

4.2.1. There was a sufficient threshold of harm caused. __________________________ 34

4.2.2. No Direct Causation between the act and the harm likely to cause from that act. __ 35

4.2.3. There was sufficient belligerent nexus to cause the required threshold of harm.___ 35

4.3. President Garba should not be criminally responsible as a superior under Article 28 of

the Rome Statute. ________________________________________________________ 35

4.3.1. President Garba had no effective control. ________________________________ 36

4.3.2. President Garba took all necessary and reasonable measures to prevent the conflict.

37

PRAYER _______________________________________________________________ 38

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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSION

& AND

¶ PARAGRAPH

AP ADDITIONAL PROTOCOL

Art. ARTICLE

CIHL CUSTOMARY INTERNATIONAL HUMANITARIAN LAW

Doc. DOCUMENT

Ed. EDITION

GC GENEVA CONVENTION

Govt. GOVERNMENT

IAC INTERNATIONAL ARMED CONFLICT

ICC INTERNATIONAL CRIMINAL COURT

ICRC INTERNATIONAL COMMITTEE OF RED CROSS

ICTR INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

ICTY INTERNATIONAL CRIMINAL TRIBUNAL OF YUGOSLAVIA

IHL INTERNATIONAL HUMANITARIAN LAW

ILC INTERNATIONAL LAW COMMISSION

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Pg. PAGE

Statute ROME STATUTE

UN UNITED NATIONS

UNSC UNITED NATIONS SECURITY COUNCIL

Vol. VOLUME

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INDEX OF AUTHORITIES

CASES CITED

1. Prosecutor v. Dario Kordić, ICTY, IT-95-14/2, Appeals Chamber, Dec. 17, 2004

2. Prosecutor v. Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges,

ICC-01/04-01/07-717, 30 September 2008

3. Nicaragua v. United States, 1986 I.C.J. 14

4. Prosecutor v. Issa Hassan Sesay, Morris Kallon, and Augustine Gbao (the RUF accused)

(trial judgement)

5. Prosecutor v. Jean – Pierre Bemba Gombo, ICC- 01/05-01/08

6. Prosecutor v. Halilovic, IT-01-48-A, Trial Judgment 16 November 2005

7. Prosecutor v. Kordic´ and Cˇerkez, IT-95-14/2-T, Judgement, Trial Chamber, 26 Feb. 2001

8. Prosecutor v. Aleksovski, IT-94-14/1-T, Judgement

BOOKS AND ARTICLES

1. David Luban, A theory of Crimes against Humanity, Volume 29 issue, Yale Journal of

International Law, 2004.

2. Anthony Cullen, The concept of Non-International Armed Conflict in International

Humanitarian Law, Volume 25, Cambridge studies in International and Comparative Law

2013.

3. Michael Barton Akehurst, Jurisdiction in International Law, 46 British Year Book of

International Law.

4. Antonio Cassese, Excerpts from A. Cassese, International Criminal Law, Volume 3rd

Edition, 2013.

5. Kai Ambos, Treatise on International Criminal Law, Volume II, 2014.

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6. Kai Ambos and Steffen Wirth, The Current Law of Crimes against Humanity, An analysis

of UNTAET Regulation 15/2000, 2002.

7. Mahmoud Cherif Bassiouni, Crimes against Humanity: The Case for a Specialized

Convention, Volume.9, 2010.

8. Dr. Neil Boister, An Introduction to Transnational Criminal Law, Volume 14, European

Journal of International Law, 2003.

9. Boot Machteld, Genocide, Crimes against Humanity, War Crime: Nullum Sine Legeand the

Subject Matter Jurisdiction of the International Criminal Court, Volume 12. 2002.

10. Ian Brownlie, Principles of Public International Law, 8th edition, 2012

11. Cassese Antonio, The Rome Statute of the International Criminal Court, Volume I, 2002.

12. Phylilis Hwang, Defining Crimes Against Humanity in the Rome Statute of the International

Criminal Court, Fordham International Law Journal, Volume 22, Issue2, 1998.

13. DeGuzman, Margaret, Crimes against Humanity, Routledge Handbook of International

Criminal Law, 121, 126 (William Schabas and Nadia Bernaz eds., 2011).

14. Dormann, Knut, War Crimes under the Rome Statute of the International Criminal Court,

with Special Focus on the Negotiations on the Elements of Crimes 7 Max Plank Yearbook

of United Nations Law, 341, 2003

15. Giulia Bigi., Joint Criminal Enterprise in jurisprudence of The International CriminalTribunal

for the former Yugoslavia and prosecution of senior political and military leaders.,

International Human Rights, International Humanitarian Law, and Environmental Security:

Can the International Criminal Court Bridge the Gaps, 6, ILSA Journal of International and

Comparative Law, 305, 2000.

16. Michael Duttweiler, Liability for Omission in International Criminal Law 58(1),

International Criminal Law Review, 2006.

17. Jennifer Smith, An International Hit Job: Prosecuting Organized Crime Acts as Crimes
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Against Humanity 97(4) Georgetown Law Journal, 1112, 2009.

18. Fruili Michaela, Are Crimes against Humanity More Serious than War Crimes? 12 EJIL,

329, The Legal Regime of International Criminal Court, Essay in honour of professor Igor

Blishchenko., Edited by José Doria, Hans-Peter Gasser, M. Cherif Bassiouni, 2001.

19. Hansen, Thomas Obel, the Policy Requirement in Crimes Against Humanity: Lessons from

and for the Case of Kenya 43(1), the George Washington International Law Review 1,

2011.

20. Haque, Adil Ahmad, Law and Morality at War, Criminal Law and Philosophy 79, 2014.

21. Harvard Research in International Law, Draft Convention on Jurisdiction with Respect to

Crime.

22. Hoffman, Tamas, squaring the circle? – International humanitarian law and

Transnational Armed Conflicts, Hague Academy of International Law, 5, 2010.

23. Hulme, Karen, War Torn Environment: Interpreting the Legal Threshold, 2004.

24. Hwang, Phyllis, Defining Crimes against Humanity in the Rome Statute of the International

Criminal Court 22 Fordham International Law Review 457, 1999.

25. Commentary on the Additional Protocols to the Geneva Conventions (1987),

26. Commentary on the Geneva Conventions of 12 August 1949, Volume I, ICRC, 1952

27. Jennings, R, The Limits of State Jurisdiction – the Collected Writings of the Sir Robert

Jennings, 1998.

28. William A. Schabas, State Policy as an Element of International Crimes, volume 98,

Journal of Criminal Law and Criminology, Issue 3, 2004.

29. Jescheck, Hans- Heinrich, The General Principles of International Criminal Law Setout in

Nuremberg, as mirrored in the ICC Statute 2, Journal of International Criminal Justice 38

,2004.

