The National Round of IHL Moot Court Competition 2022

Faculty of Law and Political Science, National University of Laos

Amphon KHAMMANYVONG (MR.)

Latdaphone SORPHAPMEXAY (MS.)

Soumaly SISOUTHAMMOUNY (MS.)

DEFENDANT

V.

President Azizi Garba

MEMORIAL FOR THE DEFENDANT

Word count: 3,495

 PRELIMINARY MATTERS

I. Jurisdiction.

1. Rome Statute Article 5 Crimes within the jurisdiction of the Court shall be limited to the
most serious crimes of concern to the international community as a whole. The Court has
jurisdiction in accordance with this Statute with respect to the following crimes: (a) The
crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of
aggression1, in this case, the intentionally as mentioned in Article 8(2)(b)(i)(ii)(iii)(iv) of
war crimes is not the crimes that president Garba did as it is not mentioned in the fact.

II. Admissibility.

2. Even while it is undeniable that the International Criminal Court ("ICC") has
jurisdiction over the alleged crimes, this case is not admissible because it lacks the
seriousness required for the Court to take further action.

3. The measures used as part of a plan or policy or as part of a large-scale commission of

such crimes can be used to measure the way of committing the crimes 2. Therefore, it
doesn't seem like the claimed crimes are significant enough to be admitted before the ICC.

4. As a result, the case cannot be heard.

5. Hence, the case is inadmissible.

III. Nature of armed conflict

The conduct did not take place in the context of an international armed conflict (“IAC”).

6. The behavior must be connected to an IAC3 for each count in the indictment. Regardless
of the causes or the degree of the encounter, an IAC occurs when one or more States use
armed force against another State4. It is a proof that the situation in Momaayo is a non-
international armed conflict (“NIAC”) .

1
Rome Statute of the International Criminal Court ICC Statue, Article 51
2
Rome Statute of the International Criminal Court ICC Statue. Article 8(1)
3
ICC Statue, Art 8(2)(a)(vii), 8(2)(b)(i), 8(2)(b)(ix)
4
Common Article 2 to the Geneva Conventions of 1949
 INDICTMENT I
I. CHARGES CAN NOT BE PRESSED AGAINST PRESIDENT GARBA FOR THE
INDIVIDUAL CRIMINAL RESPONSIBILITY FOR THE DESTRUCTION OF THE
BAOBAB TREE SANCTUARY IN MOMAAYO AS THE ACTS COMMITTED BY
LT. COL. DIALLO IS BEYOND THE ORDERS GIVEN BY THE PRESIDENT AND
IS NOT GUILTY UNDER ART. 25 OF THE ICC STATUTE.

7. President Garba gave Lt. Col. Diallo the order for troops from the 1st Commando
Battalion on 24 April 2021 to cross the border by stealth through the Momaayo National
Park and peacefully contain the village of Dunanti near the border, until the Kissakan oil
miners begin the oil drilling the next day.

1.1 The accused is not individually responsible under Article 25

8. Article 25 of the Statute entails a person is criminally responsible for a crime committed
within the jurisdiction of the Court if he orders, solicits, or incites the commission of such a
crime, which is either attempted or committed. 5It is asserted that the accused, President
Garba, through his order, did not, solicit, or incite the crime of destruction of the Baobab
Tree Sanctuary in Momaayo, under the jurisdiction of the court and cannot be held
criminally liable for the actions by Lt. Col. Diallo. This is because he
(a) Did not order or
(b) Solicit the said crime.

1.1 a. The accused did not order the said crime under Art. 25(3)(b)

9. Although the accused ordered Lt. Col. Diallo and the troops from the 1st Commando
Battalion to cross the border by stealth to secure the oil access point, he never used his
position as the President to convince Lt. Col. Diallo or any other person to commit the
crime of destroying the Baobab Tree Sanctuary for which he is accused of. 6 Thus, it is
concluded that the accused did not order any crimes for which he is charged before this
court.

1.1 b. The accused did not solicit the crime of destroying the Baobab Tree Sanctuary
under Art. 25(3)(b)

10. It is eminent from the facts that President Garba had two objectives which are to secure
the access point to the oil, and to peacefully contain the villagers in their houses until the
Kissakan oil miners were able to begin drilling for oil the next day". 7The President neither
intend to provoke the commission of the crime nor was aware of the substantial likelihood
of the crime.

