03Defense

THE PROSECUTOR
v.
GENERAL ARTHUR REED

November 2013

TABLE OF CONTENTS
INDEX OF AUTHORITIES
STATEMENT OF FACTS
SUMMARY OF PLEADINGS
PLEADINGS
PRELIMINARY FINDINGS
I. TYPE OF ARMED CONFLICT
A. The conflict between AAF and PAB/DKF forces constitutes an

i
1
5
7
7

international armed conflict.

SPECIFIC CHARGES
I. REEDS INDIVIDUAL CRIMINAL RESPONSIBILITY THROUGH

IMMEDIATE PARTICIPATION, CO-OPERATION, AND

INTERMEDIARY PERPETRATION DO NOT EXIST.
A. Reed did not commit the war crime of excessive incidental death,

10

injury, or damage.
1. As to Element 1, the attack is justified by military necessity and

11

mistake of fact.
2. As to Element 2, the attack was proportional and reasonable.
3. As to Element 3, Reed did not know the attack would cause

12
12

excessive damage.
4. As to Element 4 and 5, an international armed conflict existed.

12

II. REEDS INDIVIDUAL CRIMINAL RESPONSIBILITY THROUGH

13

INSTIGATING DOES NOT EXIST.

A. Reed did not commit the war crime of attacking protected objects.
1. As to Element 1, the attack is justified by tu quoque, duress,

14
14

self-defense, and belligerent reprisal.

2. As to Element 2 and 3, the hospital and the college are military

15

objects.
3. As explained, Elements 4 and 5 exist.

16

III. REED IS LIABLE NEITHER UNDER MILITARY COMMANDER

16

NOR SUPERIOR CRIMINAL RESPONSIBILITY

A. Reed did not commit the war crime of inhuman treatment.
1. As to Element 1, the pain was only incidental
2. As to Element 2 and 3, relating to torture, the detainees were
protected persons and the accused knows.
3. As explained, Elements 4 and 5 exist.
B. Reed did not commit the war crime of torture.

17
17
17
18
18

1. In the absence of the war crime of inhuman treatment, the war

18

crime of torture cannot exist.

2. Even assuming severe pain presence, it was not for obtaining a

18

confession or punishment.
PRAYER

20

INDEX OF AUTHORITIES
I.TREATIES
A.InternationalTreaties
Geneva Convention for the Amelioration of the Condition of the Wounded

7,18

in Armies in the Field (adopted in 1964) 75 UNTS 31 (Geneva

Convention I)
Geneva Convention for the Amelioration of the Condition of Wounded,

7,18

Sick and Shipwrecked Members of Armed Forces at Sea (adopted in 1949)

75 UNTS 85 (Geneva Convention II)
Geneva Convention relative to the treatment of prisoners of war (adopted

7,18

in 1949) 75 UNTS 135(Geneva Convention III)

Geneva Convention relative to the Protection of Civilian Persons in Time

7,18

of War (entered into force 21 October 1950) 75 UNTS 287 (Geneva

Convention IV)
Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts
(adopted 8 June 1977, entered into force 7 December 1979) 1125 UNTS 3

7,8,
15,16,
18

(Additional Protocol I)
B.RegionalTreatiesEuropeanTreaties
ConventionfortheProtectionofHumanRightsandFundamental

15

Freedoms(EuropeanConventiononHumanRights,asamended)(ECHR)
II.STATUTES
1998RomeStatuteoftheInternationalCriminalCourt(adopted17July

11,13,

1998,enteredintoforce01July2002)2187UNTS90(ICCStatutes)

17,18

III.INTERNATIONAL CASES AND DECISIONS

A. International Court of Justice Publications
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
i

(Judgment) [2007] ICJ Rep 26

Military and Paramilitary Activities in and against Nicaragua (Nicaragua

v U.S.)(Judgment)[1986] ICJ Rep 14

B. International Criminal Tribunals for the Former Yugoslavia and Rwanda
Prosecutor v. Jean-Paul Akayesu (Trial Judgment) ICTR-96-4-T (2

13

September 1998)
Prosecutor v. Tihomir Blaki (Trial Judgment) ICTY-95-14 (3 March

13,14

2000)
Prosecutor v. Tihomir Blaki (Appeal Judgment) ICTY-95-14 (29 July

14

2004)
Prosecutor v. Muci, Delic and Lanzo Celebii Camp (Appeal

9,16,

Judgment) ICTY-96-21 (20 February 2001)

