2D Atty. Francesca Lourdes M.

Sega PROSECUTOR v COLONEL CALLEY JONES Memorial for the Respondent January 25, 2014

TEAM 10 MEMORIAL FOR RESPONDENT

TEAM MEMBERS 2D 1. Alvarez, Joseph Christian 2. Ambrosio, Kerr Monsiur 3. Arcano, Lai 4. Bernabe, Evitha 5. Cabochan, Ricardo John 6. Cambri, Maria Gicel 7. Ching, Virnalyn 8. Corpuz, Therese 9. Dimayacyac, Jermaine 10. Diola, Kyra Kae 11. Ecalnea, Maria Cresielda 12. Fernando, Nina 13. Fernandez, Jefferson 14. Gementiza, Sheila 15. Lazol, Patricia Angela 16. Lopez, Enrico 17. Maranan, Ryan Christopher 18. Mamauag, Romeo 19. Mangotara, Sitty Hannan 20. Marzan, Jeffrey 21. Palmera, Raymond 22. Riego, Jake 23. Robles, Plaridel 24. Sepacio, Adonis 25. Sy, Peter 26. Tomarong, Camille Annalyn 27. Turo, Francine 28. Valenzuela, Christine 29. Yebra, Alloysius

SUMMARY OF PLEADINGS The Respondent respectfully submits that Colonel C. Jones is not guilty of the crimes charged herein in seriatim:

I.

Colonel C. Jones is not liable for committing the war crime of violence to life and person, in particular cruel treatment and torture. There is no Command Responsibility on the part of Colonel Jones and he was not aware of the factual circumstances that established the crime.

II.

Colonel C. Jones is not liable for committing the war crime of intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions. The instruction to regulate the ambulances cannot be considered as an indication of intent to directly attack units protected under the Geneva Conventions.

III.

Colonel C. Jones is not liable for the war crime of intentionally launching an attack with the knowledge that such will cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

I. COLONEL JONES IS NOT LIABLE FOR THE WAR CRIME OF VIOLENCE TO LIFE AND PERSON, IN PARTICULAR CRUEL TREATMENT AND TORTURE

A. There is no Command Responsibility on the part of Colonel Jones

The Rome Statute of International Criminal Court provides for two (2) essential requisites before a person in command would be held responsible for the acts of his subordinates under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces: First, he must either know or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.

Second, the military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.1

First, Colonel Jones was not aware of the alleged criminal acts committed by the security forces. The detention facilities were directly under the authority of the KAF while being actually operated by KESA officers. Clearly, KAF and KESA were the ones in charge.

Second, for a superior to be subject to command responsibility the crime must have been committed by his/her subordinate(s) and such crime must have somehow resulted from the superiors failure to fulfill his/her duties.2

In this case, Colonel Jones has no effective control over said security forces. Effective control is defined as the material ability to prevent or punish the commission of the offence.3 These security forces acted out on their own accord in the process of interrogation and detention of prisoners. It was the Katoland president who established the National Crisis Council (NCC) on 15th January. He appointed Colonel C. Jones, who was then Minister of Defence and the Chief of the Armed Forces, as executive Vice-Chairman of the Council. The president assumed the NCC chairmanship. Though he himself is the Chief of the Armed Forces, Colonel Jones is not a military commander of NCC, KAF and KESA. The KAF is an organization handled by the President of Katoland. Thus, Colonel Calley Jones could not be held responsible on the basis of superior responsibility as directed by Article 28 (a) of the ICC Statute. B. The perpetrator was not aware of the factual circumstances that established the crime

The Rome Statute provides that in the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949,
1 2

