HCMULaw Student Journal of Legal Science _ Special Issue

CONTENT

HCMULAW MOOT COURT COMPETITION 2015

MOOT PROBLEM ....................................................................... 7

Nguyn Th c Tm

MEMORIAL FOR THE DEFENDANT .................................... .14

Phan V Khnh Vy ng Hong Nhn


V T Hoa Ho L Khi Nguyn


Trn Th Ngc H Nguyn Ngc Ngn

MEMORIAL FOR THE PROSECUTOR .................................. .33

Nguyn Thc Anh Hunh M Linh

MEMORIAL FOR THE PROSECUTOR ................................... 40

V T Hoa Ho L Khi Nguyn


ng Nguyn Tr Thnh Nguyn Chu Tn

THE 2ND NATIONAL MOOT COURT

COMPETITION 2014

MOOT PROBLEM ..................................................................... 59

International Committee of the Red Cross (ICRC)


L Ngc Bo Trang Trn Bch Ngc



THE 13TH INTERNATIONAL MOOT COURT

COMPETITION 2015

MOOT PROBLEM ..................................................................... 93

International Committee of the Red Cross (ICRC)

MEMORIAL FOR THE DEFENDANT .................................. .103


MEMORIAL FOR THE PROSECUTOR ................................ .112


APPROACHING A MOOT PROBLEM ................................. .121

Kelisiana Thynne Fork Yow Leong

Teerapat Asavasungsidhi

INTERVIEW WITH MEMORIALS JUDGES ........................ 131

No. 12

*

EDITORIAL BOARD

1. Nguyn Th Nh Nh

2. Hong Bch Nga

3. L Th Thu Hin

4. Nguyn Minh Trang

5. Nguyn Hong Nam

6. Trng Vn Quyn

7. Hunh Th Bo Trn

ADVISORY BOARD

Cao V Minh Faculty of

Administrative Law;

L Vit Sn Faculty of

Administrative Law;

Trn Thanh Tho Faculty of

Criminal Law;

Mai Th Lm Faculty of

Administrative Law;

Trn Th Thu H Faculty of

Administrative Law;

Nguyn Th Ngc Lan

Faculty of Commercial Law;

V Hng T Faculty of

Administrative Law;

Nguyn Ngc Hng Phng

Faculty of Civil Law;

V Hng t Faculty of

International Law.

- 3-

PREFACE

As the International Humanitarian Law Moot Court Competition - Vietnam

National Round 2015 is heating up, the Editorial Board has made the decision to

present all articles related to the Moot Court Competitions in this months edition. In

this issue, the best memorials of the HCMC University of Laws students will be

introduced, namely the 2014 National Competitions best memorials, the 2015

Regional Competitions memorials and the 2015 HCMULaw Moot Court

Competitions six best memorials; especially, an article written by the Legal Advisors

of the International Committee of the Red Cross (ICRC) about skills approaching a

Moot Problem, which is specifically contributed to this special issue, will also be

included.

We hope to provide our readers with an overview of the Moot Court Competitions

which greatly helps you understand and master legal skills and experiences as mooting

activities are considered the very first steps of practical approach to the participants

studies.

Sincerely,

Editorial Board.

HO CHI MINH CITY UNIVERSITY OF LAW

MOOT COURT COMPETITION 2015

HO CHI MINH CITY, 23rd 25th MAY 2015

Sinh vien va Khoa hoc phap ly so 12

- 7 -

PROSECUTOR v. MR. THOMAS BEMTO

before the International Criminal Court at the Hague

Author of the Moot Problem

NGUYN TH C TM

INSTRUCTIONS

1. The hearing takes place pursuant to

Article 61 of the Rome Statute

(confirmation of charges). At this stage, the

Prosecutor has to support each charge

with sufficient evidence to establish

substantial grounds to believe that the

person committed the crime charged.

2. The case is entirely fictional. Teams

should confine themselves to the facts

supplied. Neither the Prosecution nor the

Defense may introduce new facts. The

Moot Problem includes all the facts

supported by the evidence that has been

presented before the Court. Teams may

nonetheless draw reasonable inferences

from the evidence produced. They may

also question the credibility or weight of

the evidence.

3. Teams should not hand anything to

judges unless asked to by a judge.

4. The problem is not intended to raise

questions of procedure before the ICC.

Procedural questions should be ignored.

5. The problem is not intended to raise

questions relating to the jurisdiction of the

ICC. The jurisdiction of the ICC should be

assumed. Counsel may in this instance

address issues regarding the admissibility

of the case under Article 17 of the Rome

Statute if relevant.

6. Applicable law: In accordance with

Article 21 of the Rome Statute, the Court

shall apply:

a) In the first place, the Rome Statute,

Elements of Crimes and its Rules of

Procedure and Evidence;

b) In the second place, where

appropriate, applicable treaties and the

principles and rules of international law,

including the established principles of the

international law of armed conflict;

c) Failing that, general principles of

law derived by the Court from national

laws of legal systems of the world

including, as appropriate, the national laws

of States that would normally exercise

jurisdiction over the crime, provided that

those principles are not inconsistent with

this Statute and with international law and

internationally recognized norms and

standards.


- 8 -

The Court may apply principles and the

rules of law as interpreted in its previous

decisions.

THE CASE

Background

1. The Federal Republic of Utopia

(FRU) once consisted of two republics,

namely Nordland and Sudland. Nordland is

located to the north of Sudland. In 1980,

the FRU disintegrated with the two FRU

constituent republics becoming

independent States. The capital of

Nordland is Nordville and that of Sudland

is Sudville.

2. The population in Sudland is mainly

composed of two ethnic groups with

different languages and religions. The

Sudlandians, which make up 75% of the

population, and ethnic Nordlandians. The

majority of the latter community lives in

Crimania, which is located in the northern

part of Sudland bordering Nordland. Until

2010, Crimania was under Sudland control,

although it enjoyed complete autonomy in

managing its internal affairs. The

Sudlandian central government was in

charge of its defense and foreign affairs.

3. Sudland is blessed with vast natural

resources such as oil and minerals. It had

been one of the most developed regions of

the FRU well before its independence.

Between 2002 and 2010, Sudland was

ruled by a military government led by

General George Belisaris and General

Thomas Bemto, with General Belisaris

acting as the countrys President. During

this period, General Bemto chaired the

powerful Crisis Military Commission,

which acted as the de facto government of

the country. General Bemto also acted as

Commander-in-chief of the Peoples Army

of Sudland (PAS) and the Sudlandian

police. Since 1990, Sudland adopted a new

policy which prompted the growth of a

successful high-tech industry and led to

unprecedented economic growth in recent

years.

4. However, Crimania, where ethnic

Nordlandians constitute nearly 90% of the

population, is generally lagging behind in

terms of development. The situation in

Crimania is blamed partly on its remote

location, but also because of governmental

policies. The Sudlandian government has

long accorded preferential treatment to

ethnic Sudlandians and enterprises in

various sectors. The rate of higher

education in Crimania has been the lowest

compared to other regions. Ethnic

Nordlandians felt marginalized and

resentment towards the Sudlandian central

government.

5. Nordland has a homogenous

population. Nordlandians speak the same

language and share similar cultural

practices with their fellow Nordlandians in

Crimania. Therefore, since its


- 9 -

independence, Nordland has been

contesting Sudland sovereignty over

Crimania. President Andrew of Nordland

was elected in 2006. Benefiting from a

large and young population, labor-intensive

industries in Nordland have grown rapidly.

Many Nordlandians also started doing

business in neighboring countries such as

Sudland. Although Nordland is not as

wealthy as Sudland, it is regarded as an

emerging economic power.

Operation Shield

6. In January 2010, Nordland was struck

by a political crisis which led to large-scale

civil unrests against the Andrew

government. In order to divert the

populations resentment towards the

government, President Andrew ordered the

Nordland Armed Forces (NAF) to take

control of Crimania. On 12th January 2010,

the NAF invaded Crimania and quickly

gained control of Cappa, the capital city of

Crimania, with no armed resistance.