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30. Kraytman, Yana Shy, Universal Jurisdiction- Historical Roots and Modern Implications 2

Brussels Journal of International Studies, 103, 2005.

31. Kress, Claus, On the Outer Limits of Crimes against Humanity: The Concept of

Organization within the Policy Requirement: Some Reflections on the March 2010 ICC

Kenya Decision, 23 Lieden Journal of International Law 855, 2010.

32. Robinson, Darryl, Crimes against Humanity at the Rome Conference, American Society of

International Law, 1999.

33. Schabas, William A., An Introduction to International Criminal Court, the International

Criminal Court, 4th Edition, 2011

34. Stewart, James G, towards a single definition of armed conflict in international

humanitarian law: A critique of internationalized armed conflict 85 (850) ICRC, 313(2003).

INTERNATIONAL LEGAL INSTRUMENTS

1. ADDITIONAL PROTOCOL I: Protocol Additional to the Geneva Conventions of 12 August

1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)

8 June 1977

2. ADDITIONAL PROTOCOL II: Protocol Additional to the Geneva Conventions of August

1949, and relating to the Protection of Victims of Non-International Armed Conflicts

(Protocol II) 8 June 1977

3. ELEMENTS OF CRIMES: Elements of Crimes of the International Criminal Court, ICC-

ASP/1/3

4. ROME STATUTE: Rome Statute of the International Criminal Court (July 1, 2002)

5. RULES OF PROCEDURE AND EVIDENCE: Rules of Procedure and Evidence,

International Criminal Court, U.N. Doc. PCNICC/2000/1/Add.1 (2000)

6. ICRC- How is the Term “Armed Conflict” Defined in International HumanitarianLaw?

ICRC Opinion Paper (March 2008)

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7. ICRC Report on International Humanitarian Law and The Challenges ofContemporary

Armed Conflicts, 03/IC/09 (2003)

8. ICRC Report on International Humanitarian Law and the challenges of contemporary

armed conflicts 31IC/11/5.1.2 (2011)

9. ILA: Final Report on the Meaning of Armed Conflict in International Law, Use ofForce

Committee (2010)

10. UN WAR CRIMES COMMISSION: United Nations War Crimes Commission Project,

(1942)

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STATEMENT OF JURISDICTION

The jurisdictional prerequisites are satisfied in the present case. The Court has personal

jurisdiction over the Defendant’s conduct pursuant to Article 12(2)(b) of the Statute as the

Defendant is a national of Kissaka, a State Party to the Statute. The crimes perpetrated fall

within the jurisdiction of the Court pursuant to Article 5 of the Statute as the crime concerned

falls within the domain of Article 8 of the Statute.

Article 5: Crimes within the Jurisdiction of the Tribunal

The Jurisdiction of the Tribunal shall be limited to the most serious crimes of concern to the

international community as a whole. The Tribunal has jurisdiction in accordance with this

Statute with respect to the following crimes: (a) The crime of Genocide; (b)Crimes against

Humanity; (c) War Crimes; (d) The Crime of Aggression.

Article 12 (2)(b): Preconditions to the Exercise of Jurisdiction

(2) In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one

or more of the following States are Parties to this Statute or have accepted the jurisdiction of

the Court in accordance with paragraph 3

(b) The State of which the person accused of the crime is a national.

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STATEMENT OF ISSUES

ISSUE 1: COUNT 1 OF THE MOOT PROPOSITION

WHETHER PRESIDENT GARBA SHALL BE HELD CRIMINALLY RESPONSIBLE UNDER

ART.25 FOR THE WAR CRIME PERTAINING TO THE DAMAGE CAUSED TO BAOBAB

SAPLINGS UNDER ART. 8(2)(B)(IV)?

ISSUE 2: COUNT 2 OF THE MOOT PROPOSITION

WHETHER PRESIDENT GARBA IS LIABLE CRIMINALLY RESPONSIBLE BY VIRTUE OF

ART 25 OF THE ROME STATUTE FOR ORDERING, SOLICITING OR INDUCING THE

WAR CRIME UNDER ART. 8(2)(B)(IV) AS THE STATUTE PERTAINING TO THE DAMAGE

CAUSED BY THE INTRODUCTION OF CRUDE OIL INTO THE NADAWADA RIVER

ART.8(2)(B)(IVV)?

ISSUE 3: COUNT 3 OF THE MOOT PROPOSITION

WHETHER PRESIDENT GARBA IS CRIMINALLY RESPONSIBLE AS A SUPERIOR BY

VIRTUE OF ARTICLE 28 OF THE ROME STATUTE FOR THE WAR CRIME PERTAINING

KILLING OF 5 UN PERSONNEL UNDER ART. 8 (2)(B)(III) OF THE ROME STATUTE?

ISSUE 4: COUNT 4 OF THE MOOT PROPOSITION

WHETHER PRESIDENT GARBA IS CRIMINALLY RESPONSIBLE AS A SUPERIOR

UNDER ART.28 OF THE ROME STATUTE FOR THE COMMISSION OF THE WAR OF

ATTACKING CIVILIANS AS PROVIDED IN ART. 8(2)(B)(I) OF THE ROME STATUTE?

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STATEMENT OF FACTS

PARTIES TO THE CONFLICT

The parties to the Pre-Tribunal Chamber for confirmation of charges are Prosecutor

(hereinafter Prosecution) and Mr Azizi Garba (hereinafter defence).

AGREED FACTS

President Garba collaborated with King Abdu to capitalize on the newfound oil reserve. Upon

being notified about the possible harm King Abdu withdrew from the oil drilling. After a month

of tension between both the leaders, President Garba mobilized troops to secure the oil access

point in Momaayo which later turned into a hostile event. The incursion alerted the RMA, who

then forced the troops out of the village. Later, to weaken the RMA stationed in the border

region President Garba ordered his troops to introduce crude oil into the Nadawada River.

The UN adopted a peace operation in Momaayo to assess and investigate the overall impact

on civilians and the natural environment. Several states adopted sanctions to restrict the

supply of weapons, oil and fertilizer to the country. President Garba then ordered Lt. Col. Diallo

to return to Dunanti to secure the oil access point. Upon arriving in Dunanti, Lt. Col. Diallo

encountered the UNEP workers which led to an extraordinary event resulting in the death of

five UN personnel. In response to the latest violence, King Abdu referred the situation in

Momaayo to the ICC. The prosecutor confirmed the opening of the investigation after which

President Garba ordered his troops to retreat the border.

TIMELINE OF EVENTS

February 2020. A large source of oil beneath the border of Momaayo and Kissaka was

discovered. The two countries collaborated to investigate the best oil

access point. Momaayo withdrew from the collaboration and denied to

proceed with the oil drilling. Tensions began rising between the

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nations.

