4Prosecution

Prosecution
vs.
Mona Tammy

October 2016

Page 2 of 18
Table of Contents

Index of Authorities 3
Statement of Facts

Summary of Pleadings
Pleadings

10

Mona Tammy is guilty of the war crime of attacking protected objects

10

Mona Tammy committed breach of duty as head of state to protect and conserve cultural and
natural heritage 10
Tammy failed to safeguard the Cave Temples of Tyra from destruction in the event of an
armed conflict

12

Tammy is guilty of the war crime of attacking civilians

13

Other methods aside from an airstrike should have been considered in planning an attack on
a highly-populated area 13
Tammy has command responsibility for the attack in Osso

14

Tammy bears command responsibility on the Starlight Hospital incident 15

The area being serviced by the Starlight Hospital is in a dire situation to begin with 15
The transfer of hospital personnel to Fodovan military bases is murder by denial of health
care to the wounded and sick of Osso
Conclusion/Prayer for Relief

17

16

Page 3 of 18
Index of Authorities

International Treaties, Conventions and Protocols

Commentary on Article 49 of the 1949 Geneva Convention, 1952. 16
Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954
12
Draft Code of Offences against the Peace and Security of Mankind 16
Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed
Conflict of 1999

10

World Heritage Convention of 1972 10

International Court Case

Situation in Mali (The Prosecutor v. Ahmad Al Faqi Al Mahdi) ICC-01/12-01/15 (24 August
2016) 11

UN Publications
Expert Meeting on Explosive Weapons in Populated Areas: Humanitarian, Legal, Technical and
Military Aspects (June 2015) 14
ICRC Advisory Service on International Humanitarian Law, Command responsibility and
failure to act(April 2014)

14

Page 4 of 18
International Committee of the Red Cross, Health Care in Danger: Making the Case (August
2011) 16
International Committee of the Red Cross, International Humanitarian Law and the Challenges
of Contemporary Armed Conflicts (2011)

14

Miscellaneous
Irina Bokova, Director-General of UNESCO reiterates her appeal for the protection of Syrias
cultural heritage (2013)

10

Kathleen Lawand, Explosive Weapons in Populated Areas [Interview]. In Parties to Conflict

Should Avoid Using Heavy Explosive Weapons in Populated Areas. Retrieved September 08,
2016, from http://blogs.icrc.org/law-and-policy/2016/05/24/explosive-weapons-populated-areasinterview-icrc-head-arms/

13

Peter Maurer, Even wars have limits: Health-care workers and facilities must be protected.
Speech presented at United Nations Security Council Briefing in New York, USA. Retrieved
September 7, 2016, from https://www.icrc.org/en/document/hcid-statement

15

Page 5 of 18

Statement of Facts
Fodava: Politics and Religion
The nation of Fodava has three leading political parties in its parliamentary democratic system:
the Starlight Party (SP), the Freedom Party (FP), and the Party for the Brighter Future (PBF).
Prior to the establishment of the PBF, the government was ruled by the Starlight party.
The Starlight Party-led government constructed a lot of Starlight temples, misallocating the
funds to sectors who needed it the most such as infrastructure and agriculture. Not only this
policy caused Fodava's economic slowdown, it also resulted to tension in the political scene. Due
to this tension, the Party for the Brighter Future is established; and was able to unite people from
various religions, including Ipso Faith, by making economic recovery and reduction of temple
construction as a policy.
On 25 May 2010, PBF leader Mona Tammy was elected president of Fodava. An Ipso Faith
follower, Mrs. Tammy was known for using derogatory terms to criticize followers of other
religions. She then made radical religious policies, which then turned into legislations curbing
religious freedom. Because of this move, opposition groups strengthened its presence, the most
prominent of which is the Warriors of Light, an armed group composed mostly of Starlight Path
followers and was active in areas where the Starlight population was dominant.

Attacks in Tyra and Osso

Since Octber 2011 the Warriors of Light has been battling with the Fodavan military, and by
August 2012 they have taken over 12 districts, including Tyra. On 7 September 2012 Fodavan

Page 6 of 18
military forces launched its campaign to regain control over Tyra; and as such, air surveillance is
conducted over areas suspected to be hideouts of Warriors of Light forces including the Cave
Temples of Tyra, the oldest landmark in the country and a UNESCO World Heritage Site.
On 9 September 2012, regional commander Dan Rambeck reported to Pres. Tammy that Warriors
of Light fighters were seen carrying high-grade weapons in and out of the Cave Temples. She
then called for an emergency meeting on 12 September 2012 with Gen. Rambeck, a religious
advisor and a legal advisor. During that meeting, which started with the chewing of the
prohibited arbola root, Gen. Rambeck suggests launching an attack on the Cave Temples to
uproot the Warriors of Light forces there. Pres. Tammy agrees, and signs the order drafted by
Gen. Rambeck.
The day after the meeting, the Fodavan military attacks the Cave Temples. Despite counterattacks from the Warriors of Light forces, the military succeeded in the attack, causing the
destruction of the Cave Temples in the process. This attack caused not only the defeat of the
Warriors of Light forces in Tyra, but also an uproar among the locals as well as the international
community.
Meanwhile in the capital city of Osso, Col. Peter Tomass received an intelligence report that the
Rose Garden building, located in a Starlight residential area situated near a power plant that was
the only source of electricity in the area, is housing some Warriors of Light forces, and that they
are launching an attack from there. On the morning of 23 September 2012 Col. Tomass ordered
the attack on the building, destroying not only the building but also the nearby power plant as
well. The damage on the power plant caused complete power cut on the area as well as problems
with essential services dependent on the electricity such as the Starlight Hospital.