Prosecutor v. Zejnil Delalic and others (Trial Judgment) ICTY-96-21-T (16

17
19

November 1998)
Prosecutor v. Stanilav Gali (Trial Judgment and Opinion) ICTY-98-29-T

14

(5 December 2003)
Prosecutor v. Dario Kordic (Trial Judgment) ICTY-95-14/2-T (26 February
2001)
Prosecutor v. Radislav Krsti (Trial Judgment) ICTY-98-33 (22 August
2001)
Prosecutor v. Zoran Kupreki et al. (Decision of Evidence of Good

13,15
9,14
15

Character of the Accused and the Defence of Tu Quoque) ICTY-95-16 (17

February 1999)
Prosecutor v Miroslav Kvocka (Trial Judgment) ICTY-98-30/1- (1 April
1999)
Prosecutor v. Fatmir Limaj et al. (Trial Judgment) ICTY-03-66-T (30

9
11,15,

November 2005)
Prosecutor v. Mladen Naletili & Vinko Martinovi (Trial Judgment) ICTY-

17
7

98-34-T (31 March 2003)

Prosecutor v. Milomir Staki (Appeal Judgment) ICTY-97-24 (22 March

10

ii

2006)
Prosecutor v. Duko Tadi (Appeal Judgment) ICTY-94-1-A(15 July 1999)

7,9

C. International Criminal Court

Prosecutor v. Katanga et al. (Decision on the Confirmation of the Charges)

13

ICC-01/04-01/07 (30 September 2008)

Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of the

13

Charges) ICC-01/04-01/06 (29 January 2007)

D. European Court of Human Rights
Ireland v. The United Kingdom (5310/71) [1978] ECHR 1 (18 January

18

1978)
IV. NON-GOVERNMENTAL AND OTHER INTERNATIONAL
ORGANISATIONS
A. United Nations Documents
UNGA Report of International Law Commission on the Work of its Forty-

13

Eighth Session UN GAOR, 51 Sess, Supp. No. 10, U.N. Doc. A/51/10
(1996)
B. International Yearbooks
Greek Case, 1967 (1972) 12 European Yrbk C of E 186

18

V.BOOKS
AmbosK,IndividualCriminalResponsibilityinOttoTriffterer(ed.)

9,10,

CommentaryontheRomeStatuteoftheInternationalCriminalCourt,

14

BadenBaden:NomosVerlagsgesellschaft(1999)
BotheM,PartschKJ,SolfW,NewRulesforVictimsofArmedConflicts:

11

commentaryontheTwo1977ProtocolsadditionaltotheGeneva
Conventionsof1949TheHague(MartinusNijhoffPublishers1982)
EserA,IndividualCriminalResponsibilityinAntonioCassese,Paola
Gaeta&JohnR.W.D.Jones(eds.),TheRomeStatuteoftheInternational

iii

9,10,
12,13,

CriminalCourt:ACommentary,Vol.1784(OxfordUniversityPress,
2002)
KalshovenF,BellgerentReprisals(Leiden,Sijthoff,1971)
TrifftererO,Article32,inOttoTriffterer(ed.)CommentaryontheRome

14
11,15
11

StatuteoftheInternationalCriminalCourt:Observers'Notes,Articleby
Article,(HartPublishingOxford1999)
Williams G, Textbook of Criminal Law (London, Stevens, 2nd ed.

15

1983)
VI.JOURNALARTICLES
CarnahanB,Lincoln,LieberandtheLawsofWar:TheOriginsand
LimitsofthePrincipleofMilitaryNecessity[1998]92AJIL213
KalshovenF,BelligerentReprisalsRevisited[1990]21NYIL44
WerleGandJessbergerF,UnlessOtherwiseProvided:Article30ofthe

