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A) INTRODUCTION
Your excellencies, a very good evening.
May it please this honourable court. My name is Weera Premananda, the
defence counsel representing General Reed in the present proceedings.
Working alongside me is my colleague Dumo Nyathi.
Your excellencies,
I will humbly reserve 20 minutes of the courts time in order to present the
general pleadings and to address the arguments for Count 1. The second
and third count will be addressed by my learned colleague.
B) GENERAL PLEADINGS
This counsel will raise two general pleadings in this case. One in relation to
the state of affairs of the conflict in question that there is no international
armed conflict as required by every count of this charge.
Second, this counsel will raise a general defence in favour of General Reed
for the consideration of the court in the very unlikely event that the court
should find that the elements of the counts are fulfilled.
Your excellencies, may I begin addressing the first general pleadings?
Your excellencies, we submit that a state of International Armed
Conflict did not exist in territory of Kebia.
i.
International Armed Conflict
Based on the facts, it is evident that the armed conflict that was
waging is never international as it does not involve two or more
high contracting parties.

The conflict was classified as a non-

international armed conflict, as the armed conflict took place in the

territory of a high Contracting Party between its armed forces and
dissident armed forces, as stated in Article 22 of the First Geneva
Convention. On the facts, the main parties only involved on high
contracting party Alphon. Kebia is not to be construed as a High
Contracting party as it is subjected to the sovereignty of Alphon.
The prosecution had yet to raise reasonable doubt. (Address the
Bethuis blabla contract on Consent of Alphon)
The Peoples army of Bethuis (PAB) were merely acting as support
to the main dissident armed forces led by Neil Bing, the Democratic
Kebian Front (DKF). The facts addresses that there is a conflict

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between the people of Kebia rebelling for liberation from the
Alphonian government.

The uprising was a quest to seek self

determination by the people of Kebia. It was not a conflict between

Bethuis and Alphon over the control of Kebia.
The recognition of Kebia as a part of Bethuis in its constitution does
not affect the status if this conflict as this was done without consent
of Alphon and is obviously an affront and appear as a form of
internal battle with its state sovereignty. Based on the fact
dossier found in Paragaph 11, Kebia was in a quest for
liberation, as On 5 July 2008, Neil Bing declared that "we are
prepared to endure a long and difficult struggle to achieve
freedom"
Although Article 1(4) of Protocol 1 included the applications to
armed

conflicts

to

include

people

fighting

against

colonial

domination and alien occupation and against racist regimes in the

exercise

of

their

of

self-determination,

it

is

stated

in

the

Commentary of Protocol 1 that wars of national liberation do not

come into the ambit of this provision as such an extension would
cause problems of establishing such a conflict to be regarded
internationally. Colonel Bing was a former Alphonian Soldier
as stated in Paragraph 8
Furthermore, the commentary also stated that it is important to
identify the objective of the war to identify if it is an international
armed conflict. The facts are clear that the objective of the Kebians
uprising was to seek for self-determination and is a war of national
liberation.
It is submitted that as the objective of the conflict was to seek selfdetermination and to liberate Kebia from Alphon, it should be
construed as a non-international armed conflict. The prosecution
had not proved beyond reasonable doubt that this is an IAC.

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If there are no further questions from the bench about the establishment of a
non-international internal armed conflict, this counsel will to proceed to the
second general allegations.

The second general allegation is a general defence:

ii.

General Defence Superior Orders

This counsel humbly submit the second general pleading
with

regards

to

individual

criminal

responsibility,

that

General Reed is not criminally responsible for the alleged

crimes by virtue ofsuperior orders pursuant to article 33(1)
(a).
Article 33(1)(a) provides a defence to the alleged perpetrator if the
person was under a legal obligation to follow instructions given by
the Government or the superior in question.

At the time of the conflict, President Arrow was acting in his official
capacity as President of Alphon and appointed General Reed as the
leading commander of the AAF. This counsel submits that this
appointment had made General Reed answerable to President Arrow
and is legally obliged to follow orders.
In the Fact Dossier which can be found in Paragraph 16 of Page 4,
President Arrow also emphasized and had given explicit instruction
to win the war as soon as possible, as he quoted we cannot win
this war quick enough, which an order General Reed was legally
obliged to follow. It is submitted this order by President Arrow
carried specific orders to General Reed to win the war as soon as
possible which included taking the actions that are in question in
the respective counts in this charge.
It is submitted that General Reed was only carrying out his legal
obligations, he should be afforded this general defence in the
unlikely event that the court should find that the counts are proved
beyond reasonable doubt to be satisfied.

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If there are no further questions from the bench with regards to the General
Allegations, this counsel hopes to proceed with the count 1

C) COUNT 1
The defendant is charged with 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 damage 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, with respect to the artillery attack and air strikes on Kebia
between 17 and 18 July 2009.
This counsel submits that the elements of this count are not sufficiently
satisfied, as there are no proof beyond reasonable doubt that covers every
element required.
Your excellencies, according to the elements of crime, there are five
elements which are required to indict the defendant.

