Sample Respondent Memorial

19 R

IN THE INTERNATIONAL CRIMINAL COURT

THE HAGUE, NETHERLANDS

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PROSECUTOR

v.

DAVID DABAR

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MEMORIAL FOR THE RESPONDENT

SAN BEDA COLLEGE MANILA

LUIS VOLTAIRE D. FORMILLEZA

LYNDON W. RUTOR

YVETTE MARIE I. SOLA

27-30 SEPTMBER 2011

19 R

IN THE INTERNATIONAL CRIMINAL COURT

THE HAGUE, NETHERLANDS

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PROSECUTOR

v.

DAVID DABAR

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MEMORIAL FOR THE RESPONDENT

27-30 SEPTMBER 2011

MEMORIAL FOR THE RESPONDENT-Preliminaries-

TABLE OF CONTENTS

TABLE OF CONTENTS iINDEX OF AUTHORITIES... iiiSTATEMENTS OF FACTS vSUMMARY OF PLEADINGS... xvPLEADINGS AND AUTHORITIES.. 16I. DAVID DABAR IS NOT LIABLE FOR CRIMES AGAINST HUMANITY OF

FORCIBLE TRANSFER UNDER THE ICC STATUTE ALLEGEDLY COMMITTED BY

NOMAG STUDENTS ALLIANCE (NSA)... 16A. Transfer Was Done In Accordance With Law And Voluntary............................ 16-17

A.1 The transfer of civilian population was voluntary.....A.2 The deportation or transfers of civilians are permissible under

international humanitarian law........................................................................... 17II. DAVID DABAR IS NOT LIABLE FOR THE WAR CRIME OF TAKING

HOSTAGE UNDER THE ICC STATUTE ALLEGEDLY COMMITED BY

THE NOMAG STUDENTS ALLIANCE (NSA).................................................. 18A. The Deprivation of Liberty of The Lemis is Lawful and there is no

Conditional threat imposed for their provisional release.................................... 18A.1 The deprivation of liberty of the Lemi population is lawful.......................... 18

A.2 The most essential element of additional threat to gain an advantage or

gain a concession is not present...........................................................................18-19

III. DAVID DABAR IS NOT LIABLE FOR THE WAR CRIME OF

WILLFULL KILLING UNDER THE ICC STATUTE ALLEGEDLY

COMMITED BY THE NOMAGI DEMOCRATIC RESISTANCE ALLIANCE

(NDRA) ..................................................................................................................... 19A. The killings were legitimate................................................................................. 19

A.1 The status of the persons killed classifies them as valid military

objective...............................................................................................................

.19

A.2 The attacks and killing were not indiscriminate............................................20

IV. DAVID DABAR INCURS NO CRIMINAL LIABILITY................................... 20

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A. Direct liability cannot lie as mens rea is absent...................................................

20A.1 Dabar did not personally commit the crimes as charged..............................

21A.2 Assuming arguendo, Dabar has planned the attack, he had no criminal

intent....................................................................................................................

.21

Superior responsibility is inapplicable 22B.1 There was no superior-subordinate

relationship...........................................22

B.2 There was no effective control .....................................................................23

B.3 Knowledge was not proven...........................................................................23

B. Dabar has taken the necessary means to prevent.................................................

24CONCLUSION AND PRAYER.......................................................................................

24

INDEX OF AUTHORITIES

Statutes

Rome Statute of the International Criminal Court, 1998, 2187 U.N.T.S. 90

[hereinafter Statute]

16

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International Cases and Arbitral Decisions

Prosecutor v Blaskic (2004), Case No. IT-95-14-T (ICTY Appeal Chamber)

[hereinafter Blaskic]

18,19

Prosecutor v Brdjanin (2004) CASE No. IT-95-14-A (ICTY Trial Chamber)

[hereinafter Brdjanin]

20,22,23

Prosecutor v Delalic, Mucic (2001) Case No. IT-96-21 (Appeal Chamber

paras. 162, 171 [hereinafter Delalic, Mucic]

23

Prosecutor v Delalic (1998) Case No. IT-96-21-T (Trial Chamber) [hereinafter

Delalic]

