Defense Updated Facts

3Defense

Prosecutor vs. Mr. Tony Gusman

Before the International Criminal Court at The Hague

October 2014

TABLE OF CONTENTS

TABLE OF CONTENTS......................................................................................................ii

INDEX OF AUTHORITIES................................................................................................iv

STATEMENTS OF FACTS...............................................................................................vii

SUMMARY OF PLEADINGS.............................................................................................1

PLEADINGS.........................................................................................................................2

NO INTERNATIONAL ARMED CONFLICT EXISTED..................................................2

I. ADMIRAL TONY GUSMAN IS NOT LIABLE FOR THE WAR CRIME OF STARVATION UNDER ARTICLE 8 (B) (XXV) AND ARTICLE 25 (3) (A)..............3

A. There is no deprivation to civilians of objects indispensible to their survival..........................................................................................................................3

B. There is no intention to starve civilians as a method of warfare..............5

C. No individual criminal liability exist under Article 25 (3) (a) of the Rome Statute. 7

II. ADMIRAL TONY GUSMAN IS NOT LIABLE OF THE WAR CRIME OF ATTACKING CIVILIANS UNDER ARTICLE 8 (B) (I) AND ARTICLE 28 (A).........7

A. The attack was of military necessity............................................................8

B. The alleged attacks did not target civilians.................................................9

C. The element of “intent” is missing.............................................................10

D. Gusman is not responsible under Article 28(a)........................................11

III. Admiral Tony Gusman is not liable for the war crime of causing widespread, long-term and severe damage to the natural environment under Article 8 (b) (iv) and Article 25 (3) (a).

.........................................................................................................................................12

A. Military advantage is great........................................................................12

B. Environmental damage is not clearly excessive........................................13

C. The mental element is not present.............................................................14

Page ii of xiii

D. Gusman is not responsible under Art. 25 (3) (b)......................................15

PRAYER FOR RELIEF......................................................................................................17

INDEX OF AUTHORITIES

Treaties

Page iii of xiii

Lieber Code of 1863 8, 10

Protocol additional to the Geneva Convention of 12 August 1949, And relating

to the protection of victims of international Armed conflicts (Protocol I) of 8

June 1977

3, 4, 6, 9,

Rome Statute of International Criminal Court 5, 13, 14, 15

United Nation Convention on the Law of the Sea 5

Jurisprudence

Hamdan v Rumsfeld, 548 U.S. 557 (2006) at 6. 2

Haradinajtrial Judgement, Para.60. 2

ICC, Lubanga Trial Judgement, Paras.533,534 2

ICC, Bemba Decision on Confirmation of Charges, Paras.410, 411

ICC Mudacumura decision on the Prosecutor’s application under Art.58

ICTR, Akayesu Judgement para.642

ICTR, Appeals Chamber, Kamuhanda v. The Prosecutor, "Judgement", 19

September 2005, ICTR-99-54AA, para. 75

11

15

16

16

ICTY, Blaskic Trial Judgment, Para.38. 10

ICTY Jokic-Miodrag Trial Judgement, March 18, 2004 7

ICTY, Kordic Judgment, Para. 326-328 8

ICC, Lubanga Trial Judgement, Paras.533,534 2

ICTY, Limaj Trial Judgement, Para.90; 2

ICTY, Simic, Tadic and Zaric,October 17, 2003, Para.135 7

ICTY, Mrksic Trial Judgement, Para.407 2

Page iv of xiii

Prosecutor v Akayesu, Case No. ICTR-96-4-T (Trial Chamber) September 2.

1998

4

Prosecutor v. Delalic (Celebici), Case No. IT-96-21-T, Judgment, para.378 11

Prosecutor v. Delalic, Trial Judgment para.393. 11

Prosecutor v. Tadic (Appeal on Jurisdiction) ICTY (1997) at 70 2

Prosecutor v. Stanislavgalic, Trial Chamber I, IT-98-29-T (5 Dec 2003), para.

58.