18th April,2021 President Garba sent his troops to the border between Kissaka and

Momaayo. Sending Lt. Col. Diallo and his battalion to the border was

seen as a direct threat to the Momaayo government.

20th April, 2021 King Abdu publicly stated that every Momaayo man and boy take

steps to defend their country.

24th April, President Garba gave Lt. Col. Diallo the order to cross the border of

Momaayo to peacefully secure the oil access point & 170 civilians
2021
were killed.

25th April, The RMA sent a unit of heavily armed soldiers to Dunanti to force the

Kissakan troops out of the village.

2021

10th July 2021 President Garba gave the order to filter crude oil into the Nadawada

River.

28th August The Security Council authorized a UN peacekeeping operation in

2021 Momaayo.

5th October, President Garba gave Lt. Col Diallo the order to return to Dunanti to

lawfully secure the oil access point.

2021

7th October King Abdu outraged by the latest violence referred the situation in

2021 Momaayo to the ICC.

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SUMMARY OF PLEADINGS

1. PRESIDENT GARBA IS NOT CRIMINALLY RESPONSIBLE UNDER ART. 25 THE WAR CRIME UNDER

ART. 8(2)(B)(IV) OF THE STATUTE PERTAINING TO THE ALLEGED DAMAGE TO THE BAOBAB TREE

SANCTUARY.

In the present case, President Garba did not launch an attack, secondly, the damage caused

to the Baobab saplings does not show the requisite Actus Reus to qualify as a war crime,

thirdly the act was in conformity with the principles of proportionality, and President Azizi

Garba did not have the knowledge about the damages and lastly, Mr Garba is not criminally

responsible under Art. 25.

2. PRESIDENT GARBA SHALL NOT BE HELD CRIMINALLY RESPONSIBLE UNDER ART. 25 AS A

SUPERIOR FOR THE WAR CRIME UNDER ART. 8(2)(B)(IV) OF THE STATUTE.

In the present case, President Garba did not launch an attack, secondly, the act of introduction

of crude oil does not show the requisite Actus Reus to qualify as a war crime under Article

8(2)(b)(iv), thirdly, the act was in consonance with the principles of proportionality and,

President Garba did not have the knowledge of the damages lastly, President Garba is not

criminally responsible under Art. 25.

3. PRESIDENT GARBA SHALL NOT BE HELD CRIMINALLY RESPONSIBLE UNDER ART.28 AS A

SUPERIOR FOR THE WAR CRIME UNDER ART. 8(2)(B)(III).

In the present case, President Garba did not have effective control over Lt. Col. Diallo, he had

no knowledge about the crime which his subordinates were about to commit and he took all

the necessary steps within his control to prevent the crime.

4. PRESIDENT GARBA SHALL NOT BE HELD CRIMINALLY RESPONSIBLE UNDER ART.28 FOR THE WAR

CRIME UNDER ART.8(2)(B)(I).

In the present case, firstly, President Garba had no intention of attacking the civilian population

of Momaayo, secondly, the civilians directly took part in the hostilities and thirdly, because

President Garba had no effective control & he took all necessary steps in order to prevent the

armed conflict.

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PLEADINGS

1. WHETHER PRESIDENT GARBA IS CRIMINALLY RESPONSIBLE BY VIRTUE OF ART 25 OF THE

ROME STATUTE FOR ORDERING, SOLICITING OR INDUCING THE WAR CRIME UNDER ART

8(2)(B)(IV) OF THE STATUTE PERTAINING TO THE DAMAGE CAUSED TO BAOBAB SAPLINGS?

In the present case, President Garba is not criminally responsible for war crimes under Article

8(2)(b)(iv) pertaining to the destruction of Baobab saplings as [1.1] President Garba did not

launch an attack against Momaayo, [1.2] The damage caused to the Baobab saplings does

not show the requisite Actus Reus to qualify as a war crime under Article 8(2)(b)(iv), [1.3] The

act was in conformity with the principles of proportionality, [1.4] President Garba did not have

the knowledge about the damages, [1.5] President Garba is not criminally responsible by

virtue of Art. 25 (3)(b) for ordering, soliciting or inducing the war crime.

1.1. PRESIDENT GARBA DID NOT LAUNCH AN ATTACK AGAINST MOMAAYO.

The term ‘attack’ is specifically defined for IHL purpose and means “acts of violence against

the adversary, whether in offence or in defence”.1 The term ‘acts of violence’ denotes physical

force.2 In the present case, President Garba at 11:25 pm on 24 April 2021 gave orders for

troops to quietly cross the border only to secure the oil access point.3 President Garba in his

orders specifically directed to contain the villagers peacefully in their houses.4 Moreover, the

objective of the military operation as stated by President Garba did not include any harm or

1 API Art. 49.1; Prosecutor v. Dario Kordić, ICTY, IT-95-14/2, Appeals Chamber, Dec. 17, 2004, ¶. 47; Prosecutor

v. Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30

September 2008, ¶ 266.

2 Otto Triffterer, Kai Ambos, 2015. The Rome Statute of the International Criminal Court (A Commentary). 3rd

ed., Attack.
3 Moot Proposition ¶ 20.
4 Ibid.

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violent physical force against the civilians.5 Therefore, President Garba did not launch an

attack as his orders pertained only to a peaceful military operation.

1.2. THE DAMAGE CAUSED TO THE BAOBAB TREES DOES NOT SHOW THE REQUISITE ACTUS

REUS TO QUALIFY AS A WAR CRIME UNDER ARTICLE 8(2)(B)(IV).

Article 8(2)(b)(iv) of the Rome Statute lays down certain conditions that the attack must cause

‘widespread’, ‘long-term’, ‘severe’ damage to the natural environment.6 The provisions in Add.

Prot. I, neither the ICC Statute nor its Elements specify the meaning of the words ‘widespread,

long-term and severe.7 In the present case, President Garba is not guilty of causing

widespread, long-term and severe damage as [1.2.1] The damage caused to the Baobab

saplings is not widespread [1.2.2] The damage caused to the Baobab saplings is not long-

term [1.2.3] The damage caused to the Baobab saplings was not severe.

1.2.1. THE DAMAGE CAUSED TO THE BAOBAB SAPLINGS IS NOT WIDESPREAD.

The notion of ‘widespread’ has been laid as encompassing an area, which go beyond the

standard of several hundred square kilometres.8 The term 'widespread' indicates something

which happens over a large area or involves multitude of people.9

In the present case, the very effect of the alleged destruction was limited to the Baobab tree

saplings. None of the Baobab trees was harmed during the military operation undertaken by

Kissakan troops. However, the Kissakan troops have only allegedly destroyed the Baobab

tree saplings, thus, the insect population or the eco-sphere would not have left an impact of

‘widespread’ nature. Therefore, in the absence of any destruction which is extending over a

5 Moot Proposition ¶ 20.

6 Elements of Crime, Art. 8(2)(b)(iv).
7 See the Understanding to Art. 1 ENMOD (Otto Trifterer)
8 UNEP (n 13) 5, § 1 of the Recommendations; See Rogers, A. P. V., see at 171 and Arnold, R., Routledge

Handbook.
9 The Oxford English Dictionary, 1989, www.oed.com.