22,23,24

Prosecutor v Jokic(2004) (ICTY Trial Chamber) [hereinafter Jokic-Miodrag] 20,23

Prosecutor v Kordic and Cerkez (2004), Case No. IT-95-14/2-A (Trial

Chamber) [hereinafter Kordic and Cerkez]

18,19,20,22

Prosecutor v Limaj (2005) Case No. IT-03-66-T (ICTY Trial Chamber)

[hereinafter Limaj]

20

Prosecutor v Simic, Tadic and Zaric (20003) Case No. IT-95-9-T (ICTY Trial

Chamber) [hereinafter Simic, Tadic, Zaric]

16,

Treaties and International Documents

1949 Fourth Geneva Convention Convention (IV) Relative to the Protection

of Civilian Persons in Time of War, 12 August 1959, 75 U.N.T.S.

[hereinafter Geneva Convention]

17,

Additional Protocol I to the Geneva Convention of 12 August 1949, and

Relating to the Protection of Victims of International Armed Conflicts,

19,20

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1977, 1125 [hereinafter Protocol I]

United Nations Documents

United Nations Doc. PCNICC/2000/1/Add.2(2000) [hereinafter Elements] 1

Books

Hall, Crimes Against Humanity [hereinafter Hall] 16

STATEMENT OF FACTS

The Republic of Vanilia

Vanilia is a young state that obtained independence in 1959. It is bordered by the Maxicum Sea

on the east with a coastline of more than 500 kilometres, by the Republic of Berryland to the

south and west and the Republic of Mingolia to the north. As federal state it is divided into three

provinces and has a population of around 20 million people. It is populated by the Lemi people

who are mostly Protestant and Swarohi speaking (56% of population) and by the Nomag people

who are Catholic and Nomagi speaking (32% of population).

After independence it adopted a political system of representative democracy with a multiparty

system. The People's United Democratic Party (PUDP) has formed the successive governments

since independence. The PUDP is mainly supported by the Lemis. Its main political agenda is

said to be the protection and promotion of Lemi rights and well-being. The Federal Democratic

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Party (FDP) has been the main opposition party and openly claims to protect the interests of the

Nomags.

The Nomagi People

The Nomag people, though spread across the country, are in the majority in the province of

Losovo, which borders Berryland. Many believe that the Nomags came to Vanilia from

Berryland during the colonial period as indentured labourers. Others think that Losovo is in fact

the original land of the Nomags, and that they later spread from Losovo into Berryland. It was

made part of Vanilia only because of the existing colonial administrative divisions at the time of

independence.

Roots of Discontentment

There is a general resentment among Nomags that they have been neglected by the successive

governments. It is claimed that they are not proportionately represented in the political decision-

making which has resulted in the neglect of their welfare and economic development. Some

organisations also claim that the Nomags are under-represented in the main sectors of economy

and discriminated against in the public service. Ever since independence, some Nomag groups

have been spearheading the idea of an independent Losovo state.

The Birth of Resistance and Nationalist movements

Three months after general elections of January 2008 where PUDP once gain obtained majority

of the seats in the federal and legislative assembly, the FDP won an overwhelming majority in

the provincial elections held at the Losovo Provincial Assembly. The disenchantment with the

successive federal governments and failure to achieve fair representation of Nomag interest led

to the creation of radicalized faction of the DP. This was responded to with the creation of

nationalist anti-resistance movement. The NDRA Nomag Democratic Resistance Alliance was

formed with the avowed objective to obtain the independence of Losovo. The NDRA is led by

David Dabar- an elected member of the Losovo Provincial Assembly and in charge of law and

order affairs in the Losovo Executive Council.

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Advent of Losovo Secessionism

On 15 October 2008 in the capital City of Lesovo, Rizoba the Vanilian Independence Day

celebration saw a demonstration of around 500 people belonging to the NDRA hoisting a

"Losovo national flag", while desecrating and burning the Vanilia national flag. On the same

night, five people belonging to the NDRA were arrested in their residences and charged under

the Respect for National Symbols Act. These arrests led to street protests in different parts of

Vanilia.