1.2 The defendant is not liable under article 25(3)(c) RS.

11. The Defendant is not liable for aiding and abetting the charged crimes, as he does not
fulfill the required of Article 25(3)(c)8 RS. He neither acted with the purpose to facilitate
[(i)] nor with intent regarding the principal's crime [(ii)].
5
Rome Statute of the International Criminal Court, Art 25, July 17, 1998
6
Fact, Para 20
7
Supra at 7
8
Rome Statute of the International Criminal Court, Art 25(3)(C), July 17, 1998
(i) The defendant did not act with the purpose to facilitate pursuant to Article 25(3)(C)
RS

12. Garba's main objective as the President regarding Kissaka's national security was to
continue to secure the oil access point, which Lt. Col. Diallo was ordered to do". 9Therefore,
deploying troops and crossing the border by stealth was sufficient to carry out the
President's objectives. Although President Garba knew about the planned operation, the
flattening of the Baobab trees was indifferent to him. He only wished for the securing of the
oil access point and not any kind of destruction to the Baobab Tree Sanctuary in Momaayo.
However, there are no substantial reasons to believe that President Garba intended any kind
of damage to the Baobab Tree Sanctuary in the process. Therefore, Defendant did not act
with the purpose to facilitate the principal's crime.

(ii) The defendant did not act with intent regarding the principal's crime

13. If the Court considered that the attacks were intentionally directed against the
destruction of the Baobab Trees, President Garba would have erred about the act of
destruction of nature's legal characterization. It is evident that the investigation for the oil
lasted 8 months and cost both countries USD 550,000, which was a considerable
expenditure for the government of Kissaka 10and this was to be considered one of the
essential reasons for President Garba to order the securing oil access point. It is also to be
noted that Poverty in Kissaka was intensifying drastically due to the COVID-19 pandemic, 11
having already invested a large amount of money into the project and being reliant on the
oil to re-establish his military arsenal, it was a necessity to secure the oil access point. 12 He
further knew that the Battalion intended solely to secure the oil access point. Thus, he could
assume that the operation’s imprecision would only cause minimal damage to the extent of
collateral damage. The mistake about the intensity of the operation exceeds the expected
collateral damage. This was done due to the reckless operation carried out by Lt. Col.
Diallo. Thus, President Garba erred about the legal element of intentionally launching an
attack in the knowledge that such an attack will cause incidental severe damage to the
natural environment under Article 8(2)(b)(iv) RS.

14. Therefore, regarding his own act, he did not act with intent regarding the principal's
crime. Overall, Defendant is not liable under Article 25(3)(c) RS.

9
Fact, Para 20
10
Fact, Para11
11
Fact, Para15
12
Fact, Para 20
 INDICTMENT II

II. PRESIDENT AZIZI BARBA CAN NOT BE INDIVIDUAL CRIMINAL

RESPONSIBILITY OF WITH RESPECT TO THE INTRODUCTION OF CRUDE
OIL INTO THE NADAWADA RIVER FOR ORDERING, SOLICITING, OR
INDUCING THE COMMISSION OF SUCH A CRIME WHICH IN FACT OCCURS
OR IS ATTEMPTED AS PER ARTICLE 25 OF THE ROME STATUTE

15. The war crime of intentionally launching an attack in the knowledge that such attack will
cause incidental loss of life or injury to civilians or to civilian objects or widespread, long-
term and severe damage to the natural environment which would be clearly excessive in
relation to the concrete and direct overall military advantage anticipated in Article 8(2)(b)(iv)
of the Rome Statute. 13

2.1 Elements of a crime according to Article 8 (2) (b) (iv)

War crime of excessive incidental death, injury, or damage

2.2 The perpetrator launched an attack

16. Attack is defined as acts of violence against the adversary, whether in offense or
defence.14

The attack was such that it would cause incidental death or injury to civilians or
damage to civilian objects or widespread. long-term and severe damage to the natural
environment and that such death, injury or damage would be of such an extent as to be
clearly excessive in relation to the concrete and direct overall military advantage
anticipated

17. As public pressure on President Garba increased, on July 10, 2021, President Garba
gave the order for Kissakan troops to weaken the Momaayo military by filtering existing
stores of crude oil into the Nadawada river." 15 Here President Garba ordered the filtering of
crude oil into the Nadawada river with only the intention to weaken its military standing.
This shows that President Garba had no intention to create extensive damage and indirectly
attack the civilian population, it points towards the mens rea of President Garba.

18. The extent of the damage caused was not known to President Garba. The Rome Statute
says it is a war crime to intentionally cause "widespread, long-term, and severe damage to
the natural environment which would be clearly excessive" to the military advantage to be
obtained"16. Here according to the Rome Statute, the intentionality of President Garba's
actions cannot be proved.

2.2 The conduct took place in the context of and was associated with an international
armed conflict.

13
Article 8(2)(b)(iv), Rome Statute
14
Art. 49, International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts (Protocol 1), 8 June 1977
15
Fact, Para29
16
Art 8(2)(b)(iv)Rome statute
 19. The actions did not take place in the context of an international conflict but due to
public pressure faced by President Garba in a poverty-ridden and unsafe nation. This could
not define this case as an international armed conflict.