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large area or involving multitudes of organisms, the damage cannot be termed as

'widespread'.

1.2.2. THE DAMAGE CAUSED TO THE BAOBAB SAPLINGS IS NOT LONG-TERM.

In absence of any expressed definition, there seems to be an agreement in the doctrine, that

the requirement of ‘long-term’ damage refers to some decades (at least two or three) as

opposed to months or a season, as it is instead the case under the ENMOD.10

In the present case, the 25000 Baobab saplings that were planted 9 years ago were destroyed

in the course of the military campaign,11 which implies that restoring the damage caused, it

would take less than a decade. Therefore, this falls short of the ‘damage that lasts decades’

required for the classification of the act as ‘long-term.’

1.2.3. THE DAMAGE CAUSED TO THE BAOBAB SAPLINGS WAS NOT SEVERE.

The notion ‘severe’ is expressed as involving serious or significant disruption or harm to

human life, natural economic resources or other assets.12

In the present case, the Baobab saplings were grown in the sanctuary,13 thus limiting its overall

ecological role and presence in the human environment.

Arguendo, the Baobab saplings were far from turning into a tree, which requires at least a

duration of 15-20 years.14 Thus, leading to no ‘severe’ damage considering the standing

10 See the Understanding to Art. 1 ENMOD.

11 Moot Proposition ¶ 21.
12 UNEP (n 13) 5, § 1 of the Recommendations; See Rogers, A. P. V., see at 171 and Arnold, R., Routledge

Handbook.
13 Moot Proposition ¶ 2.
14 https://www.britannica.com/plant/baobab-tree-genus.

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ecological dependence on the sapling. Therefore, the damage caused to the saplings does

not amount to the ‘severe’ damage requirement.

1.3. THE ACT WAS IN CONFORMITY WITH THE PRINCIPLE OF PROPORTIONALITY.

As per Art 8(2)(b)(iv)15 the extent of the damage must be ‘clearly excessive’ to the ‘direct’ and

‘overall’ military advantage anticipated.16 This element deals with the proportionality of the

anticipated utility gained from the military action as compared to the damage it caused. Losses

among the civilian population and damages to the civilian property which are necessary to

fulfil the (i) military objective17 and which are proportionate in relation to the (ii) military

advantage18 sought, are justified.19

In the present case, the military objective was the oil access point located in the Baobab Tree

Sanctuary.20 The nature of the objective was direct and concrete which offered a definite

military advantage.21 The Kissakan tanks were slowly rolled to create a direct path to the oil

access point to evade the Momaayan troops.22 Considering the anticipated alternative was a

full-scale armed conflict and the anticipated military advantage gained was the retention of the

life of the personnel and secure access to the oil point, the action of the Kissakan troops was

justified. Therefore, the act was in conformance with the principle of proportionality.

15 Elements of Crime, Art. 8(2)(b)(iv).

16 Ibid.
17 ICRC, Customary IHL Database https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule8
18 ICRC, Customary IHL Database https://casebook.icrc.org/glossary/military-advantage
19 Arnold, R., The ICC as a New Instrument for Repressing Terrorism 75 (2004); Fernandez J., et Pacreau, X.,

Commentaire du Statute de Rome de la CPI, (Paris: Pedone, 2012), at 519 et seq (Otto Triffterer); 19 Arnold R.,

Routledge Handbook; ICTY, Final Report of the Committee Established to Review the NATO Bombing Campaign

Against the Federal Republic of Yugoslavia, § 21.

20 Moot Proposition ¶ 20.
21 Ibid.
22 Moot Proposition ¶ 21.

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1.4. PRESIDENT GARBA DID NOT HAVE KNOWLEDGE OF THE POSSIBLE DAMAGES.

Quantifying the expected damage to elements of the natural environment is also more

challenging than for other types of incidental harm.23 This is particularly the case for long-term

effects and for damage that is purely to elements of the natural environment itself.24

In the present case, President Azizi Garba had no actual knowledge25 of the damage that

would result from the military operation. His only objective was to capitalize on the newfound

oil reserve to provide significant benefit to the Kissakan army who had not been able to afford

sufficient oil in the past 10 years to fuel its weaponry and to also curb poverty.26 The

consequence of the military operation could not have been quantified or formed a basis of

anticipation in the course of the event by him. Therefore, President Azizi Garba is not guilty of

intentionally causing damage to the natural environment of Momaayo.

1.5. PRESIDENT GARBA IS NOT CRIMINALLY RESPONSIBLE BY VIRTUE OF ART. 25 (3)(B) FOR

ORDERING, SOLICITING OR INDUCING THE WAR CRIME.

Under Article 25(3)(b) Statute,27 anyone who orders the commission of a crime under

international law or who instigates (‘solicits’ or ‘induces’) another to commit such a crime is

23 ICTY, Final Report of the Committee Established to Review the NATO Bombing Campaign Against the Federal

Republic of Yugoslavia, § 21.

24 Bothe, M., Bruch, C., Diamond, J. and Jensen, D. (2010), ‘International law protecting the environment during

armed conflict: gaps and opportunities’, International Review of the Red Cross, Vol. 92, No. 879, September

2010, p. 569, p. 578; Final Report to the Prosecutor of the Committee Established to Review the NATO Bombing

Campaign against the Federal Republic of Yugoslavia.

25 Rome Statute, Art. 30.
26 Moot proposition ¶ 10.
27 Rome Statute, Art. 25(3)(b)

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criminally liable.28 Ordering requires that the person giving the order intended for the crime to

be committed.29

In the present case, President Garba did not intend to commit the war crime under Art.

8(2)(b)(iv) as the mental element for instigation requires that President Garba wished to

‘provoke or induce’ the commission of the crime which is absent.30 Therefore, President Garba

is not criminally responsible under Art. 25(3)(b).

2. WHETHER PRESIDENT GARBA IS CRIMINALLY RESPONSIBLE BY VIRTUE OF ART 25 OF THE

ROME STATUTE FOR ORDERING, SOLICITING OR INDUCING THE WAR CRIME UNDER ART.

8(2)(B)(IV) OF THE STATUTE PERTAINING TO THE DAMAGE CAUSED BY THE INTRODUCTION OF

CRUDE OIL INTO THE NADAWADA RIVER UNDER ART. 8(2)(B)(IV)?