After the incidents of October 15, 2008 a group called the Vanilia Patriotic Forum (VPF) was

formed in Rizoba. Its main objective was to protect the sovereignty and political integrity of

Vanilia and support the federal government to the greatest possible extent. It had a central

secretariat in the predominantly Lemi-inhabited are of 'Pleasant Gardens in Rizoba.

Growing Tensions

On 30 November 2008, the NDRA declared that it was breaking away from the FDP.

Notwithstanding David Dabars membership in the Losovo Executive Council, he was

proclaimed the chief of the NDRA under whose leadership the NDRA would campaign for the

achievement of the independence of Losovo.

Come the next month on 5 December 2008, students from the Rizoba University formed the

Nomag Student Alliance (NSA) and announced that they would establish co-ordination with

other groups fighting for Nomags' rights.

On 8 December 2008, the NSA issued a call for the indefinite boycott of classes in the

University. During the following weeks, factory workers, journalists and university teachers also

formed pro-independence associations. In Losovo, the situation became tenser with regular

protests and demonstrations during the month of January 2009.

Independence Alliance

The NDRA convened a meeting with the NSA and other pro-independence associations on

February 2, 2008. The participants agreed that they should all coordinate their work and

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activities for the independence of Losovo and seek the necessary national and international

support. The final declaration indicated that all associations would take guidance from the

NDRA and its leader David Dabar.

Violence in Losovo

On 3 February 2009, there were several attacks on the Lemis of Losovo in five towns near the

provincial border. This led to the loss of 126 lives with 239 people being injured. The media

reported that the increased level of violence in the last months made it difficult to identify who

was responsible for the attacks. It was strongly believed by the government of Vanilia, and the

most important newspapers, including those based in Losovo, that the NSA was behind these

attacks.

Media reports that NDRA aimed towards the elimination of Lemi Influence in Losovo was

based on an NDRA internal document. The government confirmed the explusion of Lemis from

Losovo. Thereafter the government set up temporary camps for displaced families. The NDRA

and the NSA did not confirm any involvement in said expulsion. However they claim that the

Lemis who had left Losovo are welcome to return provided that the independence had already

been achieved, and that they swore allegiance to the new state of Losovo.

The Pleasant Garden Incident

On the 10 February 2009, the report of a potential increase in violence in Rizoba was

broadcasted. On the same night, David Dabar went around the Pleasant Gardens area along with

NDRA members and erected roadblocks to control the movement of residents. He wanted to

check every movement through the locality and to protect the Lemis from growing violence. The

NDRA cadres said that they would not allow anyone to enter the area. On the same night, NSA

members went into Pleasant Gardens. The NSA members, divided into groups, went to the

residences and forcibly brought out more than 400 Lemi residents into the area's main square.

Thereafter the residents were divided into two groups: men in one group and women and

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children in another. They were told that they would be brought to the border to ensure their

safety in Rizoba. After an hour, several trucks left the area without any hindrances. The trucks

were granted unimpeded passage out of Pleasant Gardens through NDRA roadblocks. On 12

February, media reported that the Lemi people from the Pleasant Gardens locality were taken by

the NSA and kept in camps, 60 kilometres away from Rizoba. The camps are said to be at the

highly contested border of Berryland and Vanilia. Responding to criticism, Dabar declared that

the NDRA's aim was secession from Vanilia. There was no intention to target or injure Lemi

civilians. On the contrary, measures had been taken to ensure their protection from the

disorganised violence caused by the federal government's acts.

Vanilians Federal Governments Response

The Prime Minister of Vanilia, Nijimon Yavi, issued a stern warning to those involved in the

displacement of Lemi people and deployed security forces in Losovo with the backup support of

300 army soldiers. In the next few days, it was reported that, across Vanilia, several attacks had

taken place on property of the Vanilian government, as well as on private property. There were

instances of weapon-wielding young men attacking Lemi people, and in different incidents 39

people were killed. In some instances, Lemi people from Losovo were again forced to leave their

residence and flee to other provinces. Several groups claimed responsibility for some of the

attacks.. Vanilian security and intelligence forces arrested a chain of weapons suppliers operating

from Berryland whom they claimed the NDRA was acquiring weapons from.