7. On 15th January 2010, the NAF

obtained surrender from the Governor of

Crimania. A Military Administration was

established to govern Crimania under the

supervision of the NAF. On the same day,

General Belisaris vividly condemned

Nordlands act of aggression and seized

the United Nations Security Council. The

Sudlandian ambassador and the diplomatic

staff in Nordville were immediately called

back to Sudland. On the following day, the

Sudlandian government severed all

diplomatic relations with Nordland.

8. On 22nd March 2010, General

Belisaris approved Operation Shield,

which was suggested by the Crisis Military

Commission. It aimed at regaining control

of Cappa. General Bemto was in charge of

the operation. General Belisaris, who was

running for election, instructed General

Bemto that We have to win this war

quickly. Crimania is either a gain or a pain

for the election campaign.

9. In an internal meeting of the Crisis

Military Commission, there was a general

agreement that recapturing Cappa was the

utmost priority. It was decided that artillery

attacks and air strikes would be used to

shock, disorient, disrupt the

Nordlandians, before undertaking the

takeover of the city.

10. On 27th March 2010, General Bemto

ordered the PAS to engage in a vigorous

attack with artillery and air support. On 27th

and 28th March 2010, hundreds of

projectiles were fired into Cappa.

According to local media news channels,

there seemed to be bombs exploding all

over the city. With the support of the air

strikes and artillery shelling, the main force

of the PAS took control of the western part

of Cappa. The rest of the city remained

under the control of the NAF.


- 10 -

City hall of Cappas takeover

11. The PAS forces eventually gained

control over Cappa on 1st April 2010.

However, the PAS faced with strong

resistance from the local Nordlandians

community.

12. Jeanne Blanche, a 50-year-old

Professor of Political Science at the

University of Cappa, was an outspoken

supporter of the incorporation of Crimania

to Nordland. Since 2007, she had made

several speeches prompting Nordlandians

to defend Crimania to the last man. She

was also one of the leaders of the Occupy

Cappa, a civil disobedience campaign

against the Sudlandian government.

13. On 4th April 2010, the Occupy

Cappa protesters occupied the city hall of

Cappa. General Bemto issued a public

announcement to protesters to clear the hall

within two hours: If by 6 p.m. the

lawlessness doesnt cease, we shall be

forced to use all means to bring order.

Nevertheless, the riot police encountered

violent resistance from the protesters.

According to the Sudland State-owned

newspaper Bevestia, opposition activists

armed with bats and iron rods allegedly

beat two policemen to death. They also

used improvised weapons such as axes and

hammers.

14. Following the warning from General

Bemto for all women and children to leave

the city hall, police advanced on thousands

of protesters with guns, a water cannon and

an armored personnel carrier. Tents

housing protesters were burned. Police

justified their actions by stating they were

conducting operations in an anti-terror

campaign against individuals who had

clearly armed themselves.

15. Later at night, it was reported that

police had broken through the protesters

barricades on the eastern side of the city

hall. Protesters threw fireworks and petrol

bombs, and lit fires to block off police. The

building was then occupied by police

forces, and the 3rd floor was set on fire. The

fire then spread to the 4th floor, with people

trapped inside; firefighters then arrived to

help. Four protesters were killed by police

when storming the building, as reported by

a Nordlandian journalist via Twitter. The

staff in the city hall later confirmed there

were no deaths due to the fire, and the

building was evacuated.

16. The spokesman of General Belisaris

stated that calling further for armed

conflict is a great crime. General Bemto

also stated in a press conference that

Organizers of mass protests will be held

accountable. We will demand the heaviest

punishment both for those who revved

people up to take part in todays action and

for those who organized and controlled

them.


- 11 -

17. In the early morning of 5th April

2010, the wounded were sent to the Cappa

Hospital. Bevestia reported that 65 activists

were killed and 180 injured. Among the

Sudlandian police, 7 were killed and 20

injured, 3 of them in serious condition.

18. The Nordville Daily Express, a

famous newspaper in Nordland,

subsequently published a series of

interviews with some of the protesters. One

of them, Susan Aung, said that the

Sudlandian police were shooting

indiscriminately at innocent civilians. She

claimed that she was holding a banner and

peacefully protesting with others, when

bullets came at their direction and one of

the protesters was shot dead right in front

of her. A priest from Sudland said bullets

were flying around and at some points he

could no longer tell whether they were

from the police or the protesters.

Treatment in the Bergen Prison

19. At the end of April 2010, ten

students of Professor Blanche were arrested

by the Sudlandian police while distributing

leaflets in public places. She was herself

arrested on 1st May 2010 after the

declaration of a state of emergency.

20. Professor Blanche and her students

were detained in the Bergen Prison, one of

the most controversial prisons controlled

by the Sudlandian police. Ever since her

first day in detention, Professor Blanche

had been protesting her arrest and

advocating freedom of speech. On 13th

May 2010, Professor Blanche embarked on

a hunger strike, only sipping water from

time to time.

21. The news of her hunger strike soon

got through to the major media in Nordland

and Sudland. President Andrew termed

Blanche as a national hero and awarded

her a medal for her extraordinary valor.

In the meantime, other detainees started to

join the hunger strike. By 17th May 2010,

16 detainees were on strike. Sudlandian

authorities, pushed by the international

attention that the strike was attracting,

pressed General Bemto to solve the issue.

He then appointed Ervine Bric as a warden

to supervise all the operations in the Bergen

Prison. Bric sent a letter to General Bemto,

stating that Something needs to be done.

We started to lose control ever since

Blanche was here.

22. On 24th May 2010, after consultation

with General Bemtos staff, Bric decided to

put Professor Blanche and some of her

students in solitary confinement for a

month. They were denied communication

with others, except medical professionals in

case of emergency.

23. Professor Blanche was finally

released on 2nd July 2010 right before the

closing of Bergen Prison. She then gave an

interview to Global News, an independent

newspaper. Since I left Bergen, I have not


- 12 -

been able to sleep without sleeping pills. It

is terrible, Blanche said, They get what

they want without having to hit me. One

of her students added that there were at

least 4 halls, approximately 12 cells per

hall, and a separate row of solitary cells for

female detainees. The cells measured about

2 square meters, with a ceiling height of

about 4 meters. A light at the top of the cell

(about 40 Watts) was on 24 hours a day.

Each cell has a toilet and a sink inside. The

floor was made of what most prisoners

described as chalk. Prisoners were

generally given a blanket, a pair of slippers,

and a disposable cup. The walls of the cell

were all white. Some prisoners were

granted 20 minutes a day in a caged

outdoor area, but others never saw the open

air except on their way to and from the

Court. After all this time, I would mark

the days on the wall. On the fifteenth day,

they threw my clothes into my cell and

drove me out. I saw sky. I told the sky that

I appreciated it now, he concluded his

story.

Referral to the International Criminal

Court

24. At the end of 2010, the Belisaris

government was discredited and eventually

had to step down. Nordland and Sudland

reached a ceasefire agreement under the

auspices of the United Nations. Following

the election of a new government, General

Bemto was placed under house arrest for

suspected crimes committed against the

people in Crimania. In May 2011,

Nordland and Sudland agreed to jointly

refer the situation between 1st January and

31st December 2010 of Crimania to the

International Criminal Court. However, the

status of Crimania has not yet been

definitively agreed upon.

25. The Pre-trial Chamber now holds a

hearing to confirm the following charges

on which the Prosecutor intends to seek

trial. The hearing is held in the presence of

the Prosecutor and Mr. Thomas Bemto, as

well as his counsel.

Count One

Article 8(2)(b)(i) and Article 25(3)(a) of

the Rome Statute

Regarding the conduct against the

protesters occupying the city hall of Cappa,

Mr. Thomas Bemto is criminally

responsible for committing, as an

individual, jointly with another or through

another person, the war crime of

intentionally directing attacks against the

civilian population as such or against

individual civilians not taking direct part in

hostilities;

Count Two

Article 8(2)(a)(ii) and Article 28(a) of

the Rome Statute

Regarding the treatment of detainees in

the Bergen Prison, Mr. Thomas Bemto, as


- 13 -

a military commander, is criminally

responsible for the war crime of torture or

inhuman treatment of persons protected

under the provisions of the relevant Geneva

Convention.