In the present case President Garba is not criminally responsible for war crimes under Article

8(2)(b)(iv) pertaining to the Introduction of Crude oil into the Nadawada River as [2.1]

President Garba did not launch an attack against Momaayo, [2.2] The act of introduction of

crude oil does not show the requisite Actus Reus to qualify as a war crime under Article

8(2)(b)(iv). [2.3] The act was in consonance with the principle of proportionality. [2.4] President

Garba did not have the knowledge of the damages, [2.5] President Garba is not criminally

responsible by virtue of Art. 25(3)(b) for ordering, soliciting or inducing the war crime.

2.1. PRESIDENT AZIZI GARBA DID NOT LAUNCH AN ATTACK AGAINST MOMAAYO.

Humanitarian law defines attacks as acts of violence against an adversary, whether carried

out in offense or in defense.31

28 Gerhard Werle, Individual Criminal Responsibility in Article 25 ICC Statute.

29 Prosecutor v. Dario Kordić, ICTY, IT-95-14/2, Appeals Chamber, Dec. 17, 2004, ¶. 47.
30 Elements of Crime, Art. 8(2)(b)(iv).
31 API Art. 49.1; Prosecutor v. Dario Kordić, ICTY, IT-95-14/2, Appeals Chamber, Dec. 17, 2004, ¶. 47;

Prosecutor v. Katanga and Chui, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/07-717.

30 September 2008, ¶ 266.

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In the present case, the introduction of crude oil was only to weaken the stationed RMA forces

backed with heavy and sophisticated weapons.32 The act did not involve any form of physical

force or violence thus preventing it to fall within the meaning of ‘attack’ as defined by IHL.

President Garba ordered to introduce the crude oil into the river only to limit RMA’s ability to

be stationed at the border.33 Therefore, President Garba is not guilty of intentionally launching

an attack.

2.2. THE DAMAGE CAUSED TO THE NADAWADA RIVER DOES NOT SHOW THE REQUISITE ACTUS

REUS TO QUALIFY AS A WAR CRIME UNDER ARTICLE 8(2)(B)(IV).

Article 8(2)(b)(iv) of the Statute34 lays down certain conditions that must be met for thewar

crime to be committed as mentioned under [1.2]. In the present case the damage cause does

not meet the high threshold set as [2.2.1] The damage caused by the introduction of crude oil

into the Nadawada River is not widespread [2.2.2] The damage caused by the introduction of

crude oil into the Nadawada River is not long-term [2.2.3] The damage caused by the

introduction of crude oil into the Nadawada River is not severe.

Arguendo, only those attacks which are being launched in the knowledge that it will cause

widespread, severe and long-term damage to the environment, and which would be clearly

excessive with regard to the anticipated military advantage, shall be considered a war crime.35

32 Moot proposition ¶ 29.

33 Ibid.
34 Elements of Crime, Art. 8(2)(b)(iv).
35 Hebel, von H./Robinson, D., Note 263.

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2.2.1. THE DAMAGE CAUSED BY THE INTRODUCTION OF CRUDE OIL INTO THE NADAWADA RIVER

IS NOT WIDESPREAD.

As elaborated under [1.2.1] it is evident that to satisfy the requirement of damage being

‘widespread’ as per Article 8(2)(b)(iv) of the Rome Statute, the scale of the destruction of the

natural environment must be in the scale of hundreds of square kilometres.

In the present case, the oil introduced into the Nadawada River ran downstream into Momaayo

and its Nadawada Lake.36 It is expressly stated that Nadawada is a small river that runs

through the length of Momaayo thus limiting the damage caused to the Kingdom of

Momaayo.37 Since the territorial area of Momaayo is around 24,760 m2.38 Therefore, the

damage caused falls short of the “hundreds of kilometres” scale required to be seen as

widespread.

2.2.2. THE DAMAGE CAUSED BY THE INTRODUCTION OF CRUDE OIL INTO THE NADAWADA RIVER

IS NOT LONG-TERM.

The environmental damage from a military attack has historically been shown to be non-

quantifiable and reliable.39 However, the requirement of ‘long-term’ damage under the Add.

Prot., I refer to some decades, at least two or three.

In the present case, the complete dissipation of crude oil from the river would take 12 years,

which falls short of the requirement of ‘some decades. Moreover, in the case of the damage

caused to the Nadawada river the initial scientific estimates are subject to the same

uncertainty and unreliability that is repeatedly faced when estimating the damage caused due

36 Moot proposition ¶ 1.
37 Ibid.
38 Supra, n.36.
39 Environmental hazards of sea-dumped chemical weapons. Environ. Sci. Technol. 44(12): 4389–4394.

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to armed conflict. Therefore, in light of such unreliability, the act cannot be classified as ‘long

term’.

2.2.3. THE DAMAGE CAUSED BY THE INTRODUCTION OF CRUDE OIL INTO THE NADAWADA RIVER

IS NOT SEVERE.

Environmental damage is hard to assess in terms of severity, and given nature’s ability to heal

itself, difficult to measure in terms of longevity.” 40

In the present case, the harm caused to the environment of Momaayo has been assessed

through the lens of such unreliability. The investigation held to assess the damage is yet to

reach a final conclusion for the deployment of a cleaning method.41 Therefore, the damage

caused cannot be called ‘severe’.

2.3. THE ACT WAS IN CONFORMANCE WITH THE PRINCIPLES OF PROPORTIONALITY.

The inclusion of the doctrine of the proportionality test,42 requires the military advantage to be

foreseeable by the perpetrator at the relevant time and which may or may not be temporally

or geographically related to the object of the attack.43

In the present case, lack of sophisticated weapons in the arsenal of Kissaka and the added

strain on the military due to the ongoing armed conflict, the anticipated advantage of the

40 Tara Weinstein, Note, Prosecuting Attacks that Destroy the Environment: Environmental Crimes or

Humanitarian Atrocities? 17 GEo. INT' L ENVTL. REv. 697, 708 (2005).

41 Moot Proposition ¶ 34.
42 Do¨rmann K., Elements of war crimes, 166; Fenrick, W., ‘The Rule of Proportionality and Protocol I in

Conventional Warfare’ (1982) 98 MilLRev 91; See however Hulme, K., War Torn Environment: Interpreting the

Legal Threshold (Martinus Nijhoff Publishers 2004) 78, in whose view this requirement is pleonastic.
43 Elements of Crime, 8(2)(b)(iv), see http://www1.umn.edu/ humanrts/instree/iccelementsofcrimes.html (last

viewed 18 Oct. 2014); ICTY (n 39) § 50; Do¨rmann, see at 176; Lawrence, see at 86.