11
11
17

ICCStatuteandtheMentalElementofCrimesunderInternational
CriminalLaw[2005]3JICJ35
VII.ONLINE
InternationalCriminalCourt(ICC),ElementsofCrimes(2011)
<http://www.refworld.org/docid/4ff5dd7d2.html>accessed29September
2013

iv

12,13

STATEMENT OF FACTS
Distinct sovereigns
Alphon and Bethuis are distinct independent states.
Alphons Challenge
Alphons population comprises a mixture of Alphonians and Bethuisians in Kebia,
southeastern Alphon that borders Bethuis. They vary in language and religion. It enjoys
economic growth through high-tech industry policies. But Kebia straggles development
due to its remote location. Thus, Bethuisians felt marginalized and begrudged the
government.
But Alphon tried leveling disparities until hope ignited upon the discovery of rare
and high-tech-industry-significant metal called "urie" in Kebia. Bethuisians thought they
would not profit from its exploitation. Consequently, the idea of reuniting with Bethuis
intensified.
Bethuis opportunistic scheme
Bethuis shared the same language and culture with Bethuisians in Kebia. Bethuis
worsened the Kebian mentality against Alphon by identifying Kebia as its lost
province. The Bethuis urged Alphon to hold a referendum on Kebias future. With urie
deposits discovery, Bethuis became fiercer on Kebias right to self-determination.
Bethuis pampers Kebia's tantrums
The Bethuisian People's Movements (BPM) accelerated in Kebia. Neil Bing,
BPMs leader conferred Colonel rank by the Bethuisian National Assembly (BNA),
regularly discussed the future of the BPM with Bethuis. Bing deepened Kebian animosity
against Alphon by impressing that its government greedily exploited Kebias resources.
Bing recruited people to form the paramilitary group Democratic Kebian Front"
(DKF). Through the support of Bethuis, Ventures, a Citrea-based multinational security
and military company, was hired to train recruits and weapons were supplied to the DKF.
In June 2008, with the killings caused by mass BPM demonstrations, Alphon
Page 1 of 20

condemned Bethuis intervention in Alphons internal affairs, reiterating Kebia as an

integral part of Alphon.
Because of this instability, Alphon declared Kebia under a state of emergency and
posted several AAF units under the command of Gen. Arthur Reed. Bethuis responded by
reinforcing its military presence at the border.
The DKF seized local government buildings in Kebia and attacked military
compounds in Kiesh, Kebias main city. Bethuis sent 2000 troops from the People's Army
of Bethuis (PAB) led by Col. Ian Rose. Within three days, the DKF/PAB, gained control
over Kiesh and eastern Kebia and 2000 new PAB troops were stationed in Kiesh.
In AAF-controlled Kebia, there were civilian casualties, including soldiers.
Suspected "terrorists" were arrested and detained in the Westwood Prison where Jackson
Wall was prison warden.
Alphons responsible exercise of sovereignty
Alphon approved "Operation Thunderstorm" on 15 December 2008, aiming to
regain control over eastern Kebia, of which Reed was in charge of. Defense Minister Tom
Atom; the Head of National Intelligence Agency (NIA), Perry Ash; Reed; his deputy, Col.
Harvey Simms; and other military staff agreed that recapturing Kiesh was the utmost
priority.
Meanwhile, the DKF/PAB units seized Kiesh, established a command center in a
local government building, and made Kiesh their control center for communication and
logistics. They conducted artillery attacks against Rica, resulting in the death and injury
of civilians to which Alphon declared to reserve all means to react.
At a meeting on 25 February 2009, Ash reported that civilians started to leave
Kiesh to take refuge in the countryside and the implementation of a curfew prevented
movements in the city. Atom warned that given their limited supply of ammunition; they
should act promptly. Reed replied they would use them efficiently. He sanctioned a list of
targets, with detailed coordinates for each, determined on the basis of all available
information. These targets included the DKF/PAB command center, the army barracks,
the main communication center, Bing's residence, and the BAS factory.

