| THE 5TH INTERNATIONAL HUMANITARIAN LAW | | | | informed did nothing to prevent them encourages |
| MOOT COURT COMPETITION | | | | the crimes to be committed by appreciating the spirit |
| INTERNATIONAL COMMITTEE OF THE RED CROSS | | | | of the youth. |
| KUALA LUMPUR, SATURDAY, 13TH – 14TH | | | | 2. GB IS LIABLE FOR INCITING THE COMMISSION |
| DECEMBER 2008 | | | | OF GENOCIDE UNDER ARTICLE 25 (3) (E) |
| THE CASE CONCERNING | | | | GB is liable for inciting genocide even if the actual |
| PROSECUTORv. | | | | genocide did not materialize . Remarks made by GB |
| GENERAL BUTCHERand | | | | fulfilled the elements required for liability.a) The |
| MAJOR GENERAL MARSHALL | | | | incitement was made publicly and directly |
| Leading Counsel : Mahyuddin bin Daud Junior Counsel : | | | | The incitement must be communicated to individuals |
| Marshila binti Mohtar | | | | in a public place and specifically urging another to take |
| INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA | | | | specific immediate criminal action. His manifesto urging |
| (IIUM) | | | | the commission of genocide was publicly distributed |
| THE APPLICANT’S BRIEF | | | | to all his cadres of 12 member central committees |
| (All articles are herein referred to the Rome Statute | | | | and 1500 members of SNA. His message was filled |
| of International Criminal Court unless otherwise | | | | with hatred and rage directing the Delphons to |
| stated) | | | | eliminate all links with Rumons ethnic.b) The direct and |
| TEAM 505A | | | | public incitement was intentional |
| STATEMENT OF FACTS | | | | GB knew that he was acting publicly and intended to |
| Suburbia and Megrisland are neighboring countries that | | | | do so as the manifesto was distributed to all |
| thrives on common oil resources which has been | | | | Delphons.c) The incitement was made with intent to |
| gradually depleting. This strained their geopolitical ties. | | | | destroy a protected group in whole or in part |
| Suvidesh is a province in Suburbia dominated by the | | | | The intent to provoke another to commit genocide |
| Delphons whilst the Rumons are the minority. The | | | | means the perpetrator and the incited persons have |
| Delphons were treated unfairly by Suburbian | | | | the intention to commit genocide. GB’s intent |
| government causing them to feel discriminated. | | | | could be derived from the manifesto that he wanted |
| Consequently, Suvidesh Nationalist Alliance (SNA) was | | | | to destroy an ethic group, the Rumons. The |
| established by Mr. Butcher to liberate Suvidesh from | | | | Delphons subsequently killed more than 1000 Rumons, |
| the grasp of the Rumons. | | | | indicating their genocidal intent. |
| Styling himself as General Butcher, military training | | | | Thus, GB had committed incitement to genocide. |
| was imparted to SNA members consisting of youths. | | | | 3. GB IS LIABLE FOR ENLISTMENT OF CHILDREN |
| He provoked the Delphons to eliminate all links they | | | | UNDER ARTICLE 8 (2) (e) (vii) |
| had with the Rumons and addressed them as | | | | GB is responsible for enlisting children under 15 years |
| enemies. Shortly, it was reported that Delphon | | | | old by using them to participate actively in hostilities . |
| youths killed as many men as they could catch and | | | | The elements required are fulfilleda) The perpetrator |
| attacked unarmed women and children. | | | | enlisted one or more persons to participate in |
| The liberation was later supported by Megrisland as | | | | hostilities |
| one armed battalion was sent to help the SNA. Led | | | | GB had instructed military training and guerrilla warfare |
| by Major General Marshall, Megrisland forces attacked | | | | techniques to a number of youth who joined SNA |
| a 14th century Shrine and oil fields. Large numbers of | | | | and is responsible for youths under SNY as he |
| people were killed since the attack caused fire to | | | | acknowledged their acts .b) Such youths were under |
| spread to nearby villages. | | | | 15 years old. |
| Sensing grave threat to international peace and | | | | GB is liable for enlisting persons under the age of 15.c) |
| security, UN Security Council issued resolution | | | | The perpetrator has the knowledge of the |
| directing the parties to stop the hostility. As a | | | | youth’s age |
| measure to preserve justice, the Prosecutor of ICC | | | | GB should have known that the youngsters were |
| hereby indicted General Butcher and Major General | | | | under 15 years old as he denied the existence of the |
| Marshall. | | | | youth wing to deny responsibilities. |
| PLEADINGS AND AUTHORITIES | | | | 4. MAJOR GENERAL MARSHALL (MGM) IS |
| THE CONFLICT IN SUVIDESH BEFORE 1ST | | | | INDIVIDUALLY LIABLE FOR CRIME OF ATTACKING |
| FEBRUARY 2007 CONSTITUTES AN INTERNAL | | | | PROTECTED OBJECT AND VIOLATED THE ROME |
| ARMED CONFLICT AND NOT MERE DISTURBANCES | | | | STATUTE AND ADDITIONAL PROTOCOL 1 TO THE |
| Internal armed conflict occurs when there is a | | | | GENEVA CONVENTION 1949.a) The internal armed |
| protracted armed violence between governmental | | | | conflict in Suvidesh was internationalized after 1st |
| authorities and organised armed groups within a | | | | February 2007 |
| State. The situation in Suvidesh amounts to an | | | | An internal armed conflict may become |
| internal armed conflict as the two elements to prove | | | | internationalized when a conflicting party to the |
| the existence of a protracted armed violence is | | | | internal armed conflict acts on behalf of another |
| established.a) The conflict in Suburbia was intense and | | | | State. Megrisland had endorsed SNA’s unlawful |
| not merely isolated sporadic acts of violence. | | | | acts by sending a battalion under MGM to assist |