14

Prosecutor v. Strugar, Case No.IT-01-42-T (2005), para. 311. 14

Books and Journals

Commentaries on additional protocol I, Kunt Dorman, 3

Elements of Crime, International Criminal Court 3, 5, 6, 7

ICRC Commentary on additional Protocol I 3, 12

ICRC, Commentaries, No. 309, Part III, Sec. V (67) (a). 8

ICRC, Law of Armed Conflict 6

ICTY, Final Report to the Prosecutor by the Committee Established to Review

the NATO Bombing Campaign, para. 50.

12

Mark A. Drumbl, Waging War Against the World: The Need to Move From

War Crimes to Environmental Crimes, 22 FORDHAM INT’L L. J. 122, 128

(1998).

13

The hostages trial, 8 law rep. Trials war criminals 34, 69 (1948) 15

W.J. Fenrick, "Article 8(2)(b)(iv), in: O. Triffterer (ed.), Commentary on the 13Page v of xiii

Rome Statute of the International Criminal Court, 1999, 197.

STATEMENTS OF FACTS

Background

1. Astro, Casa and Bereto border the Middle Sea with Casa located to the northwest of

Astro, facing the east coastline of Bereto.

2. Between 2003 and 2010, Astro was ruled by a military government led by General

Ayana and Admiral Gusman, with Ayana acting as the country’s President.

Page vi of xiii

3. The Yukule Archipelago has been until 2008, under Bereton control and in charge

of its defence and foreign affairs, although it enjoyed complete autonomy in

managing its internal affairs.

4. Yukule Island, the only inhabited part of the Archipelago, populated by 1.5 million,

is also home to large bird populations. Oil and tourism are its main sources of

revenue Foodstuff is mainly imported from nearby countries, but there is a small

agricultural production – mainly fruits and vegetable – on the island.

5. Since the 1980s, Astro has been contesting Bereton sovereignty over the

Archipelago, based on its coast’s proximity and the unlawful annexation of the

Archipelago after the Second World War.

6. On 4th February 2008, the Astron Armed Forces invaded the same and quickly

gained control of Port Solferino.

7. On 10th February 2008, the Governor of the Archipelago voluntarily surrendered;

and a Military Administration was established to govern the Archipelago directly

under the supervision of the Crisis Military Commission. However, a “resistance

militia”, was formed and led by Colonel Spartan from the Bereton army. They used

guerrilla tactics, including the use improvised explosive devices along the main

roads of the island. Bereto was the main source of military supply to the resistance.

8. Facing an increasingly volatile situation in Yukule, on 1st July 2008, the Military

Administration established check-points in key areas of the island. Flow of goods in

and out of Yukule is also controlled while Anti-Astro attacks were still on rise. In

one incident, an ambulance carrying wounded Astron soldiers was hit by roadside

bombs, killing All 5 wounded soldiers; one nurse and one doctor. On several

occasions, fishing boats were caught transporting weapons and explosive devices to

Yukule. Astron vessels also suffered from surprise attacks from Yukulean fishing

boats.

Control measuresPage vii of xiii

9. The Administration announced on 1st September 2008 that all foreign ships

entering a “Maritime Control Zone” had to request prior authorization from the

Military. The activities of local fishermen are also limited to 6 nautical miles

offshore. Only goods exclusively used for civilian purposes would be allowed into

Yukule.

10. Casa Radio reported that through the Astron Ministry of Health’s monitors, the

Administration can estimate the quantity of food products allowed in and distributed

to the different areas of Yukule; its fishermen were allowed to sail at least 12 to 15

nautical miles from shore to catch larger shoals.

11. On the 15th November 2009, Solferino was severely attacked by militia. Dozens of

Astron soldiers and the deputy of the Administration were killed belligerently. A

number of wounded militia members were seeking shelter in the offices of several

humanitarian organizations. The next day, Admiral Gusman announced suspension

of all imports for “security reasons.”