Page 2 of 20

Alphons responsible attacks against DKF/PAB

The AAF launched an attack on 17 July, with reconnaissance drones operated by a
Special Unit of the NIA observing targets to assess the damages and advise commanders
how to adjust their fire. At around 6:00 P.M., 12 artillery shells landed on the BAS
factory compound where the normal working hours were 9:00 A.M. -5:30 P.M.
The next day, Ash informed Reed they received reliable information indicating
Bing was in his home, patrolled by a PAB detachment. An evacuation plan secured
locations in case of long-range artillery attacks and a bomb shelter was constructed for
civilians. Ash and Reed agreed to use armed drones to attack Bing's apartment for target
precision.
On the same day, the first and the second missiles were launched. Both hit the
building; however, Bing had already left his apartment at the time of attack. The two-dayattack enabled the AAF to subdue the western part of Kiesh but the rest of the city
remained DKF/PAB-controlled.
Reasonable attacks at the Municipal Hospital
On 20 July, the AAF moved towards the DFK/PAB-controlled Rosemount district.
The next day, the AAF combed the area to eliminate potential threats. Ash informed Reed
that eyewitnesses saw Bethuisian soldiers taking refuge at the Municipal Hospital and
Kebia Military College. Reed deployed a squad to the area, dutifully reminding their
commander "any threat should be eliminated, but non-threatening persons should be
spared.
While the AAF was approaching the Hospital, a Ventures guard fired shots before
his supervisor intervened. After the exchange, the AAF finally entered the hospital. Reed
ordered the wounded to be treated.
Humanitarian treatment of Westwood Prison detainees
The AAF forces eventually subjugated Kiesh despite resistance from the
Bethuisian community. Thomas Mange, an old University of Kebia history professor,
delivered several speeches against Alphon. He and five of his students were arrested and
detained at the Westwood Prison.
Page 3 of 20

While detained, Mange led a hunger strike to which 26 detainees joined.

Nonetheless, the health of detainees was paramount, thus, medical treatment was
provided.
When the professor's health deteriorated, he was placed under medical
supervision and forced feeding. This procedure required inserting a "10 French" tube
through Mange's nose that threaded down into Manges stomach. After every feeding, he
was observed for up to 60 minutes to ensure the prevention of vomiting.
When Mange resumed taking liquid nutritional supplements, 12 other hunger
strikers also ended their strike.

Page 4 of 20

SUMMARY OF PLEADINGS
1. Bethuisian power as ruled in Tadi and the exercise of self-determination under
Article 1(4) of the Additional Protocol I internationalized Kebian conflict.
2. The existence and knowledge of an IAC required in Lubanga and Katanga cases
are insignificant in the absence of other elements.
3. Reed is not guilty of immediate participation, co-perpetration, or intermediary
perpetration absent intention, functional criminal tasks division, and mastermindagent relationship.
4. Reeds attack on the BAS factory and Bings residence were justified by military
necessity and mistake of fact; hence, the absence of required mens rea under
Article 32, ICC Statute.
5. The attacks in Kiesh were reasonable and proportional considering the concrete
and direct overall military advantage foreseeable to Reed.
6. Although a superior-subordinate relationship exists, Reed lacks the mens rea
required in Blaki regarding ordering, soliciting, or inducing another to commit a
crime.
7. Attendance of tu quoque, duress, self-defense, and belligerent reprisal justifies the
attack in the Municipal Hospital and Kebian Military College.
8. Under Article 52(2), Additional Protocol I, Ventures/DKF/PAB effectively
transformed the Municipal Hospital and the Military College to military objects
by purpose and use.
9. Even if Reed is a de jure person of authority as defined in Celebii, the crime
which he should know, prevent, or punish is inexistent.
Page 5 of 20

10. The serious pain caused by forced feeding, being incidental to lawful sanctions, is
not within the purview of inhuman treatment under Article 7(2)(e), ICC Statute.
11. Although the detainees were protected persons under Common Article 3 of the
four Geneva Conventions, inhuman treatment is ruled out, as detainees were
given protection under Article 27 of Geneva Convention IV and Article 51 of
Additional Protocol I.
12. In the absence of inhuman treatment, torture cannot exist as decided by the
European Court of Human Rights in Ireland v. The United Kingdom.
13. Even assuming severe pain existed, no torture was inflicted for obtaining
information, confession, punishment, intimidation or coercion required in Delali.

PLEADINGS

Page 6 of 20

PRELIMINARY FINDINGS
I. TYPE OF ARMED CONFLICT
A. The conflict between AAF and PAB/DKF forces constitutes an international
armed conflict (IAC)
Common Article 2(1) of the 1949 Geneva Conventions, as retained by Article 1(3)
of Additional Protocol I, provides that an armed conflict may arise between two or more
sovereign states.1 But even within a state, it can be internationalized when foreign power
sends troops to oppose the local government.2 Its direction of each individual operation is
not required.3 Overall control is achieved when the foreign state has a role in organising,
coordinating or planning military actions, in addition to financing, training and providing
operational support to that group.4 As ruled in the Nicaragua case, military assistance
constitutes state intervention.5
1

Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in
the Field (adopted in 1964) 75 UNTS 31 (Geneva Convention I), Geneva Convention for
the Amelioration of the Condition of the Wounded in Armies in the Field (adopted in
1964) (Geneva Convention I), Geneva Convention for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted in 1949)
75 UNTS 85 (Geneva Convention II), Geneva Convention relative to the treatment of
prisoners of war (adopted in 1949) 75 UNTS 135 (Geneva Convention III) and Geneva
Convention relative to the Protection of Civilian Persons in Time of War (entered into
force 21 October 1950) 75 UNTS 287 (Geneva Convention IV) Common Article 2(1);
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into
force 7 December 1979) 1125 UNTS 3 (Additional Protocol I) art 1(3).
2

Prosecutor v. Duko Tadi (Appeal Judgment) ICTY-94-1-A(15 July 1999), para 84.

Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ
Rep 26, para 404.
4

Prosecutor v. Mladen Naletili & Vinko Martinovi (Trial Judgment) ICTY-98-34-T (31
March 2003), para 198.
5

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v U.S.)

(Judgment)[1986] ICJ Rep 14.
Page 7 of 20

Led by Bing, BPMs6 paramilitary group, DKF, enjoyed covert military assistance
from the Bethuisian government,7 namely: (1) hiring of Ventures, a Citrea-based
multinational security and military company, to train recruits; 8 (2) trainings in isolated
part of Kebia;9 and (3) supply of weapons.10 On 5 July 2008, Bethuis sent 2000 troops
from the PAB led by Rose to support the DKF.11 Hence, Bethuis intervened in Alphons
internal affairs.12
Moreover, Article 1(4) of the Additional Protocol extended the concept of
international armed conflict to the exercise of their right of self-determination 13 as BPM,
demanded for a referendum on Kebias future.14
SPECIFIC CHARGES
I.

REEDS

INDIVIDUAL

CRIMINAL

RESPONSIBILITY

THROUGH

IMMEDIATE PARTICIPATION, CO-OPERATION, AND INTERMEDIARY

PERPETRATION DO NOT EXIST
Reed is charged under individual criminal responsibility, for committing a war
crime involving the artillery attack and air strikes on Kebia between 17 and 18 July

Compromis (C) 9.

C9.

C9.

C9.

10

C9.

11

C11.

12

C9.

13

Additional Protocol I, art 4.

14

C9.
Page 8 of 20

2009,15 done either through: (1) immediate participation 16perpetration as an

individual, (2) co-perpetration17perpetration jointly with another person, and (3)
intermediary perpetration18perpetration through another person.
The actus reus requires participation in the material elements19 and the head covers
physically perpetrating a crime or engendering an omission. 20 The accused must have
acted with awareness of possible results. 21 In this case, Reed neither intended nor foresaw
any crime or omission. In fact, he managed the use of artillery ammunition in the most
efficient way22 and approved the list of targets for artillery attacks and air strikes, with
detailed coordinates for each target.23 The targets coordinates were carefully determined
through the Alphonian authorities records, pilotless-drones-collected information, and
Kiesh informants.24 Targets were also constantly monitored and artillery spots were
deployed with well-trained artillery personnel.25
15

C47.

16

Albin Eser, Individual Criminal Responsibility, in Antonio Cassese, Paola Gaeta &
John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A
Commentary, Vol. 1 784 (Oxford University Press, 2002).
17

Ibid 771.

18

Kai Ambos, Individual Criminal Responsibility in Otto Triffterer (ed.) Commentary

on the Rome Statute of the International Criminal Court, Baden-Baden: Nomos
Verlagsgesellschaft (1999) 475-492, 478f.
19

Tadi (n 2) para 188; Prosecutor v Miroslav Kvocka (Trial Judgment) ICTY-98-30/1(1 April 1999), paras 250 and 251.
20

Prosecutor v. Radislav Krsti (Trial Judgment) ICTY-98-33 (22 August 2001), para.
601, referring to (Tadi Appeal Judgement), para 188.
21

Prosecutor v. Muci, Delic and Lanzo Celebii (Appeal Judgment) ICTY-96-21 (20
February 2001), para 327.
22

C20.

23

C21.

24

C22.

