TEAM 1: WRITTEN SUBMISSIONS (PROSECUTION)

Culpability of president

International criminal law not only penalizes persons who actively commit war crimes or issue
orders to that effect, but also covers crimes resulting from a failure to act as required by IHL. In
particular, military commanders have an explicit personal duty to intervene in cases of ongoing
or impending violations of IHL committed by persons acting under their command and other
persons under their control.1. The same duty is also implied for superiors other than military
commanders, such as political leaders or representatives of civilian authorities. Thus, Additional
Protocol I provides that an IHL violation committed by a subordinate does not absolve his or her
superiors of penal or disciplinary responsibility, if “they knew, or had information which should
have enabled them to conclude in the circumstances at the time, that he was committing or was
going to commit such a breach and if they did not take all feasible measures within their power
to prevent or repress the breach.”2

Building on the established criteria by the courts there are 3 elements to prove the contemporary
doctrine of command and superiority that have been established in the instant case namely:

i. the existence of a de facto or de jure superior-subordinate relationship

providing the superior with effective control over the conduct of the
perpetrators;
ii. the superior’s knowledge, or his or her culpable lack thereof, that a crime has
been, or is about to be, committed; and
iii. The superior’s failure to prevent, put an end to, or punishes the crime.

Count 1

With respect to the destruction of the Baobab Tree Sanctuary in Momaayo, the undisputed fact is
that the Commando Battalion flattened and destroyed over 25,000 baobab tree saplings that had
been planted 9 years earlier as part of the Baobab Tree Sanctuary with the excuse of creating a

1
Additional protocol 1 article 87[1].
2
Additional protocol 1 article 86[2], ICH rule 153.]
direct path to the oil access point. 3 It’s the prosecution’s case that the President prosecuted
herein bears the individual criminal responsibility, for ordering, soliciting or inducing the
commission of such a crime which in fact occurred as per Article 25 of the Rome Statute. It was
in execution of the president’s order to secure the access point to the fuel; that led to the
intentionally launching an attack in the knowledge that such attack that caused widespread, long
term and severe damage to the natural environment and proved excessive in relation to the
concrete and direct overall military advantage anticipated in Article 8(2) (b) (iv) of the Rome
Statute. The president is hence implicated and answerable to war crime contrary to:

First, the International Humanitarian Law (IHL) under which the Principle of Distinction which
requires parties to an armed conflict to distinguish between military targets and civilians or
civilian objects. Endangered species, including their habitats, may fall under the category of
civilian objects, and deliberate attacks on them could be considered war crimes. The baobab trees
herein are classified as endangered.

Second the destruction of the baobab trees was contrary to the IHL Principle of Proportionality
that prohibits attacks that may be expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects, or a combination thereof that would be excessive in relation
to the concrete and direct military advantage anticipated. The destruction of endangered species
of baobab was disproportionate to the military advantage and had unfriendly environmental
impact especially on the river which was the source of water for the people hence qualifies to be
a war crime.

Third , that under the Rome Statute of the International Criminal Court (ICC), war crimes
include intentionally directing attacks against civilian objects, including natural resources, that
are not military objectives. The Rome statute provides for any individual, whether a military
commander or a soldier, found to have intentionally targeted endangered species or their
habitats, is held criminally responsible before the ICC for war crimes.

Fourth , that the president is equal answerable to war crimes under International Environmental
Law and specifically the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) whose primary aim is to protect endangered species and their habitats

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during times of peace and conflict. That the deliberate destruction of endangered species of the
baobab by the commandos serving the orders of the president charged herein during the armed
conflict is a prima facie violation of CITES obligations and could lead to individual criminal
responsibility under national law. Further it’s the prosecution’s submission that the destruction is
also a violation of customary international law such as the duty to prevent significant harm to the
environment and is hence invoked to hold the president accountable for the destruction of
endangered species of baobab during armed conflicts.

Count 2

With respect to the introduction of crude oil into the Nadawada River, it’s the prosecutions
submission that the accused person be held criminally liable as the same was executed in
compliance of his orders and in violation of international law. That On the basis of individual
criminal responsibility, 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, there was intentional
disposing of the fuel into the river that caused long-term and severe damage to the natural
environment and was clearly excessive in relation to the concrete and direct overall military
advantage anticipated in Article 8(2) (b) (iv) of the Rome Statute.

The accused herein should bare criminal responsibility as he gave the order for Kissakan troops
to weaken the Momaayo military by filtering existing stores of crude oil into the Nadawada
River. This act meant that, although pristine drinking water remained available to the people of
Kissaka, downstream the oil contaminated the water flowing into Momaayo and pooling at the
Nadawada Lake, thus limiting the RMA’s ability to remain in the border region and access clean
water.4

Under the International Humanitarian Law (IHL), protection of civilians and limiting the effects
of armed conflicts is primary including protection of the environment. That although generally,
the Additional Protocols I and II of the 1977 Additional Protocols to the Geneva Conventions
address the protection of the natural environment in the context of armed conflicts and call for
the prevention and reduction of environmental damage caused by military operations, and they
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emphasize the importance of considering the environment when planning and conducting
military operations.5 It’s evident that the accuse herein was reckless and did not take any
necessary measures.

The prosecution submits that as per Additional Protocol I pursuant to Article 35(3), it is
prohibited to employ methods or means of warfare which are intended, or may be expected, to
cause widespread, long-term, and severe damage to the natural environment. The prosecution
hence avers that President Garba is hence culpable for war crimes as the same happened under
his orders.