NOTE

At all material times, the following

treaties were in force for Nordland and

Sudland:

United Nations Charter

1949 Geneva Conventions and their

1977 Additional Protocols I & II

1966 International Covenant on Civil

and Political Rights

1966 International Covenant on

Economic, Social and Cultural Rights

1969 Vienna Convention on the Law

of Treaties

1984 United Nations Convention

against Torture

1998 Statute of the International

Criminal Court


- 14 -


MEMORIAL FOR THE DEFENDANT

PHAN V KHNH VY

NG HONG NHN

1. Nature of the armed conflict

In Lubanga case, it was held that an IAC

takes place between two or more States.1 The

armed conflict taking place from 12th January

2010 to 1st April 2010 was no doubt of

international character as the two parties to the

conflict, Nordland and Sudland, are two

different States. Nevertheless, the part after 1st

April when protesters in Crimania fought

against Sudland police should be considered an

internal conflict as the group of protesters in

Crimania had the same nationality with that of

Sudland police force.

The internal armed conflict breaking out

within a territory can turn into an IAC if

participants in an internal armed conflict act on

behalf of other State to the armed conflict.2

Nonetheless, in order to qualify as de facto of

other State, it is necessary to prove the ability

of specific instructions concerning the

commission of that particular act had been

issued by that State to the individual or group.3

In the present matter, the Nordlandians

protesters in Crimania fought against Sudland

1 ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-803 (14 May

2007), para. 209. 2 Id. at 209. 3 ICTY, Prosecutor v. Tadi, IT-94-1-A (15 July 1999), para.

137.

military after Sudland gained control over

Cappa.4 There was no evidence to assume that

their act was instructed by the Nordland

government. Nor did Nordland have a role in

organising, coordinating or planning the

military actions of the military group, in

addition to financing, training and equipping or

providing operational support to that group,

which is a condition for a group to be regarded

as de facto of a State.5 Hence, the nature of

armed conflict when the alleged crime took

place was national.

2. Applicable law

International Humanitarian Law ("IHL")

applies in IAC. United Nations Convention

against Torture and International Covenant on

Civil and Political Rights ("ICCPR") are also

applied.

3. Substantive crime

Even if the international nature of the armed

conflict could be proven, there is not

substantial ground to believe that Bemto

committed the charged war crime.

A. Count 1: Mr. Thomas Bemto

("Bemto") is not criminally responsible for

committing, as an individual, jointly with

4 Moot Problem, para. 11. 5 Id. at. 137.


- 15 -

another or through another person, the war

crime of intentionally directing attacks

against the civilian population as such or

against individual civilians not taking direct

part in hostilities under Article 8(2)(b)(i)

and Article 25(3)(a).

Pursuant to The Elements of Crimes

("EoC"), the war crime of intentionally

directing attacks against the civilian population

as such or against individual civilians not

taking direct part in hostilities requires five

elements which Mr. Bemto failed to meet the

second and the third.

3.1. The civilian population did take

direct part in the hostilities

IHL describes the term hostilities as the

resort to means and methods of injuring the

enemy.6

The object of the attack was the protesters

occupied the city hall of Cappa a civilian

population under Article 50(1) and (2) AP I.

However, according to Article 51(3) AP I,

civilians are protected against attacks unless

and for such time they take direct part in

hostilities. The notion of direct participation in

hostilities includes three cumulative criteria,7

which were met by the act of the protesters,

namely: (1) The harm resulted must attain a

certain threshold (2) direct causal link between

the act and the harm must be proven (3) the act

was specifically designed to support a party to

the conflict and to the detriment of another.8

6 ICRC, Interpretive Guidance on the notion of Direct

Participation in Hostilities under International Humanitarian Law, Nils Melzer, p. 57.

7 Id. p. 46. 8 Id. p. 46.

a. Certain threshold of harm.

This threshold can be reached by causing

harm of a specifically military nature. In this

context, military harm should be interpreted as

encompassing essentially any consequence

adversely affecting the military operations or

military capacity of a party to the conflict.9

Here, in order to prevent the PAS forces to

actually gain control over Cappa, the local

Nordlandians resisted by doing campaign

against the Sundlandian government. On 4th

April 2010, the Occupy Cappa protesters

occupied the city hall,10 causing a riot which

the Sudlandian police had to step in. It was

transparent that due to the strong resistance, the

protesters had adversely affected the aim of

Operation Shield that is regaining control

over Cappa.11

b. Causal link

Direct participation in hostilities implies a

direct causal relationship between the activity

engaged in and the harm done to the enemy

when and where the activity takes place.12

Direct causation should be understood as

meaning that the harm in question must be

brought about in one causal step.13

Herein, the protesters' violence resistance

directly resulted in 7 dead, 20 injured, 3 of

them in serious condition;14 the building was in

9 Id. p. 47. 10 Moot Problem, para. 13, line 1. 11 Moot Problem, para. 8, line 2. 12 Yves Sandoz (ed.), Commentary on the Additional Protocols

of 8 June 1977 to the Geneva Conventions of 12 August 1949, Martinus Nijhoff Publishers, 1987, para. 1679.

13 ICRC, Interpretive Guidance on the notion of Direct Participation in Hostilities under International Humanitarian Law, Nils Melzer, p. 53.

14 Moot Problem, para. 17, lines 2-3.


- 16 -

fire,15 consequently preventing the PAS from

truly recapturing Cappa.

c. Belligerent nexus

Belligerent nexus relates to the objective

purpose of the act. The purpose is expressed in

the design of the act or operation and does not

depend on the mindset of every participating

individual.16

When the Nordland Armed Forces

("NAF") invaded Crimania on 12th January

2010, they met no armed resistance from the

people in Crimania and quickly gained control

over Cappa.17 Only 3 days after the invasion of

NAF, Governor of Crimania surrendered and a

Military Administrative was immediately


supervision of the NAF.18

However, things were different when the

PAS forces took back their control over Cappa.

They faced strong resistance from the local

Nordlandians community, including Occupy

Cappa protesters. Amongst the leaders of the

Occupy Cappa, there was Professor Blanche,

an outspoken supporter of the incorporation of

Crimania to Nordland. Also, in the clash with

the Sudlandian police, protesters allegedly beat

two policemen to death, threw fireworks and

petrol bombs,19 lit fires to block off police.20

Hence, there is sufficient evidence to believe

that their act of violent resistance was to

15 Moot Problem, para. 15, line 4. 16 ICRC, Interpretive Guidance on the notion of Direct


17 Moot Problem, para. 6, lines 4-5. 18 Moot Problem, para. 7, lines 1-3. 19 Moot Problem, para. 13, lines 5-6. 20 Moot Problem, para. 15, lines 2-3.

support Nordland and to detriment of

Sudlandian.

Since the three criteria of taking direct part

in hostilities were met as demonstrated, the

protesters clearly taking direct part in

hostilities, thus making them temporary,

activity-based loss of protection.21 The second

element of this crime was thus not satisfied.

3.2. The perpetrator did not intend the

civilian population to be the object of the

attack

The attack would also be lawful as they were

not indiscriminate in nature under Article 51(4)

and (5) AP I and all feasible precautions had

been taken under Article 57(2)(a).

a. Article 51(4) describes attacks that

are indiscriminate in nature as:

(a) those which are not directed at a specific

military objective; (b) those which employ a

method or means of combat which cannot be

directed at a specific military objective; or (c)

those which employ a method or means of

combat the effects of which cannot be limited

as required by this Protocol;

The act of the police was to carry out

Operation Shield with the purpose of

regaining control over Crimania. Therefore,

they had to stop the riot, clear the hall of Cappa

and ultimately, take over Cappa the capital of

Crimania. The police used guns, water cannon

and armored personnel carrier;22 these weapons

21 ICRC, Interpretive Guidance on the notion of Direct


22 Moot Problem, para. 14, lines 2 3.


- 17 -

were in nature capable of distinguishing

civilian and military targets.23

b. Furthermore, under Article 57(2),

Mr. Thomas Bemto, as a General who decided

upon an attack, had already taken all feasible

precautions to prevent erroneous or arbitrary

targeting.

Under Article 57(2)(a), Mr. Bemto as a

General who in charge of the Operation

Shield has to:

i. Verify that the objective is military

objective under Article 52(2) and is not

prohibited by AP I to attack.