25

C22.
Page 9 of 20

Even assuming that there was crime, immediate participation requires that the
perpetrator must act on his own.26 But Reeds actions relied mainly on Operation
Thunderstorm.27 He depended on the advise of Atom, Ash, Simms, other military staff, 28
and AAF.29
Trial Chamber II in the Staki case found that co-perpetration does not have support
in customary international law or in the settled ICTY jurisprudence; hence, invalidating
the relevant parts of the Trial Judgment. 30 Granting that it still exists, this mode of
liability, being characterized by a functional division of the criminal tasks between the
different co-perpetrators, who all share the same criminal intent, 31 does not exist in this
case. Operation Thunderstorm, as a valid exercise of sovereignty, merely aimed to regain
control over eastern Kebia.32
Intermediary perpetration is characterized by the predominance of a direct
perpetrator who uses an innocent agent, the indirect perpetrator.33 Reed cannot be
considered as a mastermind who employs superior willpower to have the crime executed
because he planned and consulted with Operation Thunderstorm.34

26

Ambos (n 18) 479; Eser (n 16) 789.

27

C16.

28

C18.

29

C23.

30

Prosecutor v. Milomir Staki (Appeal Judgment) ICTY-97-24 (22 March 2006), para
62.
31

Ambos (n 18) 479 and Eser (n 16) 790.

32

C16.

33

Ambos (n 18) 479 and Eser (n 16) 793f.

34

C18.
Page 10 of 20

A. Reed did not commit the war crime of excessive incidental death, injury,
or damage.
The required elements do not concur. At the ICTY, violations have elements
each of which must be proved by the Prosecution beyond reasonable doubt. 35
Failure means the accused is entitled to an acquittal.36
1. As to Element 1, the attack is justified by military necessity and mistake of
fact. Military necessity always involves a deliberate choice.37 Reeds
choice to launch an attack was justified by the pressing situation, 38 which
led him to react.39 The necessity of the measures he took was
indispensable for securing the ends of the war.40 Unfortunately, many
workers were on overtime41 and Bing had already left his apartment at the
time of the attack. 42 An offender who lacks knowledge of an essential fact
does not posses the mens rea necessary for conviction.43 The
35

Prosecutor v. Fatmir Limaj et al. (Trial Judgment) ICTY-03-66-T (30 November 2005),
para 5.
36

Ibid.

37

Burrus Carnahan, Lincoln, Lieber and the Laws of War: The Origins and Limits of the
Principle of Military Necessity [1998] 92 AJIL 213, 218.
38

C20

39

C20.

40

M Bothe, KJ Partsch, W Solf, New Rules for Victims of Armed Conflicts: commentary
on the Two 1977 Protocols additional to the Geneva Conventions of 1949 The Hague
(Martinus Nijhoff Publishers 1982) 194.
41

C25.

42

C27.

43

1998 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered
into force 01 July 2002) 2187 UNTS 90 (ICC Statutes) art 32; Otto Triffterer, Article
32, in Otto Triffterer (ed.) Commentary on the Rome Statute of the International
Criminal Court: Observers' Notes, Article by Article (Hart Publishing Oxford 1999) 895914.
Page 11 of 20

circumstances qualify as mistakes of fact.44

2. As to Element 2, the attack was proportional and reasonable. Although,
Kiesh sustained damage,45 the attacks constituted concrete and direct
overall military advantage foreseeable to Reed at that time.46 In fact,
reconnaissance drones observed targets, assessed damages, and advised
commanders to adjust their fire.47
3. As to Element 3, Reed did not know the attack would cause excessive
damage. Judgment must be based on information available to the
accused.48 While Reed admitted that collateral damages cannot be
avoided,49 he did not foresee their excessiveness because they planned50
and executed51 the use of their ammunitions most efficiently.
4. As to Elements 4 and 5, an international armed conflict existed. As
submitted under I(A) of the Pleadings, an international armed conflict
existed.52 This armed conflict played a substantial role in the accuseds

44

Eser (n 16) 938.

45

C29.

46

International Criminal Court (ICC), Elements of Crimes

<http://www.refworld.org/docid/4ff5dd7d2.html> accessed 29 September 2013
47

C23.

48

ICC (n 46).

49

C20.

50

C20.

51

C22.

52

Prosecutor v. Reed, Defense Memorial, I(A).

Page 12 of 20

(2011)

decision.53 Reed, being in charge of the operation,54 was aware of the

armed conflict.55
II.