Birth of a New State

On 28 May 2009, David Dabar convened a press conference and declared that the NDRA would

organise a rally the next day and declare the independence of Losovo. The next day, thousands of

people gathered on the Rizoba University grounds. Dabar greeted the crowds and thanked them

for being supportive of the cause of the liberation of Losovo. He announced that the FDP

government had issued a declaration of independence. Losovo was now an independent

sovereign country. The NDRA was soon to be in control of the entire province. He said that from

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now on, the Losovo administration was going to be in the hands of Nomag and for the interests

of the Nomags. All Nomags in other parts of Vanilia were welcome to settle in Losovo to

participate in the development of the new country. Furthermore, he stressed that non-Nomag

people could remain in Losovo. He enjoined all, including Lemi people, should respect the law

of the country. Wilson Mula, was announced as the leader of the FDP, and announced that he

would be leading the interim government for the next one year, until a new constitution was

drafted and a constitutionally-elected government took over.Berryland recognised Losovo on

June 2, 2009 followed by Mingolia on 4 June.

With regard to international relations, Mula announced that Losovo wished to maintain friendly

relations with all countries and that it would succeed to all multilateral international treaties to

which Vanilia was a party that dealt with human rights and international humanitarian law. With

regard to other treaties, including bilateral treaties, they would be reviewed within the next two

years. The first official act of the new government was to grant by decree Losovo citizenship to

all Lemis residing in the province. Other residents were to be granted citizenship at their request

if they undertook to live in Losovo and swore allegiance to the new State. A new law on

citizenship was soon to be adopted.

Vanilias Stance

On 5 June 2009, the Prime Minister of Vanilia, Nijimon Yavi said that Losovo province was an

integral part of Vanilia and blamed neighbouring countries, in particular Berryland. Supporting

the NDRA and its secessionist stance constituted an unacceptable intrusion in Vanilia's internal

affairs in violation of the UN Charter and would be dealt with in an appropriate manner. In

manifest contradiction with the situation on the ground, he said that Vanilian security forces

were in total control of the situation in Losovo, that they would take into custody the main

leaders of the NDRA soon, and that they would try them in accordance with law. Meanwhile,

NDRA fighters continued to be in direct confrontation with Vanilian forces at the Losovo

borders. The NDRA successfully thwarted the Vanilian security forces' attempts to gain control

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of Losovo territory, let alone to re-take control of Rizoba. The Vanilia government called for

international support and expressed concerns about the security of the Lemi people in Losovo.

Continuing Violence and the VPF Headquarters Incident

On 8 June 2009, a message was circulated among NDRA and NSA members that Vanilian forces

were employing civilians to counter the NDRA control. In the night of 9 June 2009, more than

500 Vanilian forces were attacked when they moved into Losovo, but nonetheless managed to

come within 100 kilometres of Rizoba. Fierce fighting continued through the night resulting in

heavy casualties on both sides.

During the night of 10 June, NDRA took control of the VPF secretariat office. They found

around 150 people, including women and children in the building. The NDRA interrogated them,

and in reply they said that because of the continuing fear of attacks against them, they had taken

refuge in the secretariat's premises to spend the night. After searching the premises however, 16

Vanilia-manufactured weapons were found in one of the rooms located at the back of the

building. The occupants deni knowledge of them. The NDRA fighters then separated the women

and children, and took the men along with them. The next morning, David Dabar declared that

they had successfully thwarted an attempt of Vanilian forces, wearing civilian clothing, taking

shelter in the VPF secretariat to imminently attack, in co-ordination with other forces entering

Losovo, the new government of Losovo.

The next day details of 108 people who were taken into custody by the NDRA during the said

night went in the news. These details were provided by the family members who were there on

that night at the VPF secretariat and all were allegedly confirmed as not belonging to Vanilian

forces. On the same evening VPF members convened a press conference and introduced 12

members who were reported to have escaped from the hands of the NDRA fighters. They

declared that they were ill-treated and subjected to severe beatings. The NDRA issued a

statement that all those who were questioned on the night of 10 June at the VPF secretariat were

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either active supporters of the Vanilian forces, if not members thereof. However, the NDRA

failed to clarify the whereabouts of those who were taken away. On 22 June 2009, newspapers

reported that the human remains of 15 persons were found in a suburban area. They were later

identified as some of those who were taken by the NDRA on 10 June.

