11 Prosecution

Prosecutor v. Hassan Amir

October 2015

TABLE OF CONTENTS
I.
II.

STATEMENT OF FACTS.......................................................................................................7
PRELIMINARY MATTERS...................................................................................................9
A. THERE IS NO INTERNATIONAL ARMED CONFLICT IN EXISTENCE.
9
1. The Alin Liberation Army is a non-state party.

2. The establishment of the International Security Support Force (ISSF) did not turn the
conflict into an international armed conflict.

11

III.
SUMMARY OF PLEADINGS...........................................................................................12
A. GENERAL AMIR BEARS CRIMINAL RESPONSIBILITY FOR THE WAR CRIME
OF RAPE. 12
B.

GENERAL AMIR BEARS CRIMINAL RESPONSIBILITY FOR THE WAR CRIME

ATTACKING ISSF PERSONNEL INVOLVED IN A PEACEKEEPING MISSION. 12

C.

GENERAL AMIR BEARS INDIVIDUAL CRIMINAL RESPONSIBILITY FOR

SOLICITING THE WAR CRIME OF KILLING AND TREACHEROUSLY WOUNDING

COMBATANT ADVERSARIES. 13
IV.
PLEADINGS......................................................................................................................14
A. COUNT 1: GENERAL AMIR BEARS CRIMINAL RESPONSIBILITY FOR THE WAR
CRIME OF RAPE. 14
1. The ADF committed the war crime of rape against the Alini civilians.

14

2. Rape was committed against persons incapable of giving consent. 14

B.

GENERAL AMIR IS CRIMINALLY LIABLE FOR ADF'S CRIMES UNDER THE

COMMAND RESPONSIBILITY DOCTRINE. 15

1. There is an existence of a superior-subordinate relationship between General Amir and
Colonel Adada. 15

2. General Amir should have known that ADF members were about to commit crime.
15
3. General Amir failed to take necessary and reasonable measures to prevent or punish
criminal acts of the ADF Unit responsible for the rape.
C.

16

COUNT 2: GENERAL AMIR BEARS CRIMINAL RESPONSIBILITY FOR THE WAR

CRIME OF ATTACKING ISSF PERSONNEL INVOLVED IN A PEACEKEEPING

MISSION. 16
1. The ISSF is a peace-keeping mission established under the UN Charter. 16
1. General Amir directed the attack against the ISSF Personnel.

17

2. General Amir intended the attack with knowledge that it was the ISSF Base.

17

3. The ISSF were entitled to protected status under the international law on Armed Conflict.
17
4. General Amir had knowledge of the factual circumstances that established that protection.
18
D. GENERAL AMIR IS INDIVIDUALLY LIABLE FOR THE WAR CRIME JOINTLY
WITH COLONEL ADADA.
E.

18

COUNT 3: GENERAL AMIR BEARS INDIVIDUAL CRIMINAL RESPONSIBILITY

FOR SOLICITING THE WAR CRIME OF KILLING AND TREACHEROUSLY

WOUNDING COMBATANT ADVERSARIES 19
1. The ADF Unit committed the war crime of killing and treacherously wounding the
combatant adversaries. 19
2. The ADF Unit invited the belief of the ISSF Outpost that they were entitled to protection.
19

3. The ADF Unit intended to betray that confidence or belief. 20

4. The said attack killed or injured such person or persons.

20

5. The perpetrator made use of that confidence or belief in killing or injuring such person or
persons. 20
6. Such person or persons belonged to an adverse party.
7. The sixth and seventh elements were fulfilled.
F.

20

21

GENERAL AMIR BEARS CRIMINAL RESPONSIBILITY FOR SOLICITING THE

ATTACK ON THE ISSF OUTPOST.