| Intensity can be proven from circumstantial evidence | | | | them. This amounts to involvement in the conflict. |
| and involvement of the United Nations’ Security | | | | Thenceforth, it became an internationalized armed |
| Council (UNSC). GB imparted military and guerrilla | | | | conflict.b) MGM directed an unlawful attack at the |
| warfare training to the SNA members who were | | | | Gopada Shrine which is a protected object |
| responsible for the insurgency operations shortly | | | | An attack was made by MGM’s troops causing |
| after. The intensity of the conflict came to its climax | | | | forty percent damage to the front side of the |
| when the Delphon youths killed as many as 500 | | | | Gopada Shrine . Gopada Shrine is a protected civilian |
| Rumon men, women and children in Suvidesh | | | | object and cannot be attacked. Attack may only be |
| pursuant to GB’s manifesto. Furthermore, the | | | | directed against military objectives and not civilian |
| conflict was intense enough to involve the UNSC.b) | | | | objects. As a consequence, MGM had a duty to |
| The SNA was an organised military group and not a | | | | differentiate between civilian objects and military |
| random group of rioters | | | | objects which he failed.c) MGM intended the Gopada |
| A group is organised if they have significant territorial | | | | Shrine to be attacked |
| control. As the SNA had conducted military trainings | | | | The mens rea required to incur liability is intention . |
| and meetings at several places, it is clear that they | | | | MGM had a duty to cancel the attack but he clearly |
| possess a significant territorial control over Suvidesh. | | | | intended to attack the Shrine as it was a hideout for |
| INDICTMENTS | | | | the Suburbian forces.d) The attack on the Gopada |
| 1. GENERAL BUTCHER (GB) IS LIABLE AS A | | | | Shrine was not justified by military necessity |
| SUPERIOR FOR THE WAR CRIMES COMMITTED BY | | | | Military necessity must exist together with the |
| THE DELPHON YOUTHS UNDER ARTICLE 28 (A) | | | | principle of proportionality. An attack becomes |
| The Delphon youths committed war crimes of | | | | unlawful and disproportionate if it causes excessive |
| murder and attacking civilians . GB as a superior to | | | | damage to civilian objects. There was excessive |
| the Delphon youths is subject to liability for their act. | | | | damage done to the Shrine as more then forty |
| GB is a military commander and fulfilled the elements | | | | percent of the shrine was destroyed. It is not |
| to impose liability.a) There was a superior-subordinate | | | | proportionate compared to the main purpose of |
| relationship between GB and the Delphon youths | | | | attacking the Suburbian forces. |
| Relationship can be proven through effective | | | | 5. MAJOR GENERAL MARSHALL IS INDIVIDULLY |
| command and control . GB’s effective control | | | | LIABLE FOR THE ENVIRONMENTAL DAMAGE |
| can be proven by his de facto and de jure authority . | | | | CAUSED BY THE FIRING TOWARDS THE OIL |
| He was officially appointed and regarded as | | | | FIELDS |
| SNA’s leader by the members. Furthermore, his | | | | MGM is prohibited to launch an attack knowing that |
| leadership was immensely influential amongst SNA | | | | such attack will cause widespread, long-term and |
| members, prompting them to launch attacks against | | | | severe damage to natural environment which would |
| the Rumons. These facts prove his relationship and | | | | clearly be excessive and disproportionate in relation |
| effective control over the Delphon youths.b) GB had | | | | to the concrete and direct overall military advantage |
| reasons to know about the crimes committed or | | | | anticipated. MGM fulfilled all elements to incur liabilitya) |
| about to be committed by them | | | | The attack caused excessive widespread, long-term |
| Prior to the attack on 7th January 2007, leaflets and | | | | and severe damage to the natural environment. |
| posters with caricatures portraying a group of people | | | | Excessive means disregarding the safety of the |
| with swords and axes chasing other group consisting | | | | civilian population. MGM had the knowledge that the |
| of women and children were distributed. This | | | | oil wells were located near a village but ignored them |
| information was available to GB when the media | | | | and continued attacking which caused excessive |
| asked him about the leaflets and posters. At this | | | | damage . UNEP and environmental experts’ |
| instant, GB had a duty to make additional | | | | reports showed that the fire would leave a severe |
| investigation about the commission of the crimes. | | | | damage for a long term in the area of both |
| Failure to investigate cannot render a defense for GB | | | | countries.b) MGM knew that his act would cause such |
| to deny his knowledge . However, he failed to | | | | effect |
| further investigate but instead encouraged the crimes | | | | MGM had a duty to make value judgment that the |
| to be committed. Thus, GB had reasons to know of | | | | damage would be excessive based on the requisite |
| the information about the crime committed or about | | | | information available to him at that time. MGM |
| to be committed by the Delphon youths.c) GB failed | | | | knowing the oil wells’ locations had the requisite |
| to prevent and punish the Delphon youths | | | | information to judge that his attack would cause |
| GB had effective command and control proving that | | | | severe damage. |
| he had the material ability to prevent and punish the | | | | *The original document has references & |
| commission of the crimes . However, GB after being | | | | footnotes. |