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introduction of crude oil into the Nadawada River was the systematic weakening of the RMA

stationed at the border.44 Therefore, the anticipated military advantage was very significant.

2.4. PRESIDENT GARBA DID NOT HAVE KNOWLEDGE OF THE POSSIBLE DAMAGES.

"Unless otherwise provided”,45 the ICC's jurisdiction applies only to criminals who commit their

crimes with “knowledge”.46 This is true as well for the Statute's conception of the definition of

"knowledge," which consists not only of awareness of the circumstances but also of the

consequences that occur in the ordinary course of events.47

In the present case, the information available was insufficient to provide a reasonable basis to

believe that the anticipated civilian impact would have been clearly excessive in relation to the

anticipated military advantage of the attack. Therefore, President Garba is not guilty of

intentionally causing damage to the natural environment of Momaayo.

2.5. PRESIDENT GARBA IS NOT CRIMINALLY RESPONSIBLE BY VIRTUE OF ART. 25 (3)(B) FOR

ORDERING, SOLICITING OR INDUCING THE WAR CRIME.

Under Article 25(3)(b) Statute,48 criminal responsibility requires that the crime in question has

actually been committed or has at least been attempted.4949 Ordering and instigation are thus

accessory modes of liability

44 Moot proposition ¶ 29.

45 The International Criminal Court: A Commentary on the Rome Statute. 2nd edition. By William A. Schabas.

Oxford, UK: Oxford University Press, 2016. Pp. xci, 1,589. ISBN 978-0-19-873977-7. Pg. 109.
46 Rome Statute, Art.30; see also The International Criminal Court: A Commentary on the Rome Statute. 2nd

edition. By William A. Schabas. Oxford, UK: Oxford University Press, 2016. Pp. xci, 1,589. ISBN 978-0-19-

873977-7, Pg.108.
47 Rome Statute, Art. 30(3); see also The International Criminal Court: A Commentary on the Rome Statute. 2nd

edition. By William A. Schabas. Oxford, UK: Oxford University Press, 2016. Pp. xci, 1,589. ISBN 978-0-19-

873977-7. Pg.108.
48 Rome Statute, Art. 25(3)(b).
49 Prosecutor v. Stanilav Galic (Trial Judgement and Opinion), IT-98-29-T, (ICTY), 5 December 2003.

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In the present case, President Garba did not intend to commit the war crime under Art.

8(2)(b)(iv)50, as the mental element for instigation requires that President Garba wished to

‘provoke or induce’ the commission of the crime which is absent.51 Therefore, President Garba

is not criminally responsible under Art. 25(3)(b).

3. WHETHER PRESIDENT GARBA IS CRIMINALLY RESPONSIBLE AS A SUPERIOR BY VIRTUE OF

ARTICLE 28 OF THE ROME STATUTE FOR THE WAR CRIME PERTAINING KILLING OF 5 UN

PERSONNEL UNDER ART. 8 (2)(B)(III)?

The defence submits that President Garba is not guilty as a superior for the purpose of Art. 28

of the Rome Statute concerning the commission of the war crime under Art. 8(2)(b)(iii) as [3.1]

The elements of the crime under art. 8(2)(b)(iii) are not satisfied and [3.2] President Garba is

not criminally responsible as a superior under Art. 28 of the Rome Statute.

3.1. THE ELEMENTS OF WAR CRIME UNDER ART. 8(2)(B)(III) ARE NOT SATISFIED.

The elements of a war crime under art. 8(2)(b)(iii) are not satisfied as [3.1.1] The object of the

attack were not UN Personnel involved in humanitarian assistance or peacekeeping mission

[3.1.2] President Garba did not intend UN personnel to be the object of the attack [3.1.3] UN

Personnel were not entitled to that protection given to civilians.

3.1.1. THE OBJECT OF THE ATTACK WAS NOT UN PERSONNEL.

The object of the attack should be involved in any kind of humanitarian assistance i.e., its sole

purpose must be to prevent & alleviate human suffering52 or peacekeeping mission. For a

50 Rome Statute, Art. 25(3)(b).

50 Elements of Crime, Art. 8(2)(b)(iv).
51 Refer to [2.4].
52 Nicaragua v. United States, 1986 I.C.J. 14.

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mission to be called a peacekeeping mission there are three principles laid down 1. Consent

of both parties, 2. Impartiality, 3. Non use of force except in self-defence.53

However, in the present case, it is evident from the facts that UN personnel was the first to

use force, against Lt. Col. Diallo,54 which shows that the UN police officer violated the rules of

the peacekeeping mission, and the activities performed by Lt. Diallo was done in self-defence

and not with the intention to harm the UN personnel.

3.1.2. PRESIDENT GARBA DID NOT INTEND FOR UN PERSONNEL TO BE THE OBJECT OF THE

ATTACK.

Article 30 of the Rome Statute states that a person has a purpose if they have the intention to

engage in the activity.55

In the present case, UNEP worker fired the first round against Lt. Diallo, and in self-defence,

Lt. Diallo used his weapon. However, neither Lt. Diallo nor President Garba intended to make

UNEP workers the object of the attack. Lt. Diallo and his troop’s primary goal was to peacefully

seize the oil access point56, indicating that his intention was never to harm the UN personnel,

instead he only started attacking them after the UN police officer opened fire which posed a

real threat to his life.57

3.1.3. UN PERSONNEL WERE NOT ENTITLED TO THAT PROTECTION GIVEN TO CIVILIANS

Un Personnel are combatants for the purposes of Art. 8(2)(b)(iii) as they fulfil the conditions

prescribed in article 50 of the Add Protocol 1. The said conditions provide that if a person falls

53 Prosecutor v. Issa Hassan Sesay, Morris Kallon, and Augustine Gbao (the RUF accused) (trial judgement).
54 Moot Proposition, ¶ 37.
55 Rome Statute, Art. 30.
56 Moot Proposition, ¶ 36.
57 Moot Proposition, ¶ 37.

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within the criteria of Art 4(a) of 1,2,3,6 of the Third Geneva Convention then he qualifies as

combatant.

Art. 4 (a)(2) of the third Geneva Convention provides a person belonging to a volunteer Corps

if carries a weapon openly and wears a distinct uniform is a combatant.

The police officer in the present case was carrying a standard issue SIG Sauer M18 semi-

automatic weapon that was fastened to her hip, and UN employees were wearing blue berets

that prominently displayed the UN logo so they qualified as a combatant

3.2. PRESIDENT GARBA IS NOT CRIMINALLY RESPONSIBLE AS SUPERIOR UNDER ART. 28 OF

THE ROME STATUTE.

President Garba is not criminally responsible as a superior under Art. 28 of the Rome

Statute.as [3.2.1] President Garba had no effective control [3.2.2.] President Garba had no

knowledge [3.2.3] President Garba took all the necessary steps to prevent the crime.