After the Dust has Settled

In the last week of June 2009, it was reported by the media that the camps, in which Lemis were

kept since the 10 February 2009, were evacuated and the people were allowed to go. It was

further reported that most had not returned to Rizoba. It was unclear whether they had been

prevented to return or did not wish to return because of the security situation.

On 6 July 2009, the Minota Economic Forum (MEF), a regional organisation working for

economic co-operation in the region, appealed to all parties to declare a ceasefire, and requested

the United Nations Security Council to intervene in the matter. It invited the Vanilian

government and the FDP negotiate a solution to the conflict. The Vanilian government expressed

its willingness and nominated a ten-member delegation. The FDP also expressed its willingness

to send a delegation provided that the issue of secession remained non-negotiable. The FDP

nominated its delegation headed by Mr William Tanatia, the Minister for Foreign Affairs of the

interim government of Losovo.

Both Amnesty International and Human Rights Watch had reported violations of international

humanitarian law by both sides: killings, torture, displacement of civilians, attacks on civilians

and destruction of civilian property. At the instance of several complaints to Office of the

Prosecutor, the prosecutor of the International Criminal Court (ICC) initiated proceedings against

several individuals from both sides of the conflict.

Chronological Statement of Facts

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15 October 1959 Vanilias independence

January 2008 General election held in Vanilia.

August 2008 NDRA was established by FDP to obtain independence

15 October 2008 500 people desecrated and burned the Vanilian national flag. Arrests were made afterwards.

30 November 2008 NDRA broke away from FDP.

5 December 2008 NSA was formed. They announced to establish coordination with other similar groups.

8 December 2008 NSA issued calls for indefinite boycott of classes

January 2009 More and more tense regular protest and demonstrations

2 February 2009 NDRA convened a meeting with NSA and other groups , declaring they would take guidance from the NDRA and its leader Dabar.

3 February 2009 Several attacks on Lemis of Losovo in five towns near the provincial border. 126 dead, 239 injured

10 February 2009 Pro-lemi TV channel reported increased attacks on Lemi Residences.

10 February 2009 (Night time)

Dabar went around pleasant gardens area and ordered for the erection of road blocks. Lemi residents were then forcibly removed and transferred by NSAs.

12 February 2009 Media reported that the Lemi people were transferred and kept in camps 60 kilometers away from Rizoba.

22 May 2009 Camp site was attacked

23 May 2009 Campsite was no more. 156 bodies of security forces were discovered and 53 bodies unidentified.

Attack on lemi people and their property continued

28 May 2009 Dabar convened a press conference and declared that the NDRA would organize a rally the next day and declare

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independence of Losovo

29 may 2009 Gathering in Rizoba university grounds. Dabar announced that the FDP government issued its independence. That it was now and independent sovereign country.

2 June 2009 Berryland recognized Losovo

4 June 2009 Mingolia recognized Losovo

5 June 2009 PM Vanilia, Nijimon Yavi, said that Losovo was an integral part of Vanilia, and blamed the neighboring countries for their unacceptable intrusion in Vanilias internal affairs

8 June 2009 Message circulated among NDRA and NSA members that Vanilian forces were employing civilians to counter the NDRA control

9 June 2009 (night time) More than 500 Vanilian forces tried to infiltrate Losovo. They managed to come within 100 kilometers of Rizoba.

10 June 2009 NDRA fighters found 150 in VPF secretariat office.

11 June 2009 Losovo messenger daily published the details of 108 people captured in the night of 10 June. Confirming these people (108) were not Vanilian forces.

VPF convened a press conference that 12 of their members escaped the hands of the NDRA. *ill-treated and were subjected to severe beating.

22 June 2009 15 human remains were found in the suburban area and were later as some identified to have been those who were taken by the NDRA on 10 June.

Last week of June 2009 Media reports that the camps were evacuated and the people were allowed to go. However most had not returned to Rizoba.

6 July 2009 MEF appealed to all parties to restrain themselves and to declare a cease fire and requested the united nation security council to intervene in the matter. And invited the conflicting parties to send delegations to meet with each other.