12. The Peppermint Express vehemently accused Astro of deliberately starving

Yukule’s population and appealed for immediate international intervention, which

was soon reprinted by the international media. The next day, their chief editor was

taken for suspicion of colluding with Bereto. Gusman ordered to release the chief

editor and restored the website two days later.

Operation Blue

13. On 15th April 2010, ten NGOs formed a coalition under the name of Free Yukule

Movement (the Movement), led by the Bereton “Sacred Fighters,” a listed terrorist

group chaired by Jonas Borman.

14. The Movement announced that it had chartered a Casa registered vessel, Nirvana, to

deliver “humanitarian packages” to Yukule. Their aim was to send “a message of

alarm to the international community.”

Page viii of xiii

15. The Bereton government expressed support for the alleged “just cause” of the

Movement. Thirty employees of Sphinx, a Bereton private security company

composed of former Bereton, were hired to escort to the convoy.

16. On July 1st, 2010, Nirvana, set sail for Yukule. On board were 200 passengers—

citizens from Astro, Casa, Bereto and ten other countries; human rights activists and

anti-Astron protestors and Sphinx guards.

17. Gusman received intelligence that Nirvana also had a stock of rifles, ammunition

and grenades on board. He appointed Commander Hanson to lead a troop of 60

marines to defend the Maritime Control Zone which “under no circumstances be

compromised.”

18. As Nirvana approached Port Solferino, it was informed that they will be allowed to

enter the controlled maritime zone if they submit their cargo for inspection and

control their passengers. Ignoring repeated warnings, it proceeded headland,

prompting Hanson to issue a final warning via radio that all available measures

would be taken to prevent unlawful entry and finally issued an order to board and

seize Nirvana.

19. A skirmish ensued upon boarding. Sphinx guards and passengers alike violently

resisted the commando, causing Commander Hanson to order his troops to open

fire. An hour lasted before the Sphinx guards surrendered. Casualties were

accounted for; the wounded treated; and everyone on board taken into custody.

20. Astro conducted an inquiry into Operation Blue, where Hanson pleaded self-defense

in ordering to open fire. The marines testified that some of the passengers were

heavily armed, violent, and specially-trained in combat activities, giving them

reason to believe that they were Bereton soldiers; and that most of the activists and

Sphinx guards disposed of their weapons in the water before surrendering.Hanson

was cleared of any responsibility and it was determined that Operation Blue was

lawfully conducted to ensure national security and self-defence.

Page ix of xiii

Oil Spills and Oil Fires

21. Bereton deployed a naval task force on August 25, 2010 and an intensive air

campaign was launched against the Astron forces.

22. Unable to stop the attack, Rear Admiral Freedman consulted with Admiral Gusman

and was instructed to “resort to all resources available to stall the enemy”. On the

24th of September 2010, Freedman ordered Captain Ardent to open the valves of

three oil terminals and for three tankers to discharge oil on the western side of the

island, while Astro's ships moved eastward toward the Astron coast.

23. Bereton naval forces were slowed down considerably, but managed to land on the

poorly defended southern port of Yukule on October 15. The following day,

Gusman commanded Ardent to take “all measures possible to stop the advancement

of the Bereton forces.” Oil storage tanks burst into flames.

24. In January 2011, the UNEP pointed out that the oil spills and fires could have a

major effect on the reef habitation offshore Yukule. Dr. Sulivan from the CMEPA

assured the public that the damage was not devastating, that it may take a few years

for the environment to return to its former state.

25. A study on Yukule's coral reefs conducted by a team from the national science

institutes from Astro, Bereto and Casa concluded that there was no significant

difference found between the species or families of oiled and non-oiled reefs off the

Yukulean coastline.

Referral to the ICC

26. At the end of 2010, Gusman was placed under house arrest while Astro and Bereto

agreed to jointly refer the situation of Yukule to the ICC. There has been no

definitive agreement as to the status of the Archipelago.

27. A hearing was conducted in the presence of the Prosecutor along with Tony

Gusman and his counsel to answer the following charges made against him.