21

INDEX OF AUTHORITIES

STATUTES
Additional Protocol I, Art 49.................................................................................................16, 20, 21
Article 82e iv, article 4, AP II............................................................................................................13
Rome Statute...................................................................................................................13, 16, 17, 18
OTHER AUTHORITIES
Blacks Law Dictionary, 10th ed. 2014...............................................................................................18
ICTY RULINGS
Akayesu, Trial Chamber................................................................................................................14
Galic, (Trial Chamber), December 5, 2003...................................................................................22
Karadzic and Mladic, First Indictment,.........................................................................................18
Kvocka et al., (Appeals Chamber),................................................................................................14
Kvocka et al., Appeals Chamber February 28, 2005, par. 395......................................................14
Semanza, Trial Chamber................................................................................................................15
Strugar, (Trial Chamber), January 31, 2005..................................................................................22
ICTR RULINGS
Kamuhanda, Trial Chamber...........................................................................................................15
Nahimana, Barayagwiza and Ngeze, (Appeals Chamber), November 28, 2007...........................22

Prosecutor v. Lubanga...................................................................................................................10
ARTICLES
CIHL, Hencaerts, Dormann and Doswald-Beck, 2009.................................................................18
ICRC Commentary on the Four Geneva Conventions of 1949.....................................................10
The Manual on the Law of Non-International Armed Conflict With Commentary......................11
Umesh Palwankar, International Review of the Red Cross, No. 294............................................16

I.

STATEMENT OF FACTS
The Republic of Alin is governed by the Revolutionary Party whose leader, Yousef Aflan,

seats as the President. The Republic's defense force (Alini Defense Force or ADF) is led by
General Hassan Amir. Aflan regime was marred by corruption, abuse of power, arbitrary arrests
and stringent restrictions on political activity and freedom of expression.
In January 2013, around 5,000 Alinis staged an anti-government protest in Orkan City.
They were dispersed by the ADF, killing and injuring protesters on the process. The government
then imposed censorship on anti-government criticisms. Alin Liberation Army (ALA) attacked
the police and security forces and took control of the local administrative council of South
Orkan. The government, through General Amir, launched an attack against ALA. Colonel Adada,
who directly reports and takes order from General Amir, led the attack.
In June 2013, the Alinis staged another anti-government protest in Orkan Town Hall.
They were dispersed by the ADF. Protesters were arrested and killed while others were able to
occupy the National Technical College (NTC). ADF unit entered NTC to carry out search which
resulted to violence. A demonstrator testified that she, together with several other women, was
repeatedly raped by ADF members before being transferred to a detention facility. Two other
women described that they were raped by the soldiers following their arrest and detention.
Human Rights Protection, an international activist NGO, estimated that a number of women
were victims of rape.
In July 2013, the UN Security Council adopted Resolution X which authorizes, among
others, the establishment of an International Security Support Force (ISSF) for the maintenance
of security and protection of civilians from threat of attack in Alin. President Aflan announced
that he would comply with the said resolution.
In September 2013, ISSF arrived and established its base in Alin. There are, however,
some violent confrontations between ISSF and ADF as the latter launches attacks in suspected

Page 7 of 23

ALA bases in civilian areas. In one incident, identified ADF soldiers attacked ISSF base which
injured and killed ISSF personnel.
On 18 October 2013, President Aflan stated that ISSF was deployed to facilitate regime
change and declared it no longer welcome in Alin. Eighteen days later, vehicles approached ISSF
outpost where passengers claimed themselves as civilians. When these vehicles were to be
inspected, the passengers threw explosives killing and injuring ISSF soldiers. Some of the
captured passengers admitted that they were ADF soldiers.
In May 2014, Alin referred the situation in its territory on March to December 2013 to the
ICC.

Page 8 of 23

II.

PRELIMINARY MATTERS
A.

THERE IS NO INTERNATIONAL ARMED CONFLICT IN EXISTENCE.