Article 28 Rome Statute of the International Criminal Court Pechackova, Martina. The Nature of Command Responsibility under International Law, 2 3 elebidi Trial Judgment, para. 378. affirmed in elebidi Appeal Judgment, para. 256

namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture4

For Colonel Jones to be liable for the war crimes of cruel treatment and torture, he must be aware of the factual circumstances that established the commission of such atrocities. One cannot prevent what one does not know; nemo tenetur ad impossible - the law obliges no one to perform an impossibility. An individual's command position may be a significant indicator that he or she knew about the crimes, however, such knowledge may not be presumed on the basis of his or her position alone.5 A superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates. This information need not be such that it by itself was sufficient to compel the conclusion of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the information, or in other words, that it indicated the need for additional investigation in order to ascertain whether offences were being committed or about to be committed by his subordinates. 6 In this case, knowledge of the alleged mistreatments were obtained only after several NGOs reported such incidents. Not even the slightest of information was available to excite Colonel Jones's suspicion regarding the existence of the alleged violations.

C. There is no concrete evidence as to the commission of the alleged commission of outrages upon personal dignity, particular humiliating and degrading treatment. The notion of outrages upon personal dignity is defined in the Elements of Crimes for the International Criminal Court as acts which humiliate, degrade or otherwise violate the dignity of
4 5

Article 8(2)(c)(i) elebidi Judgment, para. 45. 6 Ibid, para. 393

a person to such a degree as to be generally recognized as an outrage upon personal dignity. The Elements of Crimes further specifies that degrading treatment can apply to dead persons and that the victim need not be personally aware of the humiliation.7 Moreover, the notion of degrading treatment has been defined by the European Commission of Human Rights as treatment or punishment that grossly humiliates the victim before others or drives the detainee to act against his/her will or conscience.8

Among the persons arrested and detained under the Emergency Powers Ordinance, three (3) detained women claimed that there had been violations to their rights as detainees and as women. Based on the facts, it cannot be concluded that the detention constituted an outrage upon personal dignity to be punished by the ICC. All measures were taken to ensure that persons detained received fair treatment, as much as it was possible under the circumstances. Given the multiple threats to national security, immediate measures were required. Thus, the acts were just required in relation to the circumstances and security concerns. More importantly, anyone charged with an offence is presumed innocent until proved guilty according to law. 9 Criminal proceedings require evidence establishing beyond reasonable doubt that the accused is responsible for the crimes before a conviction can be entered.10

II. COLONEL C. JONES IS NOT LIABLE FOR THE WAR CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST BUILDINGS, MATERIAL, MEDICAL UNITS AND TRANSPORT, AND PERSONNEL USING THE DISTINCTIVE EMBLEMS OF THE GENEVA CONVENTIONS.

A. Colonel C. Jones did not intend to direct attacks against the medical units and transport using the distinctive emblems of the Geneva Conventions.

Additional Protocol II provides that the protection to which medical units and transports are
7 8

Article 8(2)(b)(xxi) and (c)(ii) of the ICC Statute European Commission of Human Rights, Vol. II, Ch. 32, 1339 9 Article 6(2)(d) of the 1977 Additional Protocol II 10 Ori Appeal Judgment, para. 189

entitled shall not cease unless they are used to commit hostile acts, outside their humanitarian function.11 Incidents involving the use of ambulances and small trucks by militia members trying to leave the town were reported to the central command. In one instance, firing came from an ambulance trying to bypass a control post and two soldiers were killed. These transports were being used outside their humanitarian function and already for the militia forces advantages. The issuance then of an instruction regulating the use of the ambulance cannot be considered as an indication of an intent to direct attacks against them, but is the responsibility of Colonel Jones in making sure that the same were being used only for their intended purposes. After the recent attacks carried through the use of medical vehicles carrying makeshift emblems, the searches and stoppage of medical transports were necessary to ensure the security of KAF. It was found that the two victims of the instruction were DNA sympathizersthus, a possibility of having relationship with DNA could not be ignored. Given the multiple threats to national security, the new instruction balanced the public right of health and military necessity. Article 33 of the ICC statute provides that criminal responsibility of a perpetrator pursuant to an order of a Government or of a superior, whether military or civilian, shall be relieved provided that the following conditions are met: the person was legally obliged to obey the orders in question; the person did not know that the order was unlawful; and the order was not manifestly unlawful.12 Consequently, the elements of the crime provided by Article 8(2)(e)(ii) of the ICC Statute were not fully met. There was neither actual attack nor intention to attack the protected persons and objects. Hence, Colonel Jones cannot be criminally responsible.