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SUMMARY OF PLEADINGS

The Respondent submits that David Dabar, as leader of NDRA and NSA is NOT guilty

of the following crimes under Statute:

I. THE ACTS ALLEGED DO NOT ESTABLISH CRIMES UNDER THE STATUTE

A. David Dabar is not liable for crimes against humanity of forcible transfer.

Transfer was done in accordance with law and voluntary.

B. David Dabar is not liable for the war crime of hostage taking

The Deprivation of Liberty of the Lemis is Lawful and there is no Conditional

threat imposed for provisional release

C. David dabar is not liable for the war crime of willfull killing

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The killings were legitimate because those killed are valid military objectives. The

attacks were not indiscriminate

II. RESPONDENT FURTHER SUBMITS THAT DAVID DABAR IS NOT LIABLE

EITHER INDIVIDUAL OR AS SUPERIOR ON THE FOLLOWING GROUNDS:

A. David Dabar had no criminal intent and did not personally commit the crimes.

B. David Dabar exercised no effective control over his subordinates.

C. The guilt of David Dabar has not been proven beyond reasonable doubt.

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MEMORIAL FOR THE RESPONDENT-Pleadings and Authorities-

PLEADINGS AND AUTHORITIES

The Court was established to address unimaginable atrocities that deeply shock the

conscience of humanity,1 thus only the most serious crimes of concern to the international

community as a whole can give jurisdiction to the court.2 Crimes shall be strictly construed.3

Absence of one element will render the accused innocent.

I. DAVID DABAR IS NOT LIABLE FOR CRIMES AGAINST HUMANITY OF

FORCIBLE TRANSFER UNDER THE ICC STATUTE ALLEGEDLY COMMITTED BY

NOMAG STUDENTS ALLIANCE (NSA)4

B. Transfer Was Done In Accordance With Law And Voluntary.

The displacement of persons is illegal if it is forced,5 i.e. not voluntary and when it occurs

without grounds permitted under international law. 6

A.1 The transfer of civilian population was voluntary.

Considering recent history of international displacement of people, expulsion or

other coercive acts must include the full range of coercive pressures on people to flee

their homes, including, death threats, destruction of their homes, and other acts of

persecution, such as depriving members of a group of employment, denying them access

to schools and forcing them to, wear a symbol of their religious identity.7

1 Rome Statute, preamble, para22 Art. 5(1)(b,c)3 Art. 22(2)4 Elements5 Simic and Tadic and Zaric, Trials Chamber ICTY par. 1256 Ibid7 Hall, Crimes Against Humanity

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The forcible transfer of civilians does not meet the criterion of the extent of force

used by the NSA in gathering a total of 400 Lemis in Losovo (C.10). In some

instances, Lemis from Losovo were forced to leave their residence and flee to other

provinces and this was done voluntarily in light of the escalating violence in Losovo.

(C.11) In fact, there is no force employed in transporting the civilians and they were

well informed of the place where they will be transferred It was done for their own

safety and welfare.(C.10)

A.2 The deportation or transfer of civilians are permissible under international

humanitarian law.

The Fourth Geneva Convention recognizes that forced displacement may be

permitted for two reasons: first, the security of the occupied population; second,

imperative military reasons.8

The deportation took place to ensure the protection of Lemis from growing

disorganized violence; the foremost reason that permits displacement. They were told that

they would be brought to the border until their safety would be ensured in Rizoba. (C.10)

Furthermore, humanitarian organizations, including the International Committee of the

Red Cross (ICRC) were sent to visit the camps to ensure the safety and welfare of the

displaced population. (C.11)

8 Article 49(2) Fourth Geneva Convention

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II. DAVID DABAR IS NOT LIABLE FOR THE WAR CRIME OF TAKING HOSTAGE

UNDER THE ICC STATUTE ALLEGEDLY COMMITED BY THE NOMAG

STUDENTS ALLIANCE (NSA)

B. The Deprivation of Liberty of the Lemis is Lawful and there is no Conditional

threat imposed for provisional release.

Under Article 2 of the Statute, Hostage-taking is defined as the unlawful deprivation

of freedom from persons, often wantonly and sometimes under threat of death.9 Hostage-

taking as a grave breach of the Geneva Conventions consists of unlawful deprivation of

liberty, including unlawful confinement and the additional element of the issuance of

additional threat.10

A.1 The deprivation of liberty of the Lemi population is lawful.