REEDS

INDIVIDUAL

CRIMINAL

RESPONSIBILITY

THROUGH

INSTIGATING DOES NOT EXIST

Reed is charged under individual criminal responsibility, for ordering,
soliciting or inducing,56 another to commit an offense57 the commission of a war
crimeboth express and implied acts and omissions, 58 in relation to the attack against the
Municipal Hospital in Kiesh, on 20 July 2009.59
The mode of ordering a crime presupposes superior-subordinate relationship. 60
This requires proof that a person in authority uses that authority, reasonably implied, 61 to
instruct another to commit an offense. 62 There is no form requirement. 63 The accused
53

Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of the

Charges) ICC-01/04-01/06 (29 January 2007), para 287; Prosecutor v. Katanga et
al. (Decision on the Confirmation of the Charges) ICC-01/04-01/07 (30
September 2008), para 380.

54

C16.

55

ICC (n 46) art 8, Introduction.

56

ICC Statute, art 25(3)(b); Eser (n 16) 795.

57

Prosecutor v. Jean-Paul Akayesu (Trial Judgment) ICTR-96-4-T (2 September 1998),

para 482.
58

Prosecutor v. Tihomir Blaki (Trial Judgment) ICTY-95-14 (3 March 2000), para 280.

59

C47.

60

UNGA Report of International Law Commission on the Work of its Forty-Eighth

Session U.N. GAOR, 51 Sess, Supp. No. 10, U.N. Doc. A/51/10 (1996), 20, para 8.
61

Prosecutor v. Dario Kordic (Trial Judgment) ICTY-95-14/2-T (26 February 2001), para
388.
62

Krstic (n 20), para. 601; Prosecutor v. Stanilav Gali (Trial Judgment and Opinion)
ICTY-98-29-T (5 December 2003), para 168.
63

Blaki (n 58), para 281.

Page 13 of 20

must have the required mens rea64 and he must be aware of his orders consequences. 65
Reed, though an authority,66 had no mens rea when he instructed the squad commander to
spare non-threatening persons.67
Soliciting means to command another person to commit a crime. 68 This is also
absent as Reed instructed only to eliminate legitimate threats.69
Inducing a crime means to affect by persuasion. 70 Superior-subordinate
relationship is not necessary.71 Assuming that any subordinates of Reed committed a
crime, no inducement happened as the only objective of advancing to Rosemount District
was to eliminate potential threats72 only.
A. Reed did not commit the war crime of attacking protected objects.
The required elements do not concur. As explained in I(A) of Specific
Charges, Reed is entitled to an acquittal.73
1. As to Element 1, the attack is justified by tu quoque, duress, self-defense,
and belligerent reprisal. The Ventures guard fired first and his

64

Blaki (n 58), para 282.

65

Prosecutor v. Tihomir Blaki (Appeal Judgment) ICTY-95-14 (29 July 2004), paras
41-42.
66

C10.

67

C33.

68

Ambos (n 18) 480f; Eser (n 16) 796.

69

C33.

70

Ambos (n 18) 480f; Eser (n 16) 796.

71

Ambos (n 18) 480f.

72

C33.

73

Limaj (n 35), para 5.

Page 14 of 20

supervisor intervened.74 Under the principle of tu quoque, AAF can do to

Ventures/DKF/PAB what they did to them.75 Duress was present with no
adequate means of avoiding that threat.76 Self-defense was likewise
present when the AAF acted reasonably77 and proportionately to the
degree of danger,78 which is customary.79 Additionally, the defense of
belligerent reprisal can be invoked. AAF attempted to stop
Ventures/DKF/PAB to make the Municipal Hospital and the Military
College,80 as shield for military attack,81 violating international law.82
2. As to Elements 2 and 3, the hospital and the college are military objects.
The Municipal Hospital and the Military College are clearly military
objects83 because by their use, they make an effective contribution to
military action and whose neutralization, offers a definite military
advantage84 for AAF.
74

C34.

75

Prosecutor v. Zoran Kupreki et al. (Decision of Evidence of Good Character of the

Accused and the Defence of Tu Quoque) ICTY-95-16 (17 February 1999).
76

Ibid, para 16.

77

Glanville Williams, Textbook of Criminal Law (London, Stevens, 2nd ed. 1983) 503.

78

Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (ECHR) Art 2(2).
79

Prosecutor v. Dario Kordic (Trial Judgment) ICTY-95-14/2-T (26 February 2001), para
451.
80

C32.

81

Additional Protocol I, art 12(4).