B. The medical units and transport were not using the distinctive emblems of the Geneva Conventions.

Some ambulances displaying makeshift red cross emblems, were found to be transporting armed men and ammunition. The ambulances were being used by the militia men to escape the detection of the military forces. In times of armed conflict, the emblem may be used as a
11 12

Additional Protocol II, Article 11(2) Art 33 (1) of the ICC Statute

protective device as the visible sign of the protection conferred by the Geneva Conventions and their Additional Protocols on medical personnel and medical units and transports. The emblem may also be used as an indicative device showing that a person or an object is linked to a Red Cross institution.13 The issuance of the instruction to regulate ambulances cannot be deemed to be a direct attack against the medical units and transports. The death tolls arising out of the search were unintended and incidental to the legitimate orders arising from a military necessity. In fact, misuse of the emblem as protective device in wartime is strictly regulated. Anyone who, willfully and without entitlement, has used the red cross or red crescent emblem or a distinctive signal, or any other sign or signal which constitutes an imitation thereof or which might lead to confusion, shall be punished by imprisonment.14 Furthermore, the Geneva Conventions Act of 1957 provides that no person shall use the emblem without authorization from the Minister of Defence.15 The significance of the emblem in armed conflicts cannot be overemphasized.

III. COLONEL JONES IS NOT RESPONSIBLE FOR THE CYBER ATTACK IN BARGO POWER STATION IN DECEMBER 2010. A. Contribution to the commission of such a crime by a group of persons acting with a common purpose.

Under the Individual Criminal Responsibility of the Rome Statute, it required that such a crime be committed or attempted by a group of persons.
16

It provides, that A person shall be

criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group,
13 14 15

31-08-1996 Article, International Review of the Red Cross, No. 313, Article 2

31-08-1996 Article, International Review of the Red Cross, No. 313, Article 11 Geneva Conventions Act 1957, Section 15 16 ICC, Mbarushimana Decision on Confirmation of Charges, par.271.

where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime;

In the case at hand, clearly, there is no sufficient proof which may indisputably show that Colonel Jones had any relevant knowledge about said crime, even more so had he any intent to commit such crime with an organized group with the aim of furthering any of its criminal activities or purposes. As it may be noted, neither public investigations nor other forms of inquiry were done in order to support the commentators presumptions. The mere strategic placement of the tanks and long range artillery in the hills overlooking Mesto river near Mestos main source of electric power, as provided by the facts of the case, does not constitute clear and convincing evidence of Colonel Jones knowledge or intent of the attempt nor commission of the said group crime per se. In fact, as explained by Colonel Jones himself, such positioning of their tanks and long-range artillery near Mestos main source of electric power was only due to the immediate necessity at that time to regain control over West Drankonia, most especially Mesto, which was its capital. Additionally, the facts also clearly showed that Colonel Jones neither executed an attack nor created a criminal plan in relation with the destruction of their main electric source. Finally, even assuming Katoland is thus responsible for such attacks, it must then be the KESA, rather than Colonel Jones, who should be liable. The KESA was, after all, in charge of cyber activities and, as shown by the facts given, Jones has no effective control over it. The prosecutions lack of sufficient evidence with regard to Colonel Jones intent and knowledge to attempt or commit such a crime was negated by the fact that the positioning of such Katoni forces were done not to tamper with the electrical powers of their enemies and by the fact that he did not act with a group as provided by the statute. B. Intentionally launching an attack causing incidental loss in the life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to concrete and direct overall military advantage anticipated (Article 8(2)(b)(iv) of the ICC Statute)