International Armed conflict exists when there is a resort to armed force between

two States.1 In the case, the armed conflict between Republic of Alin through the Alini
Defense Force (ADF) and the Alin Liberation Army (ALA), would not fall under the
said criteria.
A non international conflict exists when there is protracted armed violence
between governmental authorities and organized armed groups or between such groups
within the state. In the view of the ICTY, for there to be a non- international armed
conflict the two requisites must be present: First, a non-state armed group must carry
out protracted hostilities and second, the said groups must be organized2.
The Alin Liberation Army is a non-state party.
ALA a voluntary force striving for a free Alin through armed struggle being a
militant group within Republic of Alin who attacked the police and security forces in
southern part of Orkan to be recognize 3, is a clear manifestation that ALA is an
organized non state armed group which falls under the category given in the
preceding paragraph.
Speaking generally, it must be recognized that the conflicts referred to are armed
conflicts, with armed forces on either side engaged in hostilities -- conflicts, in short,
which are in many respects similar to an international war, but take place within the
confines of a single country. In many cases, each of the Parties is in possession of a
portion of the national territory, and there is often some sort of front4.
In Lubanga, it established two requisites which should be satisfied to be classified
1

Prosecutor v. Tadic, par. 70

Ibid.

Facts, Par. 5

ICRC Commentary on the Four Geneva Conventions of 1949 p. 36

Page 9 of 23

as non international armed conflict: organization of the party and protraction of the
conflict. There is organization when the following factors are present: the groups
internal hierarchy, the command structure, military equipment availability, ability to plan
and carry out military operations and the extent of military involvement. On the other
hand, protraction is present when these factors are satisfied: seriousness of attacks,
spread over territory, period of time, extent of government forces, mobilization and the
distribution of weapons5. In this case, both requisites are satisfied.
Hence, being a non state armed group, the conflict between Republic of Alin
through (ADF) and the Alin Liberation Army (ALA) would not fall under the concept of
an international armed conflict as established in Common Article II of 1949 Geneva
Convention. Therefore, a non- international armed conflict existed.
Moreover, non-international armed conflicts do not include conflicts in which two
or more States are engaged against each other. Nor do they encompass conflicts
extending to the territory of two or more States. When a foreign State extends its military
support to the government of a State within which a non-international armed conflict is
taking place, the conflict remains non-international in character provided that the foreign
state would not extend military support to an armed group acting against the government
the conflict will become international in character. 6
The establishment of the International Security Support Force (ISSF) did not turn the
conflict into an international armed conflict.
The establishment of ISSF in the Republic of Alin and the participation of the
ISSF in the armed conflict will not result to the existence of an international armed
conflict. Precisely because, they are peacekeeping personnel involved in peace keeping
mission and in accordance with the Charter of United Nations directing an attack against
them is prohibited, as they are also protected with the protection given to the civilians and
civilian object under international humanitarian Law7.
Also, Even if the ISSF participated directly in the armed conflict they do not lose
5

Prosecutor v. Lubanga paras.533,534

The Manual on the Law of Non-International Armed Conflict With Commentary, p. 2

Customary Rules of International Humanitarian Law Applicable in Armed Conflicts of a

Page 10 of 23

their protection as civilians as they are allowed in exceptional circumstances to do so

according to the United Nation Charter. The right of individual or collective selfdefense can be exercised in the event of an armed attack against a Member of the
United Nations. States have to immediately report to the Council the measures taken
and discontinue them as soon as the latter itself has taken the measures necessary for
the maintenance of international peace8.
In the case, ISSF lawfully established the necessity on their direct participation in
the armed conflict being attacked by the other party9.
III.

SUMMARY OF PLEADINGS
A.

GENERAL AMIR BEARS CRIMINAL RESPONSIBILITY FOR THE WAR

CRIME OF RAPE.
There is sufficient evidence to establish substantial grounds that General Amir is
criminally responsible for the war crime of rape committed by the ADF troops under his
command and control on the basis of his failure to discharge his duties as their superior
commander. His liability stems from his failure to monitor and ensure that his troops do
not commit any criminal acts in the performance of their military duties.
B.