2.3 The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.

20. In this case the perpetrators were aware of the presence of the Royal Momaayo Army
but the act of filtering crude oil was driven by high public pressure and not as an act of
war in an armed conflict.

21. The individual criminal responsibility of President Garba cannot be proved as he acted
in response to national pressure and not intentionally in an act of war. The mens rea in
committing such an environmental crime cannot be hence established.

22. Therefore, President Azizi Garba is not guilty for an individual criminal responsibility
with respect to the introduction of crude oil into the nadawada river for ordering,
soliciting, or inducing the commission of such a crime which in fact occurs or is attempted
as per article 25 of the rome statute

INDICTMENT III
III. CHARGES CAN NOT BE PRESSED AGAINST PRESIDENT AZIZI GARBA ON
THE BASIS OF RESPONSIBILITY OF COMMANDERS AND OTHER SUPERIORS
AS PER ARTICLE 28 OF THE ROME STATUTE IN ACCORDANCE WITH THE
KILLING OF FIVE UN PERSONNEL.

3.1 President Garba cannot be held liable for the act done by Lt. Col. Diallo which
resulted in the violence against the UN personnel.

23. President Garba was not aware of the unlawful means Lt. Col. Diallo was to use in
order to secure the oil access point at Dunanti17.

24. Article 28 (b)18 talks about how "a superior shall be criminally responsible for crimes
within the jurisdiction of the Court committed by subordinates under his or her effective
authority and control, as a result of his or her failure to exercise control properly over such
subordinates, where:

(i) The superior either knew or consciously disregarded information that clearly indicated,
that the subordinates were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective responsibility and
control of the superior; and

(iii) The superior failed to take all necessary and reasonable measures within his or her
power to prevent or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.

17
Fact, Para 20
18
Article 28(b), Rome Statute
 25. It is nowhere mentioned that President Azizi Garba was the military commander to
whom Lt. Col. Diallo was directly accountable to. Even though the President ordered Lt.
Col Diallo to return to Dunanti and secure the oil access point 19, he explicitly instructed
him to use "lawful" means to secure the access. There are no terrible intentions in his order
and he has nothing to do with the killing of the Five UN personnel 20. The entire act was a
cause of Lt. Col. Diallo who was known to be a violent and brutal man who often
overstepped his orders.

26. In 2010, when a minor border clash occurred between the two nations Lt. Col. Diallo
headed a small platoon and despite the direct orders to maintain peace and to fire only in
case of retaliation, he ordered his troops to cross the border and attack the border village of
Dunanti. Seven Momaayo boys who were playing in the river of Nadawada were attacked
by the troops and during the course of this attack, they were killed on orders of Lt. Col.
Diallo who was then the First Lieutenant. Adding on to this he made problematic
statements saying "all teen Momaayos grow into aggressive filth like their fathers". The
attack and the comments led to one of the biggest clashes between the two nations in over
a century21. He also publicly criticized the Momaayan people calling them lesser beings
and filthy animals among other derogatory terms. There was another instance where he
yelled orders to his troops after which all the male villagers in the village were lined up
and shot in the back of their heads and was estimated that 170 men and boys died 22. All
these events clearly denote that Lt. Col. Diallo defied orders from everyone and acted of
his free will. It can further be said that the president gave orders but Lt. Col. Diallo acted
irrationally and thus the President cannot be blamed for the incidents and does not satisfy
any of the three clauses of Article 28

3.2. The act committed by President Azizi Garba will not fall under the ambit of War
crime of attacking personnel or objects involved in a humanitarian assistance or
peacekeeping mission.

27. This particular war crime does not fall under the ambit of Article 8 (2) (b) (iii) of the
Rome Statute. Article 8 (2) (b) (iii) of the Rome statute talks about the necessary elements
which are to be fulfilled to be charged under the act of war crime performed in
humanitarian assistance or peacekeeping missions23.

The elements are:

1. The perpetrator directed an attack.

2. The object of the attack was personnel, installations, material, units, or vehicles
involved in a humanitarian assistance or peacekeeping mission in accordance with the
Charter of the United Nations.

3. The perpetrator intended such personnel, installations, material, units, or vehicles so

involved to be the object of the attack.

4. Such personnel, installations, material, units, or vehicles were entitled to that protection
given to civilians or civilian objects under the international law of armed conflict.
19
Fact, Para 20
20
Fact, Para 37
21
Fact, Para 9
22
Fact, Para 26
23
Article 8 (2) (b) (iii), Rome Statute
 5. The perpetrator was aware of the factual circumstances that established that protection.