3.2.1. PRESIDENT GARBA HAD NO EFFECTIVE CONTROL.

In the Bemba case,58 the Pre-Trial Chamber II said that in English command means ‘authority,

especially over armed forces’ and authority means the ‘power or right to give orders and

enforce obedience.’

In this instance, President Garba was only in a position to give orders to Kissakan troops to

enter Dunanti and secure the oil access point and not to make them obey as concurrent

effective control was in the hands of Lt. Col. Diallo due to the disconnect caused by

geographical separation.

58 Prosecutor v. Jean – Pierre Bemba Gombo, ICC- 01/05-01/08.

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3.2.2. PRESIDENT GARBA HAD NO KNOWLEDGE.

As per Article 28(b)59, a superior shall be criminally responsible, if the superior either knew or

consciously disregarded information that clearly indicated, that the subordinates were

committing or about to commit such crimes.60

In the present case, President Garba ordered the Kissakan military to cross the border and

peacefully secure the oil access site. And while moving towards the oil access point Lt. Diallo

encountered 4 UNEP workers along with a UN police officer who was armed. Upon seeing Lt.

Diallo, the UN police officer shot a bullet which bounced off the ground and hit one of the

UNEP workers & on hearing the gunshot and screaming, in the spur of the moment, an armed

conflict broke out between UN personnel and Lt. Diallo which was completely unforeseeable

by President Garba.

Hence, President Garba neither had the knowledge or did he consciously disregard any

relevant information of the attack beforehand nor he had any reason to know as Lt. Diallo had

no earlier history of attacking UN personnel.

3.2.3. PRESIDENT GARBA TOOK ALL NECESSARY STEPS TO PREVENT THE CRIME.

In the case of Halilović ("Grabovica-Uzdol")61 Trial Chamber stated that " the duty to prevent

entails in a particular case will depend on the superior’s material ability to intervene in a

specific situation."

In the present case, President Garba ordered his troops to secure the oil access point situated

in Momaayo, he tried to prevent the crime by instructing his troops to perform the task in a

lawful manner62 but the incident took place in the Baobab Sanctuary which was located in

59 Rome Statute, Article 28(b).

60 Otto Triffterer, Kai Ambos, 2015. The Rome Statute of the International Criminal Court (A Commentary). 3 rd

ed., Article 28.

61 Prosecutor v. Sefer Halilović ("Grabovica-Uzdol"), IT-01-48-T, Trial Judgment 16 November 2005, ¶. 89.
62 Moot Proposition, ¶ 36.

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Momaayo. 63 Therefore, President Garba had no material ability to intervene over the conflict

that ensued and escalated in a short span of time, as he was far removed from the scene of

the crime.

4. WHETHER PRESIDENT AZIZI GARBA IS CRIMINALLY RESPONSIBLE UNDER ART. 28 FOR THE WAR

CRIME OF ATTACKING CIVILIANS UNDER ARTICLE 8(2)(B)(I)?

In the instant case, the war crime of intentionally directing an attack on civilians was not

committed under Art. 8(2)(b)(i) of the Statute as [4.1.] President Garba had no intention of

attacking the civilian population of Momaayo, [4.2] The civilians directly took part in the

hostilities and [4.3] President Garba is not responsible as a superior under Art. 28.

4.1. PRESIDENT GARBA HAD NO KNOWLEDGE AND INTENTION OF ATTACKING THE CIVILIAN

POPULATION OF MOMAAYO.

The war crime under Article 8(2)(b)(i) of the Statute requires the perpetrator to have “intended”

the attack. Article 30 of the Rome Statute provides that it must be established that the material

elements of the crime were committed “with intent & knowledge” unless the Statute or the

Elements of Crimes provides otherwise.64

4.1.1. PRESIDENT GARBA HAD NO INTENTION OF ATTACKING THE CIVILIAN POPULATION.

According to Article 3065, a person has intent where a person means to engage in the conduct

and means to cause that consequence or is aware that it will occur in the ordinary course of

events.66

63 Moot Proposition, ¶ 37.

64Prosecutor v. Germain Katanga and Chui, ICC, ICC-01/04-01/07, Judgement top pursuant to Art. 74 of the

Rome Statute, Trial Chamber II, 7 March 2014, ¶ 770.

65 Rome Statute, Art. 30.
66 Ibid.

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However, in the present case what happened could not possibly be foreseen by President

Garba as it happened in an extraordinary course of events where villagers started exiting their

homes to confront the Commando Battalion troops.67

President Azizi Garba had no intention of attacking the civilian population of Momaayo, from

the very beginning his sole objective was to attain military advantage peacefully68 and

therefore, he tried to collaborate with King Abdu in order to take control the newfound oil

reserve.69 But when King Abdu withdrew from his promise, he ordered his troops to peacefully

secure the oil access.

Therefore, it can be asserted that President Garba had no intention of attacking the civilian

population of Momaayo.

4.1.2. PRESIDENT GARBA HAD NO ACTUAL KNOWLEDGE OF THE ATTACK.

Article 2870 requires that the individual either knew or should have known that his subordinates

were committing or about to commit a crime. In the first alternative, actual knowledge is

required.71 Pre-Trial Chamber II said that actual knowledge cannot be presumed, but rather

must be established through evidence.72

In the present case, President Garba had no actual knowledge of the fact that a massive group

of armed civilians would come out of their homes brandishing spears and machetes73 as this

was not an ordinary course of action but an extraordinary situation that arose during the course

67 Moot Proposition ¶ 26.

68 Moot Proposition ¶ 20.
69 Moot Proposition ¶ 11.
70 Art. 28, Rome Statute.
71 Ibid.
72 Bemba (ICC-01/05-01/08); Decision Pursuant to Article 61 (7)(a) and (b) of the Rome Statute on the charges of

the Prosecutor against Jean- Pierre Bemba Gombo, 15 June 2009, ¶. 429.
73 Moot Proposition ¶ 25.

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of a peaceful military operation. Therefore, he had no knowledge of the existing circumstance

that such a situation would occur in the ordinary course of events.

4.2. THE CIVILIANS DIRECTLY TOOK PART IN THE HOSTILITIES.

Participation of civilians in armed conflict is the defining characteristic that determines if a

particular act qualifies as a war crime under Article 8(2)(b)(i) of the Statute. ‘Civilians’ are

defined negatively as all persons who are neither members of the armed forces of a party to

the conflict nor participants in a levée en masse.74 It is a well settled rule that civilians lose the

protection against attacks if they take a direct part in hostilities.75

According to the ICRC Interpretive Guide, to ascertain direct part in hostility the conditions to

be met are [4.2.1] There was a sufficient threshold of harm caused, [4.2.2] No Direct

Causation between the act and harm likely to cause from the act, [4.2.3] There was sufficient

belligerent nexus to cause the required threshold of harm.