82

Frits Kalshoven, Belligerent Reprisals Revisited [1990] 21 NYIL 44; Frits

Kalshoven, Bellgerent Reprisals (Leiden, Sijthoff, 1971) 1-44.
83

C33.

84

Additional Protocol I, art 52(2).

Page 15 of 20

3. As explained Elements 4 and 5 exist.

III. REED IS LIABLE NEITHER UNDER MILITARY COMMANDER NOR
SUPERIOR CRIMINAL RESPONSIBILITY
General Reed is charged under responsibility of commanders and other superiors,
with respect to treatment of detainees in Westwood Prison, in particular, forced feeding. 85
These types of command responsibility require: (1) hierarchical relationship, (2) a mental
element, and (3) failure on behalf of the accused to take the necessary and reasonable
measures to prevent the crime or punish the perpetrator.
The existence of a superior-subordinate relationship is characterized hierarchical
relationship86 which exists by virtue of a persons de jure or de facto position of
authority.87 The superiors effective control must be established 88 such that substantial
influence over subordinates is not a sufficient. 89 Thus, criminal responsibility is not
incurred.90 While superior-subordinate relationship exists,91 there is no evidence that Reed
did not have effective control over his subordinates. He even had communication with the
prison warden.92
It must be proved that the superior had actual knowledge or constructive
knowledge.93 As gleaned from the compromise, there is no crime to know, prevent, or
85

C47.

86

Celebii (n 21), para 303; ICRC Commentary on Additional Protocol I, para. 3544.

87

Celebii (n 21), para 193.

88

Celebii (n 21), para 197.

89

Celebii (n 21), para 266.

90

Celebii (n 21), para 197.

91

C10.

92

C39.

93

Celebii (n 21), paras 223, 241.

Page 16 of 20

punish. The detainees were treated ethically and with great care.94
A. Reed did not commit the war crime of inhuman treatment.
The required elements do not concur. As explained in above, Reed is entitled
to an acquittal.95

1.

As to Element 1, the pain was only incidental. The serious pain arose only
from incidental lawful sanctions96 and was committed sans intent. 97 The
act was done for the heath and well-being of Mange98 and other
detainees.99

2.

As to Elements 2 and 3, the detainees were protected persons and the

accused knows. Although the detainees were protected persons,100 inhuman
treatment does not exist in the absence of the first element. The detainees
were even given humane treatment101 and general protection from

military operations.102

94

C42.

95

Limaj (n 35), para 5.

96

ICC Statute, art 7(2)(e).

97

Gerhard Werle and Florian Jessberger, Unless Otherwise Provided: Article 30 of the
ICC Statute and the Mental Element of Crimes under International Criminal Law [2005]
3 JICJ 35.
98

C40.

99

C42.

100

Geneva Convention I, II, III, and IV, Common art 3.

101

Geneva Convention IV, art 27.

102

Additional Protocol 1, art 51.

Page 17 of 20

3.

As explained, Elements 4 and 5 exist.

B. Reed did not commit the war crime of torture.

1. In the absence of the war crime of inhuman treatment, the war crime of
torture cannot exist. Torture covers only intentional infliction of severe
pain.103 It differs from inhuman treatment in the intensity inflicted. 104 The
suffering of detainees105 was only incidental to lawful sanctions. 106 Torture,
an aggravated inhuman treatment,107 presupposes a deliberate inhuman
treatment causing very cruel suffering.108
2. Even assuming severe pain presence, it was not for obtaining a confession
or punishment. The ICTY ruled the following purposes are part of
customary international law: (a) obtaining a confession; (b) punishing
victim: or (c) discriminating against the victim. 109 But none of these was
an objective of Reed.

103

ICC Statute, art 7(2)(e).

104

Ireland v. The United Kingdom (5310/71) [1978] ECHR 1 (18 January 1978) 66.

105

C42.

106

ICC Statute, art 7(2)(e).

107

Greek Case, 1967 (1972) 12 European Yrbk C of E 186.

108

Ireland v. The United Kingdom, 66.

109

Prosecutor v. Zejnil Delalic and others (Trial Judgment) ICTY-96-21-T (16 November
1998), para 459.
Page 18 of 20

PRAYER
The Respondent submits that it has not been proven beyond reasonable doubt that
General Reed committed the crimes as charged. The Respondent hereby requests the Trial
Chamber to declare General Reed not guilty of all the three charges.
RESPECTFULLY SUBMITTED
Counsel for Respondent

Page 19 of 20