6. The conduct took place in the context of and was associated with an international armed
conflict.

7. The perpetrator was aware of factual circumstances that established the existence of an
armed conflict.

28. The acts done by the president do not fall under the ambit of any of these elements.
Moreover, it is clearly mentioned that Lt. Col. Diallo was the one who was responsible for
the violence against the UN personnel. He could clearly make out they were UN
volunteers as they all wore a very distinctive blue beret denoting the UN emblem 24. Since
they were all wearing blue, we can say that Lt. Col. Diallo couldn't differentiate between
the police officer and workers and which inherently led to their shooting. The police
officer, in her panic and hysteria of the moment, reacted by reaching out to her semi-
automatic pistol and discharging a round. The bullets bounced off the ground and hit the
arm of a UNEP worker, and Lt. Col. Diallo being a trained military man naturally
retrieved his assault rifle and opened fire in order to save himself as they are trained to
stay alarmed and react to instincts, Because of the accidental gunfire, these incidents are
referred to as self-defense, due to his instincts as a senior military officer, he had to defend
himself to keep himself alive and carry out the mission.

INDICTMENT IV
IV. PRESIDENT AZIZI GARBA IS NOT GUILTY OF WAR CRIMES UNDER ART.
8(2)(b)(i) OF THE ROME STATUTE WITH RESPECT TO THE KILLING OF 170
MEN AND BOYS IN THE TOWN OF DUNANTI ON THE BASIS OF THE
RESPONSIBILITY OF COMMANDERS AND OTHER SUPERIORS AS PER
ARTICLE 28 OF THE ROME STATUTE,

4.1 President Garba did not possess knowledge about the conduct of Lt. Col. Diallo and
took necessary measures to prevent the charged crime.

29. It is submitted by the Counsel for the Defense, that the President was not negligent in
taking all measures to prevent the crime since he had no reason to believe such a violent
attack on Civilians would be committed in the first place. Further, the president had given
strict orders to execute the operation to contain the villagers peacefully. 25 To avoid
shooting with soldiers on the road and make the shorter round of the road just to get to the
oil access point26,

30. Thus, the accused took all reasonable and necessary measures to prevent the charged
crime that might be committed

31. Liability can be established through two forms of mens rea-the commander knew that
the subordinate was about to commit a crime or had done so as well as a standard of
24
Fact, Para 37
25
Fact, Para 20
26
Fact, Para 21
 culpable negligence where the perpetrator had reason to know 27. It is eminent for the court
to look into the term “peacefully” as used by President Garba as it shows the absence of
mens rea on part of President Garba for the charged crime of killing 170 innocent
civilians; also President Garba was not negligent in taking all measures to prevent the
crime since he had no reason or knowledge to believe such a violent attack on Civilians
would be committed as his order clearly said to implement the operation to contain the
villagers in a peaceful manner28.

4.2 Lack of Motivation and the limitations of Geography to commit the charged crime
on Part of the President

32. The essential element is not whether a commander controls a certain geographic area,
but whether he controls the individuals who commit war crimes 29. It is to be noted that
there was no motivation on part of President Garba to commit the indiscriminate crime of
killing innocent civilians, as his only motivation for the operation was to secure the oil
access point30. It is important to note, that influence does not meet the requirement of
effective command in the Celebici Case, the tribunal made a clear distinction between
compliance achieved through bullying or the exercise of actual authority31.

33. It is submitted before the hon'ble court, the Appeals Chamber held that Bemba cannot
be held criminally liable under article 28 of the Rome Statute and fully appreciate the
limitations that Bemba would have faced in investigating and prosecuting crimes as a
remote commander sending troops to a foreign country.32 It is to be considered that
President Garba was by no means able to control the impulsive actions of Lt. Col. Diallo
and the 1st Commando Battalion in the foreign land of Momaayo. Henceforth it is
submitted that the President of the Republic of Kissaka is not responsible as superior and
cannot be held guilty for the crimes committed by Lt. Col. Diallo and the 1st Commando
Battalion33.

27
Centre for International Law Research and Policy 2016, op. cit.
28
Fact, Para 20
29
Celebici Case, op. cit., 245
30
Fact, Para 20
31
Celebici case, op. cit. 288

32
The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against
Trial Chamber III's ¶ 191
33
Rule 155, Customary Law
 PRAYER FOR RELIEF

For this reason, the defendant submits that President Azizi Garba is not committed
war crimes under article 8(2)(b)(iv), article 8(2)(b)(iii) and 8(2)(b)(i) of ICC Statue.

Respectfully Submitted

Agents for the Defendant