The city hall of Cappa is the office of the

Crimania government, in order to regain

control over Cappa, taking over the City hall

would definitely offer military advantage.24

ii. Take all feasible precaution in the

choice of means and methods of attack

to minimize incidental loss of civilians'

lives and injuries.

The police was using guns, water cannon

and armored personnel carrier, these were

weapons chosen in order to avoid or minimize

collateral casualties. The time of the attack had

also been taken into consideration.25 The attack

was to be carried out after work hours (after 6

p.m26).

iii. Refrain from deciding to launch any

attack which may be expected to

23 ICI, Legality of the threat or use of nuclear weapons,

Advisory Opinion, 8 July 1996, para. 78. 24 AP I, Article 52(2). 25 Jean-Franois Quguiner, Precautions under the Law

Governing the Conduct of Hostilities, International Review of the Red Cross, Vol. 88, No. 864, December 2006, p. 800.

26 Moot Problem, para. 13, line 3.

cause incidental loss, which would be

excessive in relation to the concrete

and direct military advantage

anticipated;

Using guns, water cannon and armored

personnel carrier, it is apparent that the loss

likely to occur was expected to be smaller than

the advantage anticipated. There was loss

occurring as the protesters reacted

aggressively, not following the advance

warning.

Also, under Article 57(2)(b), if

circumstances do not permit, Mr. Bemto must

give an effective advance and within

reasonable time.27 In this case, the

announcement was issued openly, within a

reasonable time two hours, clearly adding the

fact that the police would use all means to

bring order if by 6 p.m. the riot will not cease.

Therefore Mr. Bemto fulfilled his duty to give

advance warning. The third element of this

crime was thus not satisfied.

In sum, Mr. Bemto could not be held

criminally liable for the war crime of attacking

civilians under Article 8(2)(b)(i) given that

second and the third elements of the war crime

are not met.

3.3. Alternatively, even if all the

aforementioned elements of alleged crime

were fulfilled, Mr. Bemto could not be held

individually criminal responsible for ordering

the commission of the crime under Article

25(3)(b)

27 Jean-Franois Quguiner, Precautions under the Law

Governing the Conduct of Hostilities, International Review of the Red Cross, Vol. 88, No. 864, December 2006, p. 807-08.


- 18 -

Article 25(3)(a) put criminal responsibility

on the person who: (i) physically carries out all

elements of the offence (commission of the

crime as an individual); (ii) has, together with

others, control over the offence by reason of

the essential tasks assigned to him

(commission of the crime jointly with others);

(iii) has control over the will of those who

carry out the objective elements of the offence

(commission of the crime through another

person).

a. Bemto himself did not participate in

the attack as a physical perpetrator.

As presented by the fact, Bemto did not

physically participate in the conflict, he thus

cannot be held liable as an individual.

b. There was a lack of plan and

agreement between Bemto and others.

It has been emphasized that commission of

the crime jointly with others must contain a

plan or an agreement between more than one

person.28 Herein, though the operation was

carried out to gain control over Cappa, there

was no agreement made in advance between

Mr. Bemto and others that civilians would be

also the object of the attack in case they joined

the combat. In fact, the involvement of the

protesters in Crimania was beyond Sudland

Government's anticipation.

c. Bemto did not intend the crime to

take place.

When ordering the protesters in Cappa to

clear the hall, although Bemto said he would

28 ICC, Prosecutor v. Katanga, ICC-01/04-01/07 (30

September 2008), para. 522.

use all means to bring order, he could not have

anticipated things would escalate to the extent

of civilians' lives. In fact, all means intended by

Bemto were capable of distinguishing between

civilians and combatants, indicating that he did

not have intention of targeting civilian

population not taking direct part in hostilities.

B. Count 2: The EoC requires six or five

elements in order for the suspect's offenses

to qualify as war crimes of torture or

inhuman treatment respectively.

Nonetheless, the evidence available was not

sufficient to support the charge against Mr.

Bemto.

3.4. The prisoners who were allegedly

tortured or inhumanely treated were not

protected under Article 4 of the fourth

Geneva Convention

It could be argued that those protesters were

protected under the Article 4 of the fourth GC.

However, the law requires that such protection

status can only be granted to a person if he

finds himself in the hands of a Party to the

confect or Occupying Power of which they are

not nationals".

Here, all the protesters shared the same

nationality with the armed force of the other

party, meaning that they were all nationals of

Sudland. Therefore, those persons were not

protected persons under Article 4 of the fourth

GC.

Although in Tadi case the Tribunal had held

that if the perpetrators are acting on behalf of

the State which does not extend diplomatic

protection for the victims and to which the


- 19 -

victims do not owe allegiance, those victims

are granted protection under Article 4.29

Herein, while it was transparent the victims did

not owe allegiance to the Sudland government

as they were fighting against the Sudland

government, there was no indication that the

diplomatic protection had disappeared. In the

very beginning, Sudland government was still

in charge of Crimania's foreign affairs and

defense, including diplomatic protection.30

Hence, the protesters in Crimania were not

protected persons under Article 4 of the fourth

GC.

3.5. The act of inflicting severe physical

or mental pain or suffering upon one or more

persons cannot be proven

"Severe mental pain or suffering" refers to

the presence of "prolonged mental harm", "of

substantial duration", "lasting months or even

years".31 In this case, all the treatments applied

during the detention of the protesters failed to

meet those requirements to qualify as torture or

inhuman treatment.

Though the arrested were put in solitary

confinement, it is widely accepted that solitary

confinement itself is not in inhuman treatment

and may be justified when preventing collusion

between prisoners.32 Herein, the method was

only employed after Professor Blanche and her

29 ICTY, Prosecutor v. Tadi, IT-94-1-A (15 July 1999), para.

164-166. 30 Moot Problem, para. 2, lines 4-6. 31 Hernn Reyes, The Worst Scars are in the Mind:

Psychological Torture, International Review of the Red Cross, Vol. 89, No. 867, September 2007, p. 597.

32 Knut Drmann, Elements of War Crime under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003, p. 68.

students went on and tried to expand the

hunger strike. Hence, it herein should be

treated as a reasonable method applied to halt

the hunger strike, which would have otherwise

caused a much more detrimental harm to the

protesters.

Moreover, solitary confinement is

considered inhuman treatment or torture in

only special situations, one of which is where

prisoners were unable to stand upright or lie

down, where they could be held for several

weeks; being forced to kneel or sit immobilized

for long periods.33 Here, according to the

prisoners, each cell measured 2 meters and the

height of each cell was 4 meters,34 which did

not prevent them from acting normally.

Another is when they are isolated from the

social contact, denied of all kind of

communication. In the present matter, the

detainees were not completely deprived of their

social contact as they were allowed to have

medicals professional care35 and some also had

20 minutes a day outdoor.36

The detention conditions in Bergen Prison

did not amount to torture or inhuman

treatment, even with the use of a light in each

cell which operated 24 hours a day, which are

likely to be considered sleep deprivation.

Although sleep deprivation was held to amount

to inhuman treatment by the European Court,

the previous decision did not state to which

extent the act was considered torture or

33 Report for North Korea, Country Reports on Human Rights

Practices 2004, released by the Bureau of Democracy, Human Rights, and Labor, 28 February 2005.

34 Moot Problem, para. 23, line 6. 35 Moot Problem, para. 23, line 10. 36 Moot Problem, para. 22, line 3.


- 20 -

inhuman treatment. In fact, it was held to

amount to inhuman treatment when combined

with others use of wall-standing, hooding,

subjection to noise, food and drink

deprivation.37 Herein, in the absence of the

above-mentioned, there was no substantial

ground to believe that the act committed

amounted to the war crime of torture or

inhuman treatment.

3.6. The offence was not conducted to

serve prohibited purposes

As stated above, the decision of Bric upon

the treatment to the prisoners in Bergen was a

necessary method to halt the hunger strike,

serving no prohibited purposes pursuant to the

EoC such as extracting information, confession

or coercion, intimidation or other

discrimination.