The taking of Lemi population was not committed wantonly. (C.10) There

was no intention to target or injure Lemi civilians much less were they forced at

the expense of their lives. On the contrary, their transfer was a measure that had

been taken to ensure their protection from the disorganized violence (C.11)

A.2 The most essential element of additional threat to gain an advantage or

gain a concession is not present. 11

The additional element is the issuance of a conditional threat in respect of

the physical and mental well-being of civilians who were detained.12 This

9 Blaskic,(Appeals Chamber) par. 638-63910 Ibid, par. 9811 Ibid, par. 635-63612 Kordic and Cerkez, Trial Chamber

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identifies a threat either to prolong the hostages detention or to put them to

death.13 Such must be intended as a coercive measure to achieve the fulfillment of

a condition.14 There is no such threat that can be deduced from the alleged

incident of hostage taking that took place.(C.10) Hence, there is no coercive

measure to achieve the fulfillment of a condition15. Furthermore, humanitarian

organizations such as the Committee of the Red Cross (ICRC) were invited to

oversee the conditions of these detainees. (C.11)

III. DAVID DABAR IS NOT LIABLE FOR THE WAR CRIME OF WILLFULL

KILLING UNDER THE ICC STATUTE ALLEGEDLY COMMITED BY THE NOMAGI

DEMOCRATIC RESISTANCE ALLIANCE (NDRA)

B. The killings were legitimate.

Attacks shall be limited strictly to military objectives.16 Civilian objects shall not be

the object of attack or reprisals.17

A.1 The status of the persons killed classifies them as valid military objective

The persons killed are deemed to be valid military objectives. The protected status

of objects and population is lost when by their nature, location, purpose or use make an

effective contribution to military action and whose partial destruction, capture or

neutralization, in the circumstances ruling at the time, offers a definite military

advantage. 18

The attack and seizure of the VPF headquarters is necessary for the NDRA to

given a military advantage. Their goal is to capture members of the civilian population

who are fighting for the Vanilian forces. (C.18) Their objective is bolstered by the fact of

13 Kordic and Cerkez, Trials Chamber14 Blaskic, par. 638-915 Ibid16 Chapter III, Art. 52 Protocol I17 Ibid par. 218 Ibid par. 2

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finding Vanilian manufactured weapons within the premises of the VPF headquarters.

(C.19)

A.2 The attacks and killing were not indiscriminate.

In order to ensure respect for and protection of the civilian population and civilian

objects, the Parties to the conflict shall at all times distinguish between the civilian

population and combatants and civilian and military objectives. 19

The NDRA seizing the VPF headquarters took the necessary precaution to

distinguish between the civilians and combatants. They separated the men from the

women and children and took only the former to be interrogated vis--vis the weapons

found within their custody.(C.20) Had their goal been to indiscriminately attack and kill,

they could have easily done so.

IV. DAVID DABAR INCURS NO CRIMINAL LIABILITY

A. Direct liability cannot lie as mens rea is absent

Individual Criminal responsibility attaches to persons who planned, instigated,

ordered, committed or otherwise aided and abetted in the planning, preparation or

execution20, with the intent that the crime be committed,21 either directly or indirectly.22

The mens rea for establishing the responsibility must be that the planning is

coupled with awareness regarded as accepting the crime.23

19 Section 1, Article 48 Additional Protocol I- Geneva Convention20 Jokic Miodrag, 5621 Limaj, 51322 Brdjanin, 26823 Kordic and Cerkez, Appeals 31

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A.1 Dabar did not personally commit the crimes as charged

There is nothing in the compromis that would conclusively indicate much

less show that David Dabar is guilty or has committed any of the violent acts and

atrocities in Rizoba. If there are any acts that could be linked to him these are only

limited to him being the declared leader of the independence movement,(C.5)

ordering the necessary roadblocks to the major city of Losovo,(C.10) and the

occasional press conference appearances he did in response to the developments

in the ongoing armed conflict between the federal government forces and the

secessionists. (C. 14,19)

A.2 Assuming arguendo, Dabar has planned the attack, he had no criminal

intent

The acts imputed to David Dabar belie any criminal intent to produce any

of the results. On the other hand, being the leader of the secessionist and

independence movement- his acts show the necessary candor and tact to at best

prevent and at worst minimize any violent outcomes to civilians and their

property.