Relevant provisions of said Article states that, For the purpose of this Statute, "war crimes" means: (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; In general, the essential elements of said crime includes: a) That the perpetrator launches an attack knowing it would cause death, injury or damage clearly excessive to the advantage anticipated and b) That the perpetrator is aware of factual circumstances that established the existence of an armed conflict and acts in the contexts of such international armed conflict. On the first hand, it may be argued that cyber-attack cannot actually be familiarized with the term attack as used in the context of armed conflict. In international humanitarian law, attack refers to a particular category of military operations. Article 49(1) of the 1977 Additional Protocol I to the 1949 Geneva Convention defines attacks as acts of violence against the adversary, whether in offence or in defence.17 In the case involved, the facts stated showed that an unidentified and untraced virus caused damage to the general power system. However, no military operation or combat action involving parties to the conflict took place. With this in mind, it is therefore clear that no attack was launched. In addition, is also important to bear in mind that the notion stated above only attains relevance once an armed conflict is underway as both the presence of both an attack and an armed conflict constitutes the essential elements of the crime accused to Colonel Jones in the case at bar. It must also be noted that absent such a situation, domestic and human rights law, not humanitarian law, governs the activities in question. 18

17

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 49.1, June 8, 1977, 1125 U.N.T.S. 3. 18 Attack as a Term of Art in International Law: The Cyber Operations Context, 4th International Conference on Cyber Conflict, NATO CCD COE Publications, Talinn, (2012), available at http://www.ccdcoe.org/publications/2012proceedings/5_2_Schmitt_AttackAsATermOfArt.pdf.

In this case, according to the given facts, no armed conflict actually existed between FRB and Katoland in the first place when the so-called cyber-attack was launched. Moreover, the Head of KESA, Katoland and President Stark, who were supposedly involved in the accused crime, do not belong to armed forces. In line with such facts, it was clear that there was the absence of the essential elements attack and armed conflict, thus the war crime under Article 8(2)(b)(iv) of the ICC Statute, again, cannot be satisfied and pursued against Jones. C. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities There are five elements to constitute the war crime of attacking civilians under the Rome Statute. In the case at bar however, three of which were unsatisfied. As earlier discussed, there was no attack and the element of intent on the part of Colonel Jones was missing. Finally, the last unsatisfied element was that of the attack made on civilians. The course of action taken by Colonel Jones in strategically placing the Katoni forces and weaponry was motivated purely by his desire and the immediate necessity to gain control over West Drakonia and not to particularly and directly attack civilians. It is undisputed that civilian protection ceases when it is unavoidable, especially when military objectives are prioritized. Their positioning did not necessarily mean that Colonel Jones actually wanted to involve civilians as he obviously had other military objectives in mind. 19 For Colonel Jones, the Bargo station, being the supplier of electricity to an FRB military base, was the most strategic location to position his fleet due to the definite military advantage it offered. Thus, despite the unavoidable damage to civilians this positioning might have caused, Colonel James cannot be held liable under the accused crime because the attack did not actually target these civilians per se. Lastly, it must be noted that the cyber-attack was only a solitary occurrence. An attack directed

19

ICTY, Zoran Kupreskic Trial Judgment, paras.522-523.

against civilian population requires multiplicity of commission of crimes against humanity. 20 If the attack is not widespread, such fact is sufficient to exclude isolated or random acts.21 As previously stated, the death, injuries and damages caused were merely incidental and not intentional, much less its primary purpose. Hence, the attack cannot be considered a crime against humanity, much less directed against civilian population.

PRAYER Based from the aforementioned arguments, we pray that Colonel Calley Jones be acquitted from all the criminal charges that had been filed against him before the International Criminal Court at Hague.

20 21

Prosecutor v. Akayesu, Judgment, September 2, 1998, para. 579 Prosecutor v. Tadic, ICTY Trial Chamber, par. 646