3.7. The circumstances under which the

alleged war crime under Article 8(2)(a)(ii)

was prosecuted were not associated with the

armed conflict

In Katanga case, the Court held that the

criminal conduct must be "closely related to the

hostilities" in order to qualify as a war crime.38

Herein, Professor Blanche and her students

were arrested when they were distributing

leaflets in public places.39 Also, the decision of

Bric to put those people in solitary confinement

in fact only arose after the hunger strike broke

out in the Bergen Prison. It was conducted with

a view to stopping the hunger strike led by

37 ICTY, The Prosecutor v. Delali, Case No. IT-96-21-T (16

November 1998), para. 463. 38 ICC, Prosecutor v. Lubanga, ICC-01/04-01/06 (29 January

2007), para. 288. 39 Moot Problem, para. 19, lines 1-2.

Professor Blanche, thereby mitigating the

consequences that would otherwise have

happened. Hence, there is no substantial

evidence to prove the presence of a clear nexus

between the offenses and the armed conflict.

3.8. Mode of criminal responsibility

Even all the aforementioned elements could

be proven; Thomas Bento was not criminally

responsible for the crime he was charged as a

commander or other superiors.

a. Actus reus: Bemto did not have

effective control over the Bergen Prison when

the criminal conduct took place.

"Effective control" refers to "the material

ability to prevent or punish criminal

conduct".40 Before the suspected offence took

place, Bemto had already appointed Bric as the

warden to supervise all the operation in Bergen

Prison.41 Thus, it was Bric, not Bemto, who

effectively controlled the staffs in Bergen

Prison where the criminal offence was

conducted.

b. Mens rea.

Article 28(a) requires that the perpetrator

knew or should have known the commission of

the crime. In this case, there is no evidence

inferring his awareness of the force's conduct

in the prison. As presented by the fact, Bric

only sent a letter to Bemto saying that

something needed to be done and giving no

hint that he would commit the torture or

40 ICC, Prosecutor v. Bemba, ICC-01/05-01/08 (15 June 2009),

para. 415. 41 Moot Problem, para. 21, line 6.


- 21 -

inhuman treatment against the detainees.42

Bric's decision to apply solitary confinement

resulted from the discussion with Bemto's staff,

not with Bemto.43 Furthermore, means of

communication available when the offence

took place was letter-exchanging.44 Therefore,

in the absence of reporting and monitoring

system Bemto was by no means put on notice

that the offenses would be committed.45

42 Moot Problem, para. 21, lines 7-8. 43 Moot Problem, para. 22, lines 1-2. 44 Moot Problem, para. 21, lines 7-8 45 ICC, Prosecutor v. Bemba, ICC-01/05-01/08 (15 June 2009),

para. 431.

PRAYER FOR RELIEF

Having proved the lack of constituents of

each crime, The Defendant therefore

respectfully requests The Honorable Court to

deny to confirm the charges against

Mr.Thomas Bemto under Article 8(2)(b)(i) and

8(2)(a)(ii).

Respectfully submitted,

Defendant.


- 22 -



V T HOA HO

L KHI NGUYN

1. Nature of an armed conflict

The armed conflict occurred from 1 April,

2010 was not international in nature.

In Tadc case, the ICTY held that an armed

conflict not of an international character exists

whenever there is a resort to armed violence

between governmental authorities and

organized armed groups.1 Thus, the armed

conflict commenced between Sudlandian

government and the Occupy Cappa

protesters was not of an IAC.

For this reason, the suspected conduct of

torture exercised on detainees was not

associated with an IAC, as well.

2. Applicable law

International Humanitarian Law (IHL),

including Geneva Conventions and Additional

Protocols.

3. Bemto is not individual responsible for the

crime of intentionally direct attack against


hostilities under Article 8(2)(b)(1)

Alternately, even if the nature of the armed

conflict was international in character, Bemto

was not liable for the alleged crime under

Article 8(2)(b)(i).

1 Prosecutor v. Tadic, IT-94-1-AR75, para. 70.

3.1. The attack directed against Occupy

Cappa was not unlawful.

i. The Occupy Cappa protesters arming

themselves lost their protection.

Civilians shall enjoy special protection in

times of armed conflict, unless and for such

time as they take a direct part in hostilities.2

The protesters at first occupied the city hall of

Cappa then mounted violent resistance against

the police force,3 which caused great harm for

the Sudlandian police. For instance, two

policemen were beaten to death;4 activists

armed with improvised weapons such as axes,

hammers, petrol bombs and fireworks, as well

as, lifted fires to block off police.5 From this

point of view, the Occupy Cappa protesters

in no doubt lost their protected status on

account of taking direct part in hostilities.

ii. Alternately, the attack was not

indiscriminate.

Indiscriminate attacks are of a nature to

strike military objectives and civilians without

distinction6 and excessive in relation to the

concrete and direct military advantage

anticipated.7 Indiscriminate attacks may qualify

2 AP I, Art. 51(3). 3 Facts, para. 13. 4 Ibid. 5 Ibid. paras. 13,15. 6 AP I, Art. 51(4). 7 AP I, Art. 51(5).


- 23 -

as attacks directed at civilians8 and

disproportionate attacks may give rise to the

inference that civilians were the object of the

attack.9

In the course of the attack, the Sudlandian

police did properly follow the principle of

distinction set out under IHL. In fact, the police

employed the attack only after evacuating all

women and children from the city hall.10

Besides, the weapons used by the police, such

as guns, a water cannon and an armored

personnel carrier,11 as their nature, can be

directed at specific military targets, as well as,

their impacts can be limited.

Regarding the proportionality, feasible

precautions must be taken to spare and avoid or

minimise incidental loss of life, injury and

damage to civilians.12

General Bemto as well as the Sudlandian

police genuinely took all precautionary

measures. Prior to an attack, a public

announcement was given requesting protesters

to cease the lawlessness,13 as well as, calling

for all women and children to leave the city

hall.14After the warning, at first, the police in

fact resisted the activists without armed force,

which then led to the deaths of two

policemen.15 For this reason, they necessitated

8 Prosecutor v. Galic, supra note 73 at 57. 9 Ibid. at 60. 10 Facts, para. 14. 11 Ibid. 12 AP I, Art. 57(2)(a)(ii); ICRC, Study on Customary International

Humanitarian Law, Rule 15, Rule 18, Rule 19; ICTY, Prosecutor v. Kordi and erkez, IT-95-14/2-A (17 December 2004), para. 686.

13 Facts, para. 13. 14 Ibid. para. 14. 15 Ibid. para. 13.

to resort physical force to bring order.

Moreover, as to minimize the influence of the

attack, the Sudlandian police had firefighters

rescue people trapped in fire, evacuated the

building,16 and thereafter sent wounded to the

hospital to boot.17

In addition, for the reason that the civilians

are not individualized, collateral civilian

damage is not unlawful if the conditions of the

rule of proportionality are respected.18 There

was no creditable source to confirm that the

deaths of innocent people were resulted from

the acts of the police. Nonetheless, even if

these casualties had occurred, such attack

would not have been considered as attacks

against the innocent civilians.

Hence, there was no indiscriminate attack

directed at the civilians.

3.2. Alternately, the Sudlandian police did

not intend to make civilians protesting peacefully

to be object of the attack

It can be concluded that the inference of the

perpetrators intent are given rise from the

discrimination and the lack of precautions.19

As the fact in this case that the attack did not

indiscriminate in nature and all feasible

precautionary measures were taken, the

Sudlandian police had no intention to direct

attacks against the civilians.

3.3 Alternately, even if all the aforesaid

elements of alleged crimes were fulfilled, Bemto is

not guilty on the basis of individual responsibility

under Article 25(3)(a)

16 Ibid. para. 15. 17 Ibid. para. 17. 18 EOC, p. 136; Ohlendorf case. 19 Prosecutor v. Marti, IT-95-11-R61 (8 March 1996), para. 31.


- 24 -

To establish responsibility under Rome

Statute Article 25(3)(a), the perpetrator must

through another person to commit the crime20

and fulfill the mental element of the crime he is

charged with.21 Mens rea requires the

perpetrator: (i) mean to engage in the conduct;

and (ii) was aware that the crime would be

committed in the ordinary course of events.22

Here, Bemto had given advance warning

about the upcoming attack;23 nevertheless, he

issued the order with the intention of settling

down the lawlessness but without the intention

of commission of the crime.