Page x of xiii

Page xi of xiii

SUMMARY OF PLEADINGS

In criminal prosecution, the guilt of the accused must be proven beyond reasonable

doubt. Admiral Tony Gusman is not criminally liable, as he has no control over his

subordinates who committed; ordered and/or contributed to the various atrocities. These

atrocities did not satisfy the elements of the war crimes of starvation as a method of warfare;

attacking civilians; causing of excessive incidental death, injury, or damage during an armed

conflict that violates the international humanitarian law.

Page 1 of 16

PLEADINGS

It is a well-enshrined right of an accused to be presumed innocent unless the contrary

is proved before the Court and by applicable laws.1To overcome this presumption, the onus is

on the prosecution2 by convincing the Court of the guilt of the accused beyond reasonable

doubt.3 It is the contention of the defense that the charges against the accused do not

overcome this presumption.

NO INTERNATIONAL ARMED CONFLICT EXISTED

Tadic provides that a non-international armed conflict is a “protracted armed violence

between governmental forces and organized armed groups”.4 This was confirmed in Hamdan

v. Rumsfield which “reflects the historic view that (international) war could only take place

between states”.5 In this case, Yukule is not a State, hence, there can be no international

conflict between Astro and Yukule.

Moreover, in order for an armed conflict to be classified as non-international,

Lubanga6established two requisites which should be satisfied, to wit: “organization” of the

party and “protraction” of the conflict. There is “organization” when the following factors are

present: the force or group’s internal hierarchy, the command structure and rules, the

insurance of political statements, the military equipment availability, the ability to plan and

carry out military operations, the extent of military involvement.7 On the other hand,

1 Rome Statute, Art 66 (1)

2Ibid. Art 66 (2)

3Ibid. Art 66 (3)

4 Tadic Appeals, 70.

5Hamdan v Rumsfeld, 6.

6 Lubanga,533,534.

7 Limaj,90; Haradinaj,60.Page 2 of 16

“protraction”8 is present when these factors are satisfied: seriousness of attacks, spread over

territory, period of time, extent of government forces, mobilization and the distribution of

weapons.9In this case, both requisites are satisfied.10

I. ADMIRAL TONY GUSMAN IS NOT LIABLE FOR THE WAR CRIME OF

STARVATION UNDER ARTICLE 8 (B) (XXV) AND ARTICLE 25 (3) (A)

A. There is no deprivation to civilians of objects indispensible to their

survival.

1. In war crime of starvation as a method of warfare, the perpetrator must deprive

the civilians of objects indispensible to their survival.11 Starvation means the action exposing

people to famine, i.e. extreme and general scarcity of food.12 There is deprivation when the

supply of some essential commodity, of something necessary for the sustenance of the civilian

population to exist, which includes food stuffs, agricultural areas for the production of food

stuffs, crops, livestock, drinking water instillations and supplies, irrigation works,13 medicine

and blankets14 are insufficient or inadequate.

2. In observance of the principle of proportionality, the civilians must not be

subjected to any attack and shall be protected against consequences arising from military

operations.15 Protection signifies the duty to ward off dangers and prevent inflicting harm or

damages.16

8 Mrksic, 407

9Ibid.para. 538.

10Compromis, Par.7, 8.

11 EC, ICC

12 ICRC, Commentary on Additional Protocol I

13 Art 54 (2), Protocol I

14 Dorman, Commentaries on Additional Protocol I

15Art.51, Additional Protocol IPage 3 of 16

3. In, Akayesu, it is defined that “members of civilian population are people who

are not taking any active part of hostilities, including members of the armed forces who laid

down their arms.”17 Thus they must be distinguished to military objects. While the

importation of goods are being controlled and tightened, Admiral Gusman pronounced that

goods absolutely for the use of civilians are permissible.18 Accordingly, the civilians’ needs

were not deprived and they were distinguished from military objects.

