STATEMENT OF FACTS

Background

1. Yousef Aflan, leader of the ruling Revolutionary Party, was elected as President in 2000
and has been in power since then. A close political ally, General Hassan Amir, is heading
the Alini Defence Forces (ADF) since 1980.
2. Over the last decade, corruption, abuse of power, arbitrary arrests and stringent
restrictions on political activity and freedom of expression have become prevalent under
the Aflan regime. The population have become increasingly disillusioned with the
Revolutionary Party and the President.
3. On 15 March 2013, a militant group, unknown to the public until then, attacked the police
and security forces in the southern part of Orkan and took control of a local
administrative council. Colonel Aziz Nur, leader of this self-proclaimed Alin Liberation
Army (ALA), announced in the media that the ALA was a voluntary force striving for a
free Alin through armed struggle. Colonel Nur called for the resignation of Yousef Aflan
and a national election. Eventually, ALA was declared as terrorists.

Demonstrations and Crackdown in North Orkan

4. On the morning of 13 June 2013, around 2,000 residents gathered to demonstrate and
march towards the Town Hall. They encountered ADF obstructions not long after they
started, but kept marching on. As the demonstrators were approaching the Town Hall, the

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ADF used tear gas and plastic bullets to disperse the crowd. Some armed demonstrators
then attacked the ADF soldiers with concealed firearms, killing two and wounding
several others. Six persons were killed by ADF soldiers using live ammunition. At noon,
the demonstration was dispelled and more than 150 demonstrators were arrested.
However, about 200 demonstrators succeeded in occupying another building in the
vicinity the National Technical College (NTC).
5. . Later that day, the ADF actively searched the neighbourhood close to the Town Hall,
arresting demonstrators. At around midnight, an ADF unit entered the NTC building to
carry out a search which lead to acts of violence. A demonstrator testified later that she
was taken with several other women to the basement of the building where they were
raped repeatedly before being transferred to a detention facility operated by the Ministry
of Security. She was eventually released on 17 June 2013. Two other women described in
detail how they were arrested outside the NTC, taken to the detention facility to be
interrogated, and raped there by soldiers before being let go the following morning.

SUMMARY PLEADINGS

I.

NATURE OF THE ARMED CONFLICT WAS NOT OF AN INTERNATIONL

CHARACTER
The armed conflict was international in nature.
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As pronounced by the Honorable Court in the case of Prosecutor vs. Tadic, armed
conflict is international if it takes place between two or more States. In addition, in
case of an internal armed conflict breaking out on the territory of a State, it may
become international (or, depending upon the circumstances, be international in
character alongside an internal armed conflict) if (i) another State intervenes in that
conflict through its troops, or alternatively if (ii) some of the participants in the
internal armed conflict act on behalf of that other State.

II. Hassan Asmir is not criminally liable for the war crime of rape.

As embodied under the Rome Statute, Article 8 (2) (e) (vi), the crime of rape is a war
crime if committed with the following elements to wit, (a)The perpetrator invaded the
body of a person by conduct resulting in penetration, however slight, of any part of
the body of the victim or of the perpetrator with a sexual organ, or of the anal or
genital opening of the victim with any object or any other part of the body, (b) The
invasion was committed by force, or by threat of force or coercion, such as that
caused by fear of violence, duress, detention, psychological oppression or abuse of
power, against such person or another person, or by taking advantage of a coercive
environment, or the invasion was committed against a person incapable of giving
genuine consent (c) The conduct took place in the context of and was associated with
an armed conflict not of an international character, and (d) The perpetrator was aware
of factual circumstances that established the existence of an armed conflict. It is
worthy to note, however, that the following elements were not met.
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PLEADINGS
I. NATURE OF THE ARMED CONFLICT
A. THE CONFLICT BETWEEN ALINI DEFENCE FORCES (ADF) AND
ALIN LIBERATION ARMY (ALA) WAS OF AN INTERNATIONAL
ARMED CONFLICT.
An international armed conflict exists if there is resort to use of armed force between
States.1 As held in the case of Prosecutor vs. Tadic 2, in case of an internal armed
conflict breaking out on the territory of a State, it may become international (or,
depending upon the circumstances, be international in character alongside an internal
armed conflict) if (i) another State intervenes in that conflict through its troops, or
alternatively if (ii) some of the participants in the internal armed conflict act on behalf
of that other State.