An individual in a position of authority

orders an act or omission with the awareness of

the substantial likelihood that a crime will be

committed in the execution of that order.24 As

the Commander-in-Chief, Bemto gave the

orders without knowing that the execution of

such order would lead to the commission of the

crime since the consequences were beyond

Bemtos military anticipation. As a result, the

existence of the attack was not in Bemtos

knowledge.

Consequently, Bemto does not bear

individually responsible for the crime under

Article 8(2)(b)(i).

4. Bemto is not responsible as the

commander for the war crime of torture under

Article 8(2)(a)(ii), Rome Statute.

20 Ibid. para. 488. 21 Prosecutor v. Ntaganda, at 121. 22 ICC, Art. 30(2). 23 Facts, para. 13. 24 Prosecutor v. Blaki, supra note 71 at 42; ICTR, Prosecutor v.

Karera, ICTR-01-74-A (2 February 2009), para. 211.

4.1. The solitary confinement treatment was

not unlawful.

a. The decision to put those detainees in

solitary confinement was justified.

Solitary confinement is permissible for

reason of prison management.25 Administrative

segregation is used as an internal tool for

isolating prisoners variously defined as

potentially dangerous, disruptive or otherwise

posing a management problem.26

Seeing that professor Blanche and 16

detainees embarked on hunger strike, the

operation in Bergen Prison started to lose

control.27 It can be implied that if there was no

measure taken, more prisons would involve in

the strike and the situation in Bergen would be

worse. For this reason, the decision on

segregation treatment was made, which was

necessary, and thus justified.

b. The solitary confinement conditions in

Bergen Prison did not fall under required minimum

standards.

Detention conditions falling below the

minimum standards, set out by Human rights

instruments, may constitute cruel, inhuman or

degrading treatment or punishment.28

There was no liable ground to establish that

the segregation conditions in Bergen Prison

25 ECiHR, Ensslin, Baader and Raspev.FRG, Decisions and

Reports, vol. 14, p. 64; ECiHR, McFeeley et al. v. UK, Decisions and Reports, vol. 20, p. 44; ECiHR, Kro cher and Mo llerv. Switzerland, Decisions and Reports, vol. 34, p. 24; CM Res DH (83) 15.

26 Knut Drmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, 2003, Cambridge University Press, p. 132, 68

27 Facts, para. 21. 28 Sharon Shalev, A sourcebook on solitary confinement, vol.

4.2, para. 3, lines 4-5.


- 25 -

were below the minimum standards. In fact, all

of the construction features of the solitary units

were indicated by one of the detainees,29 not by

any professional investigation. Thus, it is

doubtfully to state that the confinement

conditions did not meet the requirements set

out by the international instruments.

c. The detainees were not inflicted with

severe physical or mental pain or suffering from

the inhuman treatment.

Torture presupposes an in human

treatment causing very serious and cruel

suffering.30

Prolonged incommunicado detention may

facilitate the perpetration of inhuman treatment

as torture.31 In fact, although they were decided

to place in segregation for a month32, some of

the victims said he was there only for 15

days.33 Hence, the precise time of the victims

detention was not verified, which cannot be

regarded as inhuman treatment.

Segregation of persons in detention is not in

inhuman treatment34 and may, itself, cause

psychological and physiological effects.35

Since there was insufficient evidence to

29 Facts, para. 23. 30 ECtHR, Ireland v. UK, Publications of the European Court of

Human Rights, Series A: Judgments and Decisions, vol. 25, p. 66; 58 ILR 188 at 265; ECtHR, Aksoyv. Turkey, Reports of Judgments and Decisions, 1996-VI, p. 2279.

31 U.N. Commission on Human Rights resolution 2003/32, Torture and other cruel, inhuman or degrading treatment or punishment, April 23, 2003, E/CN.4/2003/L.11/Add.4, para. 14.

32 Facts, para. 22. 33 Ibid. para. 23. 34 Knut Drmann, Elements of War Crimes under the Rome

Statute of the International Criminal Court: Sources and Commentary, 2003, Cambridge University Press, p. 132, 68.

35 Sharon Shalev, A sourcebook on solitary confinement, vol.2.3, p. 15.

establish that solitary confinement treatment in

this case constitute inhuman treatment, the

suffering of professor Blanche36 was just the

actual impact of being in isolation.

Thus, the detainees were not inflicted with

severe physical or mental pain or suffering

from the inhuman treatment.

Consequently, the solitary confinement was

justified.

4.2. Alternately, the detainees were not

protected person of Geneva Conventions.

Art. 4 GC IV defines protected persons as

those who . . . find themselves . . . in the hands

of a Party to the Conflict or Occupying Power

of which they are not nationals. At the time

being arrested, as Crimania still belonged to

Sudland, the victims nationalities were the

same as the captors. Hence, they not owned the

protected status under Geneva Conventions.

4.3. Even if all these aforesaid elements of

alleged crimes were fulfilled, General Bemto

could not be held responsible as a superior for

Brics actions under Article 28(a)

Military superior may be held criminally

responsible for acts of their subordinates.37 To

prove superior responsibility of General

Bemto, following elements must be fulfilled:

(i) a superior subordinate relationship; (ii) the

mental element: knowledge or constructive

knowledge; (iii) The failure to take necessary

and reasonable measures to prevent the crime,

or to punish the perpetrator.38

36 Facts, para. 23. 37 Art. 28, Rome Statute. 38 Art. 28, Rome Statute.


- 26 -

The Defendant does not contest that there is

a superior-subordinate relationship between

General Reed and Warden Wall. However, the

mens rea elements are absent.

Effective control is perceived as material

ability to prevent, repress and submit the

matter to the competent authorities

commission of offence and failure to exercise

such ability of control gives rise to criminal

responsibility.39 These measures are limited to

those within their power.40 However, the

superior is not obliged to do the impossible,41

such as: the superiors duty to prevent only

arises from moment he acquires knowledge or

has reasonable grounds to suspect that crime is

being or is about to be committed.42

The ability could be seen via two elements:

(i) he has general information to put him on

notice of crime committed by subordinates or

of possibility of occurrence of unlawful acts43

and (ii) such available information is sufficient

to justify further inquiry or investigation.44 A

superior can be held criminally responsible

only if some specific information was in fact

available to him that would provide notice of

offences committed by his subordinates.45

39 Id. para. 415. 40 Prosecutor v. Delalic et al. (Judgement) IT-96-21-T, T.Ch. (16

November 1998), para. 395. 41 Prosecutor v. Oric (Judgement) IT-03-68-T, T. Ch. II (30 June

2006), para. 329. 42 Prosecutor v. Strugar (Judgement) IT-01-42-T, T. Ch. II (31

January 2005), para. 373. 43 Id. para. 434. 44 Prosecutor v. Limaj et al. (Judgement) IT-03-66-T, T.Ch. II (30

November 2005), para. 525. 45 Prosecutor v. Delalic et al. (Judgement) IT-96-21-T, T.Ch. (16

November 1998), para. 393.

There is no evidence showing that General

Bemto was noticed of the solitary confinement

treatment used with Professor Blanche and

other detainees. Brics reported only the

situation of detainees hunger strike and told

Bemto hes about to do something. General

Bemto didnt know Brics decision. Even in

the unlikely case that Bemto knew about the

treatment, he did not know or have reason to

know that it would constitute the war crime of

torture or inhuman treatment. Solitary

confinement, in this case, was for keeping

other detainees out of reach of the hunger strike

of Professor Blanche and her students.

Thus, without the mens rea, General Bemto

does not bear the superior responsibility for the

treatment in Bergen Prison.

PRAYER FOR RELIEF

The Defendant respectfully requests the

Honourable Court to declare that there are

substantial grounds to believe that Bemto is not

responsible for the following crimes:

1. The war crime of intentionally directing

attacks against the civilian population as such or

against individual civilians not taking direct part in

hostilities, as the role of commander.

2. The war crime of torture or inhuman

treatment of persons protected under the provisions

of the relevant Geneva Convention, as the role of

commander.


Defendant.