4. Thus, at the onset of Yukule’s surrender to the Astro19 the measures taken by

the Military Administration were imposed to Astro as the Administrator of the Yukule

Archipelago. Due to the unpredictable situation of Yukule the restriction in the importation of

goods was regulated, not prohibited.20 The exercise of restraint on the exchange goods and the

strict rules on import is to stop attacks and abate continued resistance sustained by entry of

weapons.21 The “Maritime Control Zone” imposed by the Military Government was enforced

within the area of 24 nautical miles from the Yukule22 or the contiguous zone of the Island,

where a state may declare a contiguos zone to an area not extending beyond 24 nautical miles

in order to enforce and punish any infringements of its customs laws, imigration laws,

sanitary laws, and fiscal laws.23 The requirement for request for prior authorization from the

Military Administration in entering the contiguous zone can then be categorized as a valid

enforcement of customs laws.24 The creation of checkpoints is also an exercise of municipal

regulation. The checkpoint imposed did not intend to deprive the civilians of resources for

16 Rules of War

17 Akayesu, 582

18 Compromis, Par. 11





23Art. 33 (2), UNCLOS

24 Ibid.Page 4 of 16

survival but only to seize prohibited items.25 The banning of certain fertilizers and pesticide,

which may be used in the production of explosives and the strict scrutiny on imported

construction materials are regulations, as these are products not directly essential to food

sources, but of more significance because it posts as security threat.26 The importation ban for

fertilizers and pesticide was reasonable given that they are being used as materials for

improvised explosive devices. The suspension importation of humanitarian aid is not to deny

the civilian population to their sources of basic essentials but it is construed that the militia

members are seeking help to the supplier of humanitarian aid.27

B. There is no intention to starve civilians as a method of warfare.

1. Starvation as a method of warfare must be intentional.28 Intent is a mental

element29 that will ascertain the purpose to use a particular means to affect such result.

However, although it may not be easy to prove, the existence of intent may be inferred from

relevant facts and the totality of the circumstances.30 The sole purpose of starving the civilian

population must to deny them for their sustenance value.

2. The control measures by Military Administration pointed to impede the supply

of weapon to the Militia, pressure the population to disengage from the unrest 31 and prevent

creation of explosive materials intended to be used against them32 were operative on their part.

The Military Administration suspended the importation of all goods including humanitarian




28 Art. 8 (2)(b)(xxv), Rome Statute

29 EC, ICC

30 EC, ICC

31Compromis, Par. 9

32Compromis, Par. 12Page 5 of 16

aids from the time when Militia attacked the Military Administration which caused the death

of Astron soldiers and deputy of the Administration force.33 This action is brought upon

security reason wherein the wounded members of Militia were seeking upon shelters to

humanitarian organizations34 and to prevent the entry of weapons wherein those objects are in

direct support for the Militia. The members of the Militia is distinguished from protected

person, even if, these Militia members were wounded they are not part of the protected person

for they did not yet cease to the act of hostility. To be protected wounded or sick persons,

whether military or civilian, who because of trauma, disease or other physical or mental

disorder or disability, are in need of medical assistance or care and refrain from any act of

hostility.35 Humanitarian organization as a rule shall not take any side in armed conflict36

hence from the act of Militia resorting shelter to the said organization would help the Militia

from recovering and advance a further attack. Also the act of banning of goods is justified

under Scorched Earth Policy wherein such act is lawful when the civilian objects are used in

direct support of military action of the adverse party.37 Consequently, the administration in its

full capacity perform its duty to protect the need of civilians by resuming the importation of

goods and other essential supplies two months after the said attack,38 with this effort and from

relevant facts the Military administration do not manifest intent to deprive the Yukuleans of

essentials for their survival as a warfare method but rather its action was directed exclusively

for preventive mechanism and security measure.

C. No individual criminal liability exist under Article 25 (3) (a) of the Rome

Statute.