1 Article 2, Geneva Conventions

2 Prosecutor vs. Tadic, p.84.
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In the case at hand, though the conflict was internal, it was internionalized by the fact
that one of the participants in the internal armed conflict was assisted by the
International Security Support Force (ISSF) which comprises of the other countries
such as Blin and Clin to name a few.3 In such case, the giving of military and law
enforcement trainings of the ISSF to the ALA members and the sharing of
intelligence of ISSF and ALA qualifies the conflict as an international in character.4

II. Hassan Asmir is not liable for the war crime of rape under the command responsibility
doctrine.
As embodied under the Rome Statute, Article 8 (2) (e) (vi), the crime of rape is a war
crime if committed with the following elements to wit, (a)The perpetrator invaded the
body of a person by conduct resulting in penetration, however slight, of any part of
the body of the victim or of the perpetrator with a sexual organ, or of the anal or
genital opening of the victim with any object or any other part of the body, (b) The
invasion was committed by force, or by threat of force or coercion, such as that
caused by fear of violence, duress, detention, psychological oppression or abuse of
power, against such person or another person, or by taking advantage of a coercive
environment, or the invasion was committed against a person incapable of giving
genuine consent (c) The conduct took place in the context of and was associated with
an armed conflict not of an international character, and (d) The perpetrator was aware
of factual circumstances that established the existence of an armed conflict. It is
worthy to note, however, that the following elements were not met.
3 Compromis 13 and 12.
4 Compromis par. 21.
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A. Hassan Asmir did not invade the body of any of the victims.
The first element of rape as war crime is that the perpetrator must invade the
body of a person by conduct resulting in penetration, however slight, of any part
of the body of the victim or of the perpetrator with a sexual organ, or of the anal
or genital opening of the victim with any object or any other part of the body. The
phrase in the latter sentence is that the perpetrator which is the accused in this
case, Hassan Asmir, must invade the body of the victims. The relevant paragraph
makes no mention of Hassan Asmir to have perpetrated the rape. It is not even
mentioned that he is in the building where the incident happened. In the Krnojelac
case5, the participation of the accused need not involve commission of the specific
crime, but may take the form of assistance in, or contribution to, the execution of
the crime. Also, in the Akayesu and Furundzija cases 6, decisions hold that officials
and leaders can be directly responsible when they witness acts of sexual violence
and rape committed by attackers, even when those attackers are not strictly under
their chain of command. However, in connection with the former case, Hassan
Asmir is neither involved in the commission of rape in this case nor took the
assistance in, or contribution to, the execution of rape. The relevant paragraph
makes no mention of Hassan Asmir in taking assistance in, or contribution to, the
execution of the crime. Also, in connection with the latter cases, officials and
5 Krnojelac, (Appeals Chamber), September 17, 2003, para. 31
6

ICTR, Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, 2 September 1998, ICTY, Prosecutor

v. Anto Furunzija, IT-95-17/1-T, 10 December 1998

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leaders like Hassan Asmir can be directly responsible when they witness acts of
sexual violence and rape committed by attackers, even when those attackers are
not strictly under their chain of command. However, Hassan Asmir didnt witness
the rape committed by the attackers. He is not even found present in the building
where the crime happened. The doctrine of command or superior
responsibility is often misunderstood. It is not a form of objective liability
whereby a superior could be held criminally responsible for crimes
committed by subordinates of the accused regardless of his conduct and
regardless of what his knowledge of these crimes. 7
B. There is no invasion of the body of the victims by Hassan Asmir, hence, there
is no invasion committed by force, or by threat of force or coercion.
The second element of rape as war crime is that the invasion was committed by
force, or by threat of force or coercion, such as that caused by fear of violence,
duress, detention, psychological oppression or abuse of power, against such
person or another person, or by taking advantage of a coercive environment, or
the invasion was committed against a person incapable of giving genuine consent.
There is no invasion of the body of the victims by Hassan Asmir, therefore, the
second element of rape as war crime is not present in this case.
C. There is no conduct of Hassan Asmir that took place in the context of and
was associated with an international armed conflict.
Hassan Asmir did no conduct of rape or any sexual violence against the victims,
therefore, there is no conduct that took place in the context of and was associated
with an international armed conflict. The relevant paragraph did no mention of

7 http://www.peaceandjusticeinitiative.org/implementation-resources/command-responsibility
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Hassan Asmir to have perpetrated the rape. It is not even mentioned that he is in
the building where the incident happened, nor took assistance in, or contribution
to, the execution of the crime.
D. Hassan Asmir was not aware of factual circumstances that established the
existence of an armed conflict.
In Katanga case, the ICC held that the leader of the military group as a party of
the armed conflict was fully aware of the existence of the armed conflict. 8 In this
case, Hassan Asmir was the head of the ADF. He might be aware of the existence
of the armed conflict but it is not mentioned in the compromis that he had
cognizance in the commission of the rape which might be one of the
circumstances that established the existence of the armed conflict, hence, he was
not aware of the factual circumstances of the armed conflict.

Prayer
Wherefore, the defence prays that this Honorable Court, render judgement finding the
accused not guilty of the crime charged.

8 ICC, Prosecutor v. Katanga, ICC-01/04-01/07 (30 September 2008), paras. 385-388.

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