- 27 -



TRN TH NGC H

NGUYN NGC NGN

1. Statement of jurisdiction

Count 1. Regarding the conduct against the

protesters occupying the city hall of Cappa,

Mr. Thomas Bemto is criminally responsible

for committing, as an individual, jointly with

another or through another person, the war

crime of intentionally directing attacks against

the civilian population as such or against


hostilities, under Article 8(2)(b)(i) and Article

25(3)(a) of the Rome Statute.

Count 2. Regarding the treatment of

detainees in the Bergen Prison, Mr. Thomas

Bemto, as a military commander, is criminally

responsible for the war crime of torture or

inhuman treatment of persons protested under

the provisions of the relevant Geneva

Convention, under Article 8(2)(a)(ii) and

Article 28(a) of the Rome Statute.

2. Count one

The Prosecution is unable to establish that

the Defendant conduct satisfies all necessary

elements of the charged crimes under the

Rome Statute and therefore all charges should

be dismissed.

2.1. Whether the object of the attack

was a civilian population as such or


hostilities

a. Whether the protesters who were

attacked at city hall are civilians.

After the PAS forces took control again

over Cappa, they faced with strong resistance

from the local Nordlandian community. Those

protesters came from Occupy Cappa, a civil

disobedience campaign against the Sudlandian

government, which was under command of

some Nordlandian leaders. After the conflict

between Sudland and Nordland, this

organization began to activate forcefully. They

not only occupied Cappas city hall, but also

used weapons such as axes and hammers to

fight against the riot police. According to the

Sudland State-owned newspaper Bevestia,

opposition activists armed with bats and iron

rods allegedly beat two policemen to death.

They resisted their government regardless of

warning from authority. The death of two

policemen indicated that the protesters had

attacked aggressively and uncompromisingly

that made a suspicion of their civilian

character.

Under Article 50(1), Additional Protocol I

(AP I) defines civilians and civilian

population: A civilian is any person who does

not belong to one of the categories of persons


- 28 -

referred to in Article 4(A) (1)(2)(3) and (6) of

the Third Convention and in Article 43 of this

Protocol. In case of doubt whether a person is a

civilian, that person shall be considered to be a

civilian. It means the objects which are in

scope of Article 4(A) (1)(2)(3) and (6) of the

Third Convention and in Article 43 of this

Protocol are neither individual civilians nor

civilian population.

According to Article 4(A)(2) of the Third

Convention, the following is excluded:

"2) Members of other militias and

members of other volunteer corps,

including those of organized resistance

movements, belonging to a Party to the

conflict and operating in or outside their

own territory, even if this territory is

occupied, provided that such militias or

volunteer corps, including such organized

resistance movements, fulfil the following

conditions:

a) that of being commanded by a person

responsible for his subordinates;

b) that of having a fixed distinctive sign

recognizable at a distance;

c) that of carrying arms openly;

d) that of conducting their operations in

accordance with the laws and customs of

war.

Similarly, Article 1 3 of Hague Regulation

1907 also adopted these characters of militias

and volunteer corps, including those characters

mentioned above.1 We should accept that these

signs totally appeared in the action of the

1 Article 1-3, Hague Convention IV of 1907.

protesters, such as having the leaders, arming,

named themselves

From what has been discussed, we can

reach to a conclusion: Occupy Cappa is

belonged to a Party to a conflict under Article

4(A)(2). Thus, the protesters who occupied city

hall are not considered civilians whom are

protected under Article 51 of AP I.2

b. Whether the protesters took directly

part in the hostilities.

Under Article 4(A)(2) of Third Convention,

these protesters were in status of combatants.

This means they totally had the ability to take

directly part in hostilities.3 Indeed, they used

weapons for fighting against Sudlandian

police, causing the death of two policemen.

They also threw fireworks, petrol bombs, and

lit fires to block off police. Those acts

definitely indicated that they had taken directly

part in hostilities. The word "direct" can be

considered acts of war which by their nature or

purpose are likely to cause actual harm to the

personnel and equipment of the enemy armed

forces.4

2.2. Whether the defendant intended the

civilian population as such or individual

civilians not taking direct part in hostilities

According to what have been said, we must

accept that the defendant, Mr. Thomas Bemto,

had the right not to consider the protesters as

civilians and that he was forced into taking

2 Article 51 of Additional Protocol I. 3 Commentary of Article 43, API, [1664]. 4 Commentary of Article of Article AP I [1944] What is the

exact meaning of the term "direct" in the expression "take a direct part in hostilities"?


- 29 -

sufficient methods to fight the insurgency. It is

the activities of the insurgents themselves that

makes this tactic necessary and therefore it is

the insurgents who are responsible for the

result in civilian casualties. Thus, this element

has not been satisfied.

2.3. Whether this conduct took place in

the context of and was associated with an

international armed conflict

In 2007, a group of people was established

with the aim to fight against the Sudlandian

government. This group had the leaders, named

itself Occupy Cappa. These protesters armed

themselves with weapons such as axes and

hammers and other means of warfare like

fireworks, petrol bombs. In fact, ethnic

Nordlandians have felt marginalized and

resentment towards the Sudlandian central

government for a long time which is caused by

many subjective and objective reasons. For

example, because of its remote location or the

rate of higher education in Crimania has been

the lowest compared to other regions.

Nordlandians are at variance with the disparity

in treatment of government to Sudlandians and

enterprises in various sectors. Occupy Cappa

took use of these reasons to attract people to

participate in their resistance movement. It can

be argued that everyone has the right to fight

for their freedom and their self-determination.5

However, in order to have this right, this ethnic

must prove that they have been treated unfair

or be suppressed for a long time. In this case,

there is not enough evidence to indicate that

5 Article 1 of International Covenant on Civil and Political

Rights.

they were seriously treated unfair, limited their

legal rights or freedom. Further, since 1990,

Sudland adopted a new policy which prompted

the growth of a successful high-tech industry

and led to unprecedented economic growth in a

few years. The unequal growth among

industries in different sectors, areas of a young

economy is predictable. It is possible that

enterprises in some various sectors grew faster

and therefore, were received more preferential

treatment from government. Moreover,

Crimanias geographical position was another

element that prevented central government

from developing education or other activities in

this area.

Actually, the occupation of Occupy

Cappa is only a resistance movement which

might be considered as a way to indicate their

disapproval. However, it had become out of

control and caused extensive damage by both

the impatient solution from government and

the other side.

Thus, the conflict between the Sudlandian

central government and the protesters of

Occupy Cappa is neither international armed

conflict nor association with an international

armed conflict, but an internal armed conflict.

In short, the defendant does not contest the

satisfaction of all elements of Rome Statute. He

did direct an attack during the armed conflict.

However, the defendant cannot be criminally

liable for attacking civilians because their

conduct does not satisfy elements 2, 3 and 4 as

established by the Rome Statute.

2. Count two


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2.1. Whether there is a war crime of

torture or inhuman treatment here

a. The definition of torture and other

inhuman treatment.

According to the definition of torture under

Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or

Punishment (CAT), torture is any act that

consists of the intentional infliction of severe

pain or suffering, whether physical or mental,

involving a public official and carried out for a

specific purpose, for example with the aim of

punishing or degrading and humiliating a

person, obtaining from him or a third person

information or a confession.6

Similarly, under Federal Criminal Anti-

Torture Statute, torture means an act

committed by a person acting under the colour

of law specifically intended to inflict severe

physical or mental pain or suffering upon

another person.7 There is a definitely difference

between torture and inhuman treatment, while

torture is completely forbidden, other kind of

inhuman treatment can be take into

consideration and may be argued in certain

circumstances.8 Therefore, the challenge is to

determine which methods are legitimate and

which are illegal, causing pain and suffering

that fall into the category of cruel and

inhuman or degrading treatment or torture.

6 Article Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (CAT). 7 Federal Criminal Anti-Torture Statute, 18 USC, Section

2340: https://www.law.cornell.edu/uscode/text/18/2340 8 International review of Red Cross: The worst scars are in

mind: psychological torture, Hernn Reyers, Volume 89 Number 867 September 2007.

b. Whether solitary confinement

should be considered torture or inhuman

treatment.