GENERAL AMIR BEARS CRIMINAL RESPONSIBILITY FOR

THE WAR CRIME ATTACKING ISSF PERSONNEL INVOLVED IN A

PEACEKEEPING MISSION.
There is sufficient evidence to establish substantial grounds that General Amir
incurs individual criminal responsibility for jointly intending the attack on the ISSF
Personnel involved in a peace-keeping mission, since along with Colonel Adada, he
blatantly disregarded the protection status enjoyed by the said personnel, and still
continued with the attack on the said personnel.

Non-International Character
8

United Nation Charter, Chapter VII Art. 51

Facts, Par. 17 & 23

Page 11 of 23

C.

GENERAL AMIR BEARS INDIVIDUAL CRIMINAL RESPONSIBILITY

FOR SOLICITING THE WAR CRIME OF KILLING AND TREACHEROUSLY

WOUNDING COMBATANT ADVERSARIES.
There is sufficient evidence to establish substantial grounds that General Amir
ordered and solicited the treacherous attack on the ISSF Outpost when he himself
demanded the use of every measure to remove the presence of the international forces. He
issued this demand, despite the knowledge that the said outpost was a protected object,
and the personnel manning the said post were also protected under the Rome Statute.

Page 12 of 23

IV.

PLEADINGS
A.

COUNT 1: GENERAL AMIR BEARS CRIMINAL RESPONSIBILITY FOR

THE WAR CRIME OF RAPE.

All of the requisite elements in the war crime of rape under Article 8(2)(e)(vi of
the Rome Statute are present based on the facts of the case.

The ADF committed the war crime of rape against the Alini civilians.
Rape is prohibited under the international humanitarian law.10 This is considered
as any act of sexual nature.11 In this case, rape was committed by the ADF members
against the Alini civilians.12
Rape was committed against persons incapable of giving consent.
In cases of sexual violence, a status of detention will normally vitiate consent in
such circumstances.13 In this case, the Alini civilians were under detention when rape was
committed against them.14 Hence, the said civilians cannot give genuine consent when
these acts were committed.

10

Article 82e iv, article 4, AP II ; Kvocka et al., Appeals Chamber February 28, 2005, par. 395

11

Akayesu, Trial Chamber ,paras. 5597-598; Musema, Trial Chamber, paras. 220-21, 226-29

12

Facts of the Case, paras. 10-11

13

Kvocka et al., (Appeals Chamber), February 28, 2005, para. 396

14

Facts of the Case, paras. 10-11

Page 13 of 23

B.

GENERAL AMIR IS CRIMINALLY LIABLE FOR ADF'S CRIMES

UNDER THE COMMAND RESPONSIBILITY DOCTRINE.

There is an existence of a superior-subordinate relationship between General Amir and
Colonel Adada.
A superior-subordinate relationship requires a superior is senior to a
subordinate15.Although, in this case a hierarchical structure exists, General Amir is the
head of the ADF,16while Colonel Adada is the ADF commander in Orkan.17 As
commander of a specific unit, Colonel Adada takes direct orders from General Amir.18
General Amir has effective control19 over Colonel Adada.
General Amir should have known that ADF members were about to commit crime.
General Amir had reasons to know that ADF members were about to commit
or were committing the crime since Colonel Adada reports directly to General Amir.20
The criminal conduct of ADF members were known to Colonel Adada as he had
command over them, and enjoyed their loyalty.21
General Amir failed to take necessary and reasonable measures to prevent or punish
criminal acts of the ADF Unit responsible for the rape.
Despite information of criminal conduct by the ADF Unit, General Adada
never took any reasonable measures to prevent or punish said conduct. Instead, General
Amir ordered Colonel Adada to stay vigilant against terrorists.22
15

Semanza, Trial Chamber, par. 401

16

Facts of the Case, par. 1

17

Supra, par. 6

18

Supra

19

Kamuhanda, Trial Chamber, par. 604

20

Facts of the Case, par. 6

21

Supra

22

Supra, par. 11
Page 14 of 23

C.