33Compromis, Par. 16


35 Article 8, Additional Protocol I

36 ICRC, Law of Armed Conflict

37 Art. 54, Additional Protocol I

38 Compromis, Par. 16Page 6 of 16

1. In, Jokic – Miodrag, individual criminal responsibility attaches to person who

planned, instigated, ordered, committed or otherwise aided and abetted in planning,

preparation or execution of crime.39 Admiral Guman did not perform any of the above-

mentioned acts that would institute him as liable. The charges attached to Admiral Gusman

using starvation as a method of warfare was not planned for such control measures arise from

certain circumstances, he did not in any means induce anyone or command to deprive the

civilians their basic commodities nor committed a crime for such intent to deprive civilians

are not established to be existing.

II. ADMIRAL TONY GUSMAN IS NOT LIABLE OF THE WAR CRIME OF ATTACKING CIVILIANS UNDER ARTICLE 8 (B) (I) AND ARTICLE 28 (A).

The war crime of attacking civilians requires five elements, but the alleged conducts

failed to meet these requisites.40

A. The attack was of military necessity.

39 Jokic – Miodrag, 56

40 EC, ICC.Page 7 of 16

1. As stated in Kordic and Cerkez, “Prohibited attacks are those launched

deliberately against civilians or civilian objects in the course of an armed conflict and are not

justified by military necessity. They must have caused deaths and/or serious bodily injuries

within the civilian population or extensive damage to civilian objects.41”

2. Military necessity admits of all direct destruction of life or limb of “armed”

enemies, and of other persons whose destruction is incidentally “unavoidable” in the armed

contests of the war.42

3. In this case, the attack was resorted because of military necessity. Under the

San Remo Manual and the laws that it codifies, blockades are a legitimate tool in armed

conflicts. Of particular relevance here, Part III, Section V(67)(a) states that merchant vessels

that attempt to run a blockade can be not just boarded but actually attacked43 (i.e. fired upon):

“Merchant vessels flying the flag of neutral States may not be attacked unless they

are believed on reasonable grounds to be carrying contraband or breaching a

blockade, and after prior warning they intentionally and clearly refuse to stop, or

intentionally and clearly resist visit, search or capture.”

4. A maritime blockade is in effect off the coast of Yukule defined as the area

within 24 nautical miles from the Yukule Island coastline had to request prior authorization

from the Military Administration.44 Such blockade has been imposed, as Yukule is currently

in a state of armed conflict with the Anti-Astro protestors, using guerilla tactics; including

41 Kordic, 326-328.

42 Article15, Lieber Code

43 ICRC, CommentariesPage 8 of 16

laying improvised explosive devices along the main roads of the island.45 And which in

several occasions have perpetuated attacks against civilians.46

5. The above descriptions clearly show that Commander Hanson’s command of

boarding47 Nirvana was in accordance with Customary IHL and is a valid military necessity

since the collateral damage was unavoidable. Furthermore, attacks were not only warranted,

but were even launched only after advanced warnings,48 and were perpetuated only after the

Nirvana proceeded towards Port Solferino, breaching the blockade of a controlled maritime

zone.49

B. The alleged attacks did not target civilians.

1. Military objectives are limited to those objects which by their nature, location,

purpose or use make an effective contribution to military action and whose total or partial

destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite

military advantage.50


45 Compromis, Par. 7.





50 API, Art. 52(2).Page 9 of 16

2. In this case, Nirvana,51 is located 24 nautical miles away from Port Solferino,52

is alleged to have been carrying a stock of weapons, notably rifles, ammunition and

grenades,53 and have breached a blockade, and after prior warning intentionally and clearly

refuse to stop, or intentionally and clearly resist visit, search or capture. Its location, purpose

and use provide an “effective contribution” and attacking it offers a definite military

advantage. Thus, despite the unavoidable damage to civilians,54 the attack did not target

civilians.

C. The element of “intent” is missing.

1. The mens rea, of individual criminal responsibility is lacking. In Blaskic, it

was held that the mens rea of recklessness incorporates (i) the awareness of a risk that the

result or consequence will occur or will probably occur, and (ii) the risk must be unjustifiable

or unreasonable. The mere possibility of a risk that a crime or crimes will occur as a result of

the actor's conduct generally does not suffice to ground criminal responsibility.55

2. Gusman is the acting Commander-in-Chief of the Armed Forces,56 his risk of

appointing Commander Hanson to lead “Operation Blue” because of the received intelligence

about Nirvana carrying stocks of weapon was reasonable because its purpose is to strictly

implement the inspection and regulation within the Maritime Controlled Zone given the




54 1863 Lieber Code,Article15.