His orders of setting up roadblocks and transporting the civilians to camps

are intended to minimize movements and protect the same from the growing

unorganized violence which the Vanilian federal government failed to prevent.

(C.10,11) As the chief of the NDRA and figure head of the independence, the

interim government of the newly found state has all the impetus to take the moral

high ground to abide with all treaties pertaining to human rights and international

humanitarian law. (C.16)

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B. Superior responsibility is inapplicable.

The elements required for responsibility under Article 28 of the Statute are: (i) the

existence of a superior-subordinate relationship; (ii) the superior knew or had reason to

know that the criminal act was about to be or had been committed; and (iii) the superior

failed to take the necessary and reasonable measures to prevent the criminal act or

punish the perpetrator thereof.24

B.1 There was no superior-subordinate relationship

The doctrine of superior responsibility extends to civilian superiors to the extent

that they exercise a degree of control over their subordinates which is similar to that of

military commanders.25 Furthermore, in any circumstance and especially when an

accused is alleged to have been a member of collective bodies with authority shared

among various members, it is appropriate to assess on a case-by-case basis the power or

authority accused, taking into account the cumulative effect of the accuseds various

functions.26

David Dabar was selected as a chief of the NDRA - a political party which had

the goal of promoting the interest and welfare of the Nomagi and their independence.

Notwithstanding the fact of his continuous membership in the Losovo Executive Council,

(C.5) there was no showing that he was in power or the NDRA had acquiesced to his

exercise of power pertaining to a military superior. This is supported by his lack of

capability to control over the rest of the Nomagi population in Rizoba in such a

politically tensed situation. (C.11)

24 Ibid. 839 25 Delalic et al. (Trial Chamber) Par. 28126 Brdjanin(Trials Chamber) par. 277

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B.2 There was no effective control

Effective Control is the material ability to prevent and or punish the

crimes. 27 In determining questions of responsibility it is necessary to look into

the effective exercise of power or control and not to formal titles.28

Such disciplinary power has to be interpreted broadly.29 It cannot be

expected that civilian superiors will have disciplinary power over his subordinates

equivalent to that of military superiors in an analogous command position.30 To

establish effective control it should be that their position in the hierarchy, have

the duty to report whenever crimes are committed and in the light of their

position, the likelihood that those reports will trigger an investigation or initiate

disciplinary or criminal measures is extant.31

While David Dabar is said to be the figurehead of the NDRA and NSA his

powers are limited to mere guidance and influence.(C.7) He neither has the

capability nor the recognized power to punish the acts of the NDRA or that the

latters hierarchy allowed the accused to exercise such effective control.

B.3 Knowledge was not proven.

Dabar has neither actual knowledge nor circumstantial evidence to prove

that he had knowledge and had the means to obtain the relevant information of a

crime and deliberately refrained from doing so.32 Dabar had no reason to know,

27 Ibid. 84028 Delalic, et al., Appeals 19729 ICTY p. 46330 Brdjanin (Trials Chamber )par. 28131 Ibid.32 Jokic Trial, 792

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that information were available to him which would have put him on notice of

offences committed by subordinates.33

C. Dabar has taken the necessary means to prevent.

Dabar cannot be held liable guilty mere allegations and reports, the prosecution

has failed to establish guilt beyond reasonable doubt.

CONCLUSION AND PRAYER

WHEREFORE, the RESPONDENT prays to this Honorable Court to declare and adjudge that

David Dabar NOT GUIILTY of:

1. The crime against HUMANITY OF FORCIBLE TRANSFER OF POPULATION

committed on or about 3 and 12 February 2009

2. The WAR CRIME OF TAKING HOSTAGES committed on or about 12 February 2009

3. The WAR CRIME OF WILLFUL KILLING committed on or about 10 June 2009

Respectfully Submitted,

Counsel for the Respondent

33 Delalic, 241

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