COUNT 2: GENERAL AMIR BEARS CRIMINAL RESPONSIBILITY FOR

THE WAR CRIME OF ATTACKING ISSF PERSONNEL INVOLVED IN A

PEACEKEEPING MISSION.
1.

The ISSF is a peace-keeping mission established under the UN

Charter.
The UN Peacekeeping forces' mandate is to keep the peace. Although its
establishment is not expressly provided under the UN Charter, its legality is uncontested
especially when it is created by the UN Security Council.23In this case, the main
mandate of ISSF is to keep the peace in Alin, which was also created by the UN Security
Council.24
General Amir directed the attack against the ISSF Personnel.
Attacks are 'acts of violence' against the adversary, whether committed in offense
or defense.25 In this case, an attack against ISSF was committed by ADF under the
direction and control of General Amir. 26Colonel Adadas presence was also established
when he was spotted outside of the ISSF Compound when the attack occurred and a few
days after, General Amir was also present in the area to supervise ADF military
operations.27
General Amir intended the attack with knowledge that it was the ISSF Base.
In relation to criminal conduct, there is intent when the person means to engage in

23

Umesh Palwankar, International Review of the Red Cross, No. 294

24

Facts of the Case, par. 12

25

Additional Protocol I, Art 49, hereinafter AP I.

26

Facts of the Case, par. 15

27

Facts of the Case, par. 17 and 19

Page 15 of 23

the conduct28In this case, when the attack against ISSF personnel occurred 29 it was within
striking area from the presence of Colonel Adada 30. Colonel Adada only takes direct
orders from General Amir.31 Hence, it is clear that General Amir means to engage in
attacking ISSF personnel.
The ISSF were entitled to protected status under the international law on Armed Conflict.
Peace-keeping forces, which are usually professional soldiers, are treated as
civilians because they are not members of a party to the conflict and are deemed to be
entitled to the same protection against attack as that accorded to civilians 32 In this case,
the ISSF is a peace-keeping force mandated to protect civilians. 33It is neither ADF nor
ALA. Hence, it is entitled to protection given to civilians and cannot be the object of a
military attack.
General Amir had knowledge of the factual circumstances that established that protection.
Knowledge means awareness that a circumstance exists 34 In this case; Amir has
knowledge of factual circumstances that ISSF personnel are protected individuals since
President Aflan, who is a close political ally of Amir, consented to the establishment of
ISSF.35 Moreover, there were established communication lines between the ISSF and
General Amir.36

28

Rome Statute, Article 30

29

Facts of the Case, par. 16.

30

Supra, par. 17

31

Supra, par. 6

CIHL, Hencaerts, Dormann and Doswald-Beck, 2009 p. 112 ;and Karadzic and Mladic, First
Indictment, par. 125
33 Facts of the Case, par. 12
32

34

Rome Statute, Art 30(2)(b)

35

Facts of the Case, par. 13

36

Supra, par. 15
Page 16 of 23

D.

GENERAL AMIR IS INDIVIDUALLY LIABLE FOR THE WAR CRIME

JOINTLY WITH COLONEL ADADA.

The accused is individually liable if he commits the crime jointly with another or
through another person37 In this case, Colonel Adada, who swore that he would only take
instructions from General Amir, was spotted outside of the ISSF compound during the
attack.38Moreover, Amir was also seen in Orkan City, his presence there was with the
intent to supervise the attack against ISSF.39
E.