55 Blaskic, 38.

56 Compromis, Par.2.Page 10 of 16

description of the vessel. 57 The mere possibility of the risk that a war crime may arise

between the marines and Nirvana does not suffice to ground criminal responsibility. It was

not of his knowledge that Nirvana would protest of Astron’s occupation to Yukule and their

resistance to the blockade despite of repeated warnings. 58

D. Gusman is not responsible under Article 28(a).

1. There was no “effective control”.

In Bemba, “effective control” is an element of superior responsibility59 and must be

obtained by modality, manner or nature by a commander over his forces or subordinates.60

The standard of it requires commander to have material capability to prevent or punish

criminal acts.61

In this case, Commander Hanson leading Operation Blue ordered to board and seize

Nirvana and to conduct an open fire, not even asking Gusman for instructions nor

consultations.62 The evidence only shows that Gusman do not have any direct communication

with Hanson during the armed conflict. Thus no evidence showed that Gusman had the

effective control in Operation Blue.

2. Gusman neither knew nor had reason to know of Hanson’s acts.



59 Bemba, 410, 411.

60 Bemba, 410, 411.

61 Delalic (Celebici), 378.

62 Compromis, Par. 26.Page 11 of 16

The ICTY, in Delalic, held that 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.63

In this case, Hanson made the decision to board and seize Nirvana, and ordered to

open fire without giving notice to Gusman in any forms.64 No information could enable

Gusman to conclude in the circumstances that Hanson was going to commit such act. Thus

neither Gusman knew nor had reason to know the alleged crime would be committed.

III. Admiral Tony Gusman is not liable for the war crime of causing widespread, long-

term and severe damage to the natural environment under Article 8 (b) (iv) and Article

25 (3) (a)

A. Astro’s military advantage is great.

1. Under the principle of proportionality collateral damage of an attack cannot be

excessive in relation to the “concrete and direct military advantage anticipated”.65 To

establish adherence to this principle, two factors shall be proved, to wit: the military

advantage is great and the environmental damage caused is not greater than said

attack.66

63 Delalic, 393.

64 Compromis. Par. 27.

65 Commentary on the Additional Protocols to the Geneva Conventions, International Committee of the Red Cross (ICRC Study), para.2209.

66 Ibid.Page 12 of 16

2. An ICTY Report confirms that a military advantage should be foreseeable at the

relevant time.67 This is further supported by the Statute which provides that a military

advantage must be substantial and relatively close.68

In this case, the objective of the Astron Force is crystal-clear: “to stop the

advancement of the Bereton Forces” towards Yukule.69 This objective is substantial,

foreseeable at the relevant time and relatively close for this involves the sovereign

claim of the Astro over Yukule70 as well as imminent defeat of the Astron Force by the

Bereton Force which launched an intensive military campaign against the former.

3. In Rendulic Trial,71 the Nuremberg Military Tribunal acquitted General Lothar

Rendulic of war crime of causing wanton destruction of the property in Norway in

order to escape the advancing Russian troops on the basis that the military necessity

justified his action.72 In this case, the military necessity is great which justifies the

damage to the natural environment.73

B. Environmental damage is not clearly excessive.

67 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign, para. 50.

68 Commentary on the Additional Protocols to the Geneva Conventions, International Committeeof the Red Cross (ICRC Study), para.2209

69 Compromis, para. 3970 Compromis, para. 571 The Hostages Trial, 8 LAW REP. TRIALS WAR CRIMINALS 34, 69 (1948).72 Mark A. Drumbl, Waging War Against the World: The Need to Move From War Crimes to Environmental Crimes, 22 FORDHAM INT’L L. J. 122, 134 (1998).73 Compromis, para. 39.