Count 3

With respect to the killing of five UN Personnel: On the basis of the responsibility of
commanders and other superiors as per Article 28 of the Rome Statute, President Garba is
culpable of war crime of intentionally directing attacks against personnel involved in
humanitarian assistance or peacekeeping mission in accordance with the Charter of the United
Nations, who are entitled to the protection given to civilians or civilian objects under the
international law of armed conflict under Article 8(2)(b)(iii) of the Rome Statute. 6

It’s our submission that the legal protection of humanitarian groups in armed conflicts is an
essential aspect of international humanitarian law (IHL) in so far as mitigate the effects of armed
conflicts on civilians, and humanitarian organizations is concerned. It’s our submission that the
shooting of the UN personnel was contrary to the provisions of the four Geneva Conventions of
1949 and their Additional Protocols (Protocol I and Protocol II) of 1977. That protection of
individuals extends to protections of humanitarian organizations engaged in providing assistance
and relief to affected populations. That the accused is culpable as his agents acted contrary to:

First, the Principle of Distinction that requires parties to an armed conflict to distinguish between
combatants and military objectives on one hand, and civilians and civilian objects on the other.
Humanitarian groups are considered civilian entities, and their personnel and facilities should not
be targeted during armed conflicts.
5
Article 35 ,Additional Protocol I
6
Article 28 of the Rome Statute
Second, Principle of Proportionality that mandates that military attacks should not cause harm to
civilians or civilian objects that would be excessive in relation to the anticipated military
advantage. It’s our submission that the UN personnel and Humanitarian organizations and their
personnel are covered by this protection, and parties to the conflict must take all feasible
precautions to avoid harm to them.

Third, that the commandos acting on the orders given by the accused ignored Protected Symbols.
The personnel had emblems of a recognized humanitarian organization protected symbols under
the Geneva Conventions. Unauthorized use of these symbols is prohibited, as it could endanger
the safety and security of humanitarian personnel and activities. It’s our submission that the
accused is further culpable for violating rules of Customary International Law that afford
protection to humanitarian groups and their activities.

Count 4

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. It’s our
case that despite direct orders to maintain the peace and only fire if needed in retaliation, First
Lieutenant Diallo ordered his troops to cross the border and attack the border village of Dunanti.
He also ordered his troops to attack 7 Momaayo teen boys who were playing in the Nadawada
River. During this attack, he and his troops killed all 7 boys. In his report of the operation, he
justified his decision by saying that ‘all teen Momaayos grow into aggressive filth like their
fathers’7

It’s our submission that the Rome Statute addresses the war crime of intentionally directing
attacks against the civilian population as such or against individual civilians who are not taking
direct part in hostilities. This provision falls within the broader framework of the Rome Statute,
which is the treaty that established the ICC and provides the legal basis for prosecuting
individuals responsible for the most serious crimes of international concern. Further that the
actions of the military in this instance is considered a grave violation of international

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humanitarian law as it was intentional targeting of civilians which is prohibited under customary
international law and various international conventions.

That individuals who intentionally direct attacks against civilians or civilian populations,
knowing that they are not taking part in hostilities, should be held accountable for war crimes.
The term "intentionally" implies that the perpetrator intended to cause the attack and was aware
of the civilian status of the targeted individuals or population as is the case.

It’s our submission that the President is responsible on the basis of the responsibility of
commanders and other superiors as per Article 28 of the Rome Statute, The war crime of
intentionally directing attacks against the civilian population as such or against individual
civilians not taking direct part in hostilities under Article 8(2) (b) (i) of the Rome Statute. With
regard to the case at hand we submit that indeed president Gabbra meet the three test therefore he
is responsible for the killings of the 170 men and boys in town of Dunati with regard to article 28
of the Rome statute this is because;

i. There existed a superior-subordinate relationship between the president and the

commander and the president was in effective control of the army. superior-
subordinate relationship is proven by indicating whether there has been an effective
control over the army and by taking into cognizance the circumstances of the case
indeed the president was in effective control of the army this is because the army took
orders from him and acted on them this is buttressed by the ICTY chambers which
found Delid, as commander within the BIH Army (ABiH), had effective control over
a group of foreign fighters (the El Mujahedin Detachment, or EMD) for certain
conduct based on EMD compliance with ABiH orders in general.8

ii. That the president had the actual knowledge that the crimes would be committed.
With regard to proof of actual knowledge it can be direct or circumstantial. With
reference to fact pattern no.20 the act of the president commanding the commander to
cross the border and secure the oil points is a sufficient proof that he had a
constructive knowledge that such other acts would happen that he knew that the crime
was actually being committed.

8
Rasim Delid, Case No. IT-04-83-T, Trial Judgment, 15 Sept. 2008]
 iii. The president did not show any effort that he tried to prevent or punish the crime. The
failure to take the necessary and reasonable measures to prevent a crime cannot be
remedied simply by later punishing the subordinate for the crime. The obligation to
prevent or punish does not provide a superior with two alternative options, but
contains two distinct legal obligations to prevent the commission of the offence and
to punish the perpetrators. It is crystal clear that the president is the one who
commissioned the crime by issuing orders to his commanders.

Prayers before the court

We affirm that the ICC has jurisdiction over war crimes committed on the territory of states
parties to the Rome Statute, as well as crimes committed by nationals of those states, regardless
of where the crimes were perpetrated. Additionally, the ICC can exercise jurisdiction when
authorized by the United Nations Security Council or if a non-state party accepts its jurisdiction.

That this honorable court being responsible for investigating and prosecuting individuals
accused of war crimes, including those falling under Article 8(2)(b)(i) of the Rome Statute, with
the aim of ensuring accountability and ending impunity for such serious violations of
international law finds the accused herein guilty of all charges leveled against him.