COUNT 3: GENERAL AMIR BEARS INDIVIDUAL CRIMINAL

RESPONSIBILITY FOR SOLICITING THE WAR CRIME OF KILLING AND

TREACHEROUSLY WOUNDING COMBATANT ADVERSARIES
The ADF Unit committed the war crime of killing and treacherously

wounding

the

combatant adversaries.
Based on the facts of the case, all the seven elements of the crime under Article
8(2)(e)(ix) of the Rome Statute are satisfied.
The ADF Unit invited the belief of the ISSF Outpost that they were entitled to protection.
By pretending to be civilians displaced by the fighting,40 the ADF unit were able
to approach and enter the ISSF Outpost and were about to granted shelter by the said
ISSF Outpost personnel.41
The ADF Unit intended to betray that confidence or belief.
After gaining entry to the Outpost, the ADF Unit were asked to submit to an
inspection before they could be allowed to take shelter,42 yet once they entered, they
37

Rome Statute, Art. 25 3 (a)

38

Facts of the Case, pars. 6 and17

39

Supra, par. 19

40

Facts of the Case, par. 22

41

Facts of the Case, par. 23

42

Facts, par. 22
Page 17 of 23

suddenly drove at the members of the outpost and opened fire.43

The said attack killed or injured such person or persons.
The surprise attack resulted in the death of 3 persons and injury to 2 ALA fighters;
and the death of 10 persons and injury of ISSF soldiers.44
The perpetrator made use of that confidence or belief in killing or injuring such person or
persons.
By misinforming the personnel that they were civilians on the run for being ALA
supporters,45 the ADF Unit gained access to the area, and then proceeded to attack the
buildings and personnel through the use of grenades and explosives.46

Such person or persons belonged to an adverse party.

The victims of the surprise attack were members of the Alin Liberation Army
(ALA) and the International Security Support Force (ISSF)47, both actors belonging to the
adverse parties. The ALA fighters became an adverse party as early as 15 March 2013; 48
while the ISSF became an adverse party when it lost its protection status as a civil
defence organization49, when it fired its anti-aircraft machine guns at the ADF fighter jets,
acts which are harmful to the enemy.50

43

Supra, par. 23

44

Supra.

45

Supra, par. 22

46

Supra.

47

Supra, par. 23

48

Supra, par. 5

49

AP I, Art. 65 (1)

50

Supra, par. 15
Page 18 of 23

The sixth and seventh elements were fulfilled.

The said attack was conducted as a part of the military campaign by the ADF
during, and in the context of, an IAC between the ADF and ALA/ ISSF forces. All
of the parties were aware of the existence of the said circumstances.
F.

GENERAL AMIR BEARS CRIMINAL RESPONSIBILITY FOR

SOLICITING THE ATTACK ON THE ISSF OUTPOST.

Soliciting means urging, advising, commanding, or otherwise inciting another to
commit a crime.51 General Amirs issuance of the demand to use measures to end the
illegal occupation of the foreign force52may be deemed as an express solicitation or an
order. With respect to ordering, a person in a position of authority may incur
responsibility for ordering another person to commit an offence, if the person who
received the order actually proceeds to commit the offence subsequently53 The soldiers
present during the staff meeting had an implicit intent to attack the ISSF Outpost, which
was exclusively used for the humanitarian task of providing civilian shelter54, and thus
enjoyed general protection. Amirs denial55 that the said attackers were not within his
control, should not exempt him from liability, since the order need not be given directly
to the individual executing it56 Lastly, it may be inferred from the congratulatory gesture
of Colonel Adada that the said attack was committed in obedience of an order or a
solicitation from General Amir. It may also be inferred from a variety of factors, such as
the location of the superior at the time and the knowledge of that officer of criminal acts
committed under his command.57
51

Blacks Law Dictionary, 10th ed. 2014

52

Facts of the Case, par. 21

53

Nahimana, Barayagwiza and Ngeze, (Appeals Chamber), November 28, 2007, para. 481

54

AP I, Art. 61

55

Facts of the Case, par. 24

56

Strugar, (Trial Chamber), January 31, 2005, par. 331

57

Galic, (Trial Chamber), December 5, 2003, par. 171

Page 19 of 23

Page 20 of 23

PRAYER

It is respectfully prayed for the ICC to confirm the charges against Hassan Amir.
Respectfully submitted,
The Prosecution

Page 21 of 23