It has been stated that it can be difficult to

distinguish torture and inhuman treatment in

general. It is even harder to define

psychological torture. As being concerned,

the definition of torture is firmly based on

severe pain and suffering. The severity of

pain or suffering to qualify as a form of

torture had to be of a high level of intensity.9

With regard to physical suffering, the author of

the memorandum defined severe as having

to rise to a level that would ordinarily be

associated with a sufficiently serious condition

or injury such as death, organ failure or serious

impairment of bodily functions.10

The point here is that the Sudlandian

authorities might use torture seek to narrow the

definition thereof, just focus on physical

severe pain and suffering aspects. And as the

detainees are not assaulted or interrogated,

there is no reason to blame them for causing

serious pain or suffering.

Other than physical torture, the

psychological torture uses non-physical

methods. It means hurting person by not

9 Memorandum from Jay. S. Bybee, Assistant Attorney

General for the Office of Legal Council at the US Department of Justice, to Alberto Gonzales, Counsel to the President (1 August 2002), in Karen Greenberg and Joshua Dratel (eds.), The Torture Papers, Cambridge University Press, Cambridge, 2005, pp. 172218, extracted from International review of Red Cross: The worst scars are in mind: psychological torture, Hernn Reyers, Volume 89 Number 867 September 2007.

10 International review of Red Cross: The worst scars are in mind: psychological torture, Hernn Reyers, Volume 89 Number 867 September 2007.


- 31 -

hurting or touching the body but touching the

mind instead. Solitary confinement, in fact, is

regarded as a typical non-physical method.

However, coming to the next issue, we can see

that this time, the psychological method used

cannot be considered torture, but an

unavoidable solution.

2.2. Whether the treatment to Professor

Blanche and some of her students is torture

or inhuman treatment

a. Whether it is illegal to put

Professor Blanche and her students into

solitary confinement.

Professor Jeans Blanche was one of the

leaders of the Occupy Cappa, she also an

outspoken supporter of the incorporation of

Crimania to Nordland. It acknowledged that

the freedom of Professor Blanche had posed

serious difficulties for the Sudlandian

authorities and understood that they should

have considered it necessary to take

extraordinary security measures to detain her.

At first, the government just wanted to put her

under their control to stop her from leading and

increasing the conflict. However, when she

was kept in ordinary prison, she had caused a

loss of control in the prison by embarking on a

hunger strike which had soon got through the

major media in both Nordland and Sudland,

impacting on other detainees, attracting the

international attention Therefore, solitary

confinement was a last resort and used after

every careful consultation. The reasons given

to justify the decision to her detention in

solitary confinement were her dangerousness,

the need to maintain order and security in the

prison, which since her presence, had been out

of order. Dangerousness here can be defined

as the effect she can cause to other people, as a

statement of General Bemto: We will demand

the heaviest punishment both for those who

revved people up to take part for todays action

and for them who organized and controlled

them. Indeed, based on the effect of Professor

Blanche to Crimania community, in particular

the Occupy Cappa protesters, the Sudlandian

government totally had the right to think that

she might use communications either inside the

prison or on the outside to re-establish contact

with other members of their organization to

spread out the campaign against the

government. It can argued that, even in the

most difficult circumstances, such as the fight

against terrorism and organized crime, the

Convention prohibited in absolute terms torture

and inhuman or degrading treatment or

punishment. However, regarding on what

happened, it is necessary to have an effective

and quickly way to stop the campaign of these

protesters, which had caused intensive loss of

life and property for both the Sudlandian police

and the protesters. Therefore, considering the

purpose of government, the treatment in prison,

it is unavoidable to put Professor Blanche and

some of her students, who organized,

controlled and spread out the conflict into

prison, which can restrict the unnecessary loss.

b. Whether the treatment to Professor

Blanche and her student is torture or inhuman

treatment.


- 32 -

Regarding in particular the impact and the

danger they posed, it had not been

unreasonable for the authorities to consider

that, in order to ensure safety in prison, they

should be subjected to tighter security controls,

involving constant supervision, limitation on

their contact and communication with the

outside world and some form of segregation

from the prison community. The Court could

not accept and argued that there is a violation

of Articles 3 (prohibition of inhuman or

degrading treatment) and 8 (right to respect for

private and family life) of the European

Convention on Human Rights. However, as

being discussed above, it should be accepted

that the government had to restrict the contact

between the detainees and others to stop the

negative impact on others, and the facts that

they were able to access the medical care in

case of emergency.11 As regard the period they

were kept, in one month, the lack of

communication and other activities did not

attain the sufficient threshold of seriousness

required to constitute torture or inhuman

treatment, in violation of Article 3.12 In a short

time, solitary confinement can be chosen as a

mean to awaken the prisoners. Legislation in

some jurisdictions also permit Court to impose

11 Depending on the case and the decision of the Court,

European Court of Human Rights, the cases of Piechowicz v. Poland (application no. 20071/07) and Horych v. Poland (application no. 13621/08) http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-3917185-4525877#{"itemid":["003-3917185-4525877"]}

12 Depending on the case and the decision of the Court, European Court of Human Rights, the cases of calan v. Turkey. http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4703714-5709561#{"itemid":["003-4703714-5709561"]}

period of solitary confinement as a part of

sentence for a certain time.13

PRAYER FOR RELIEF

In light of the legal evidences, the

provisions of the Convention and its Protocols

applied and arguments advanced; and in light

of the studies relating to the issue referred to

this case, the ICC should not exercise

jurisdiction over the accused defendant.

Further, defendants cannot be held for the

criminally liable war crime of attacks against

civilians, or the war crime of torture or

inhuman treatment upon other person.


Defendant.

13 A Sourcebook on Solitary confinement: The decision to

place prisoners and detainees in solitary confinement: Pakistan Penal Code, Act XLV of 1860, p. 25.


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MEMORIAL FOR THE PROSECUTOR

NGUYN THC ANH

HUNH M LINH

1. Admissibility

Under Article 5(1)(c), the International

Criminal Court (ICC) has jurisdiction over

the suspected war crimes. Moreover, the case

against Mr. Thomas Bemto (Bemto) before

the ICC is admissible under Article 14 as

Sudland and Nordland agreed to jointly refer

the situation of Crimania to the ICC.

2. Type of armed conflict, applicable law

and belligerent nexus

2.1. The international armed conflict

(IAC) between Nordland and Sudland

commenced on 12 January 2010

In Lubanga case, the ICC held that an IAC

takes place between two or more States.1

Hence, the armed conflict arising between

Sudland and Nordland is IAC. In Hague

Convention, a territory is considered being

occupied when it is actually placed under the

authority of the hostile army.2 Cappa, the

capital city of Criminia is gained control by the

Nordland Armed Forces (NAF) on 12th

1 ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-803 (14 May

2007), para. 209. 2 International Conference (The Hague), Hague Convention

(IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (The Hague), 18 October 1907, Art. 42.

January 2010;3 on 15th January 2010, the NAF

obtained surrender from the Governor of

Criminia. A Military Administration was


supervision of the NAF.4 International

Humanitarian Law (IHL) applies even if the

said occupation meets with no armed

resistance5 and people are fighting against

colonial domination and alien occupation.6 In

this case, the NAF invaded Criminia with no

armed resistance; the condition of occupation

in Criminia was therefore satisfied for an

Occupying Power. On 27th March 2010,

General Bemto ordered the PAS to engage in a

vigorous attack with artillery and air support.7

When an armed conflict occurred, the territory

will be determined in the whole territory of the

warring States.8 Basing on the determination of

the ICC, the territory in this armed conflict

must be the Criminia and the whole territory of

Sudland.

3 Moot Problem, para. 6, lines 4 - 5 4 Moot Problem, para. 7, lines 1 - 3 5 International Committee of the Red Cross (ICRC), Geneva

Conventions (GCs), 12 August 1949, Common Art.2. 6 ICRC, Protocol Additional to the Geneva Conventions of 12

August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (AP I), 8 June 1977, 1125 UNTS 3, Art. 1. 7Moot Problem, para. 10, lines 1 - 2

8 ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-2842 (14 March 2012), para. 533.


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2.2. Applicable law

IHL applies in IAC,9 excluding Common

Article 3 of the Geneva Conventions and

Additional Protocol II.

2.3. The nexus between the offences

charged and the IAC existed

The nexus existed where the armed conflic

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