4.2.1. THERE WAS A SUFFICIENT THRESHOLD OF HARM CAUSED.

For a specific act to qualify as a direct participation in hostilities, the act must be likely to

adversely affect the military operations or military capacity of a party to an armed conflict or,

alternatively, to inflict death, injury, or destruction on persons or objects protected against

direct attack76. In the present case, the military objective of the Kissakan troops was very clear

from the very beginning i.e. securing the oil access point.77 The act of the villagers represents

sufficient threshold of harm because of the arms which were carrying in order to drive out the

Kissakan army.78

74 AP I Art. 50[1].
75 Art. 51(3), AP I; ICRC, Customary IHL Database https://ihl-databases.icrc.org/customary-ihl/eng/docs/Citation.
76 ICRC, Customary IHL Database https://casebook.icrc.org/glossary/direct-participation-hostilities.
77 Moot Proposition, ¶ 20.
78 Moot Proposition, ¶ 25.

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4.2.2. NO DIRECT CAUSATION BETWEEN THE ACT AND THE HARM LIKELY TO CAUSE FROM THAT

ACT.

For direct causation there must be a direct causal link between the act and the harm likely to

result either from that act, or from a coordinated military operation of which that act constitutes

an integral part79. However, in the instant case their was no causal link between the killing of

the villagers and objective set out by President Garba as well as Lt. Col Diallo and the killing

of 170 men and boys.80

4.2.3. THERE WAS SUFFICIENT BELLIGERENT NEXUS TO CAUSE THE REQUIRED THRESHOLD OF

HARM.

In the present case, there was sufficient Belligerent Nexis designed to directly cause the

required threshold of harm as on 20 April 2021, King Abdu made a public statement stating

that ‘every Momaayo man and boy will defend their country, and the sanctity of the natural

world, above all else’,81 this shows that it was a well-planned strategy that was already pre-

planned and the people of Momaayo were prepared well in advance to face the Kissakan

troops.

4.3. PRESIDENT GARBA IS NOT CRIMINALLY RESPONSIBLE AS A SUPERIOR UNDER ARTICLE 28

OF THE ROME STATUTE.

In the present case, President Garba is not criminally responsible for the armed conflict that

broke out between the Kissakan troops and the people of Momaayo as [4.3.1] President

Garba had no effective control [4.3.2] President Garba took all necessary and reasonable

measures to prevent the conflict.

79ICRC Customary Database https://casebook.icrc.org/glossary/direct-participation-hostilities.

80 Moot Proposition, ¶ 26.
81 Moot Proposition, ¶ 19.

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4.3.1. PRESIDENT GARBA HAD NO EFFECTIVE CONTROL.

The superior’s powers to control and intervene must be real, in order to hold him

accountable.82 The exercise of command must be effective and the superior-subordinate

relationship cannot be derived from the mere fact of belonging to a chain of command: this is

not per se sufficient.83 Trial Chamber II considered that the suspect must have had effective

control ‘at least when the crimes were about to be committed’84. Certain crimes are not

accountable to the commander, who is quite often far removed from the place of the events85

The scuffle that broke out between a few villagers and the Kissakan troops86 was neither in

the knowledge nor in the control of the Kissakan President. President Garba could not possibly

have interpreted the consequences well in advance that an altercation would arise leading to

a conflict between the Kissakan troops and the villagers, and neither could he control the

situation amidst a war.

82 Prosecutor v. Kordic´ and Cˇerkez, IT-95-14/2-T, Judgement, Trial Chamber, 26 Feb. 2001, note 98, ¶. 422.
83 Prosecutor v. Aleksovski, IT-94-14/1-T, Judgement, Trial Chamber, 25 Jun. 1999, ¶s 73 et seq.; Cˇelebic´i

(Trial Chamber Judgement), note 3, ¶s. 354 and 647; Prosecutor v. Kordic´ and Cˇerkez, IT-95-14/2-T,

Judgement, Trial Chamber, 26 Feb. 2001, ¶. 369.

84 Bemba (ICC-01/05-01/08); Decision Pursuant to Article 61 (7)(a) and (b) of the Rome Statute on the charges of

the Prosecutor against Jean- Pierre Bemba Gombo, 15 June 2009, ¶. 419.
85 See Werle, Principles of International Criminal Law (2005) 375 et seq.
86 Moot Problem, ¶ 25.

36.
MEMORANDUM ON BEHALF OF THE DEFENCE
 21st HENRY DUNANT MEMORIAL MOOT COURT COMPETITION, 2022

4.3.2. PRESIDENT GARBA TOOK ALL NECESSARY AND REASONABLE MEASURES TO PREVENT

THE CONFLICT.

The identification of what constitutes necessary and reasonable measures is to be made in

light of what is within the ‘material possibility’ of the commander, bearing in mind ‘the superior’s

degree of effective control over his forces at the time his duty arises.87

In the instant case, President Garba did everything under his effective control to prevent the

armed conflict from the very beginning by directing the Kissakan troops to secure the oil

access point peacefully.88 He had no hostile objectives and the armed conflict was a result of

a military operation gone wrong, had the villagers not involved themselves in a scuffle there

would have been no attack.

Therefore, on the basis of the above-stated factual analysis, President Azizi Garba cannot be

held responsible for committing the war crime of attacking the civilian population of Momaayo.

87 Blasˇkic (IT-95-14-A) Judgement, 29 July 2004, ¶.395, Bemba (ICC-01/05-01/08); Decision Pursuant to Article

61 (7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean- Pierre Bemba Gombo, 15

June 2009, ¶. 443.

88 Moot Problem, ¶ 20.

37.
MEMORANDUM ON BEHALF OF THE DEFENCE
 21st HENRY DUNANT MEMORIAL MOOT COURT COMPETITION, 2022

PRAYER

Wherefore in light of the questions presented, arguments advanced and authorities cited, the

defence respectfully requests this court to declare that:

1. President Garba does not meet the threshold of the War Crime and charges should

not be confirmed of War Crime under Article

2. President Garba does not meet the threshold of the War Crime and Charges should

not be confirmed of War Crime under Article

3. President Garba does not meet the threshold of the War Crime and charges should

not be confirmed of War Crime under Article 8(2)(b)(iii) of the Rome Statute for killing

of the 5 UN personnel

4. President Garba does not meet the threshold of the War Crime and charges should

not be confirmed of War Crime under Article 8(2)(a)(i) of the Rome Statute for killing

of the civilians

All of which is respectfully submitted

On behalf of the Counsels of the Defendant.

38.
MEMORANDUM ON BEHALF OF THE DEFENCE