Page 13 of 16

1. Environmental damage should be widespread, long-term and severe.74 These three

qualities of damage shall be satisfied.75 However, the Rome Statute failed to define

these three qualities while Additional Protocol I only defined long-lasting as a “period

of at least decades”.76 Jurists agree that the definition supplied under Additional

Protocol I lies in qualifying the damage.77

In this case, the damage that was caused by Astro was estimated to “take a few

years”.78 Clearly, this fails to prove that damage is “long-lasting” as what the

Additional Protocol I provides.

C. The mental element is not present.

1. The requisite mens rea as provided under the Rome Statute are: (1) the perpetrator

knew that the attack would cause widespread, long-term and severe damage to the

natural environment; and (2) the perpetrator knew that such environmental damage

would be clearly excessive. To warrant conviction, these two elements should be

proved.79

2. In Galic, the ICC held that “knowledge of the circumstances requires that the

perpetrator assess the possible casualties based on requisite information which enables

him to know the excessive damages as a consequence of the attacks”.80

74 Rome Statute, Art. 8 (2) (b) (iv) and Additional Protocol I, Art. 35 (3).75 W.J. Fenrick, "Article 8(2)(b)(iv), in: O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 1999, 197.76 Supra note 6 at 128.77 Supra note 6 at 128.78 Compromis, para. 42.

79Rome Statute, Art. 8 (2) (b) (iv). 80 ICTY, Prosecutor v. Stanislav Galic, Trial Chamber I, IT-98-29-T (5 Dec 2003), para. 58.

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In this case, Gusman merely gave Freedman a general order.81 It was Freedman who

had the direct control of the military actions taken by the Astron Force.82 Gusman,

therefore, had no immediate means to know the surrounding circumstances since

Freedman had the direct command on the ground.

3. Strugar83 confirms that a perpetrator is liable for the attack if he has direct intent to

damage or destroy. In this case, Astro was forced by circumstances to employ such

attack with the belief that they would be able to stop the advancement of the Bereton

Force towards Yukule.84

Rendulic Trial85 proves that an accused is not liable for an attack if he believes that

this is necessary to win the war. In this case, Astro was compelled to institute the

scorched-earth policy to prevent Bereto from advancing.

D. Gusman is not responsible under Art. 25 (3) (b).

Mudacumura laid down the elements for establishing liability under Art. 25(3)(b).86

One of these elements was not satisfied.

1. The requisite actus reus is not present.

To prove the requisite actus reus under this article, it must be established that

Gusman’s order has direct effect on the commission of the alleged crime.

Kamuhanda87 qualifies that the order shall have “direct and substantial authority

81 Compromis, para. 36.82 Compromis, para. 37.83 ICTY, Prosecutor v. Strugar, Case No. IT-01-42-T (2005), para. 311.84 Compromis, paras. 36, 39.

85 Supra note 5 at 69.86 ICC, Mudacumura, Decision on the Prosecutor’s Application under Article 58, para.63.87 ICTR, Appeals Chamber, Kamuhanda v. The Prosecutor, "Judgement", 19 September 2005, ICTR-99-54AA, para. 75

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over the perpetrator of the crime”. Akayesu88 and Mudacumura89 further provides

that in order to be liable under this article, the evidence must prove “in what

capacity the accused supported the act” and “the order has direct effect on the

commission and attempted commission of the crime”.

In this case, Gusman only gave general order. After such order was given, Gusman

never performed succeeding acts to show that he influenced the military actions

taken by Astron Force on the ground. Moreover, there were no clear proofs to

show in what capacity Gusman supported the act nor how the order affected the

commission and attempted commission of the crime.

PRAYER FOR RELIEF

Wherefore, the defense prays that this Honoroble Court, render judgement finding the

accused not guilty of the crime charged.

Counsel of Defense

88 ICTR, Akayesu Judgement para.64289 ICC Mudacumura decision on the Prosecutor’s application under Art.58

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