In regards to the first element of

i.

Launching the attack

This element of the crime is not contested as General Reed had in
fact approved the list of targets. However, This counsel again
emphasizes that this element is absolved by the general defence
that was raised earlier that of Superior Orders. Genera; Reed at the
time in question were just following the instruction of President
Arrow.

The next element is

ii.

Causing death/damage to civilian objects or civilians that is

excessive to military advantage
In relation to this element, this counsel hopes to break this element
into four aspects:

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a. Identifying the civilian object/military object
i.
Article 13 of Protocol II 1977 (which regulates the
protection of civilians in non international armed conflict)
provides

the

protection

of

civilians

from

military

operations and this extends to objects indispensible to the

survival of the civilian population but not to military
ii.

objects.
The BAS Factory does not provide any necessities that are
essential to the civilian population. It produces metal
objects that are not indispensible to the survival of the
civilian population. At the time in question,the BAS Factory
had changed its status from a civ object, to military
object. The Military Objective is to destroy a military

iii.

object which is the BAS Factory.

The peace garden residence is not indispensible to the
survival of the civilian population as the statement of
facts points to the availability of an evacuation site and is
not afforded protection. The objective of the attack is to
eliminate Neil Bing.

b. Identifying civilian or military personnel

i.
The status of the people injured and lost their lives as
civilians are not contested. However this has to be
evaluated in light of the principle of proportionality. Galic
states that civilian casualties must not be disproportionate
to the concrete and direct military advantage anticipated
before the attack.
c. Military Advantage
i.
The Rules to the ICC stated that military advantage
refers to the advantage anticipated from the military
attack considered as a whole and not only from isolated or
ii.

particular parts of the attack.

The commentary to additional protocols stated that the
concrete and direct military advantage was used in order
to indicate that the advantage must be substantial and

iii.

relatively close
The military advantage would be to recapture Kiesh. In
light of the car bombings taking place in the AAFcontrolled Kebia and the artillery attacks in Rica, it is

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submitted that winning the war and minimizing the deaths
and damage to civilians and civilian objects would be
included in the military advantage.
d. Principle of Proportionality
i.
The Commentary to Protocol II and the Preamble states
that it is an inherent principle of ICC to adhere to
ii.

proportionality.
Both the attack on the BAS Factory and the Peace Garden

iii.

residence is proportionate to the military advantage.

In light of the pressing situations (i.e. car bombings,
bombings in Rica), it is proportionate and reasonable for

iv.

General Reed to react the way he did.

It is necessary at this juncture to highlight General Reeds
state of mind at the time of the attack in order to stop
the escalating fights, General Reed had approved to
attack a BAS Factory that was supposed to be empty of
any workers (inferred from his choice of attacking 30
minutes after working hours) that could possibly be
supplying bombs (which is a reasonable assumption due
to its history); PARAGRAPH 21 and to attack a residential
area where Neil Bing was supposed to be and the civilians
were already evacuated. Precautions had been taken and
therefore the attack was not excessive as his overall
military advantage is to stop the war. PARAGRAPH
22,23( Trained Personells, Advised on how to adjust

v.

fire)
Galic highlights that it is important to measure the guilt of
the perpetrator bearing in mind his state of mind. It is
submitted that in General Reeds perspective and his state
of knowledge indicated that the attack he had intended
was in fact not excessive as his overall military advantage
was to stop the war, and that there were relevant
precautions taken such as the collection of information
and relied on the information of his BEST INTELLIGENCE,
Perry Ash who is the Head Of National Intelligence, and
the switching of artillery attacks to drones. Paragaph 26
(Availability of evacuation site)

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Your excellencies in relation
The next element :
iii.

Which is ,Did not take place in context of international

armed conflict, the counsel reiterates that this element is
the crocs of this element. If it is proved that this not an IAC,
therefore there are no case here. This
Was addressed earlier in the general allegations, would the bench
like a brief reiteration of the arguments presented for this element?

If there are no further questions from the bench, this counsel would like to
present his final submission which is that in the event that the court should find
that the elements are satisfied, this counsel would like to submit that General
Reed should be afforded the defence of:
iv.

Defence of Mistake of fact

In accordance to Article 32 , a defence shall be a ground for
excluding

criminal

responsibility

if

it

negates

the

mental

requirement by the crime.

Due to the fact that General Reed was given insufficient and
incorrect information, and he took all practical precautions, it is
submitted due to a mistake of fact it negated General Reeds mens
rea, and the defence should be afforded to him. Here again the
counsel humbly implore this honourable court to find that General
Reed had taken every reasonable steps to ensure that civilians or
civilian objects are not the objects of attack. General Reed had the
mens rea of eliminating those mistakes and had done so through
the actus reus of deploying his effective intelligence collective
system in his arsenal to reduce collateral damage. PARAGRAPH 26