Taking the Medical Personnel of Starlight Hospital

Page 7 of 18
The medical staff of Starlight Hospital is composed mostly of Starlight Path followers and is
reluctant, if not refusing, to admit people of Ipso Faith. But on 24 September 2012, the Fodovan
military forces conducted an evacuation at the hospital, taking with them 70 out of 100 of the
hospital staff, leaving the young and inexperienced of the roster behind.
Col. Tomass urged the doctors and nurses taken from the hospital to treat their wounded and sick
soldiers due to lack of medical staff and equipment on the part of the Fodovan military forces.
But while these doctors and nurses are at the hands of the Fodovan military, the emergency
services of Starlight Hospital was shut down; and in effect, locals and WOL fighters died or were
left injured without getting medical attention.
A month later, all of 70 doctors and nurses returned to the hospital unharmed. In a press
statement Col. Thomass thanked them for their services and for saving many lives.

End of Hostilities
Pres. Tammy fled the country after her ouster via a coup d'etat in December 2012, and Gen.
Rambeck and Col. Tomass followed suit. On 1 May 2013 Fodava's case was referred to the
International Criminal Court, and after investigation, an arrest warrant was issued against Mrs.
Mona Tammy. Further investigation ensued, and an international manhunt was conducted that led
to Mrs. Tammy's arrest on 20 February 2014.
The Prosecutor pressed charges against Mrs. Mona Tammy, which is now the subject of this case
presented before the Pre-Trial Chamber I of the International Criminal Court.

Page 8 of 18

Summary of Pleadings

I. The attack on the Cave Temples of Tyra which is a UNESCO World Heritage Site constitutes a
breach in a States duty to protect and conserve cultural and natural heritage as embodied in
World Heritage Convention of 1972
When Tammy agreed and signed the order to launch an attack on the Cave Temples of Tyra, it
makes her liable for the breach as then Head of State.
Notice that the World Heritage Convention of 1972 did not provide for any exception by which
breach in of waiver of the obligation can be justified. This reinforces a States utmost obligation
to protect World Heritage Sites such as the Cave Temples of Tyra.

II. The attack on the Rose Garden building is a clear illustration of one of the war crimes defined
in the Rome Statute of the International Criminal Court.
The attack on the Rose Garden building by airstrike should not even be considered as a strategy
to force suspected Warriors of Light forces out of the area. Such move may have been effective
in attaining their goals, but the same strategy caused greater damage; particularly the loss of
hundreds of lives, as well as the destruction of the nearby power plant which caused the
suspension of essential services in the area like the Starlight Hospital.

Page 9 of 18

III. As head of state, Mrs. Mona Tammy bears command responsibility over the act of her
subordinate in withholding medical attention to the wounded and sick in the area by transferring
the majority of Starlight Hospital personnel to the Fodavan military bases.
The transfer of the Starlight Hospital personnel to the Fodavan military bases, at the time where
the hospital is already affected by the destruction of the nearby power plant and the locals could
not travel to the nearest hospital without the risk of being arrested as a Warriors of Light fighter
or supporter, is an act of intentional withholding of medical care to the wounded and sick in
Osso. Such is negligence intended to eliminate the Starlight population in Osso, and therefore
constitutes the war crime of cruel treatment against persons taking no active part in the
hostilities.

Page 10 of 18

Pleadings
A. Mona Tammy is guilty of the war crime of attacking protected objects
1. Mona Tammy committed breach of duty as head of state to protect and conserve
cultural and natural heritage
The attack on the Cave Temples of Tyra 1 which is a UNESCO World Heritage Site constitutes a
breach in a States duty to protect and conserve cultural and natural heritage as embodied in
World Heritage Convention of 1972 and the Convention for the Protection of Cultural Property
in the Event of Armed Conflict of 1954.
The Cave Temples of Tyra, being declared as a World Heritage Site by the UNESCO 2, enjoys the
protection afforded by the above-mentioned conventions and treaties for its preservation.
However, the same conventions and treaties also gives a duty for the convening countries to
ensure "the identification, protection, conservation, presentation and transmission to future
generations of the cultural and natural heritage3" and "the safeguarding of cultural property
situated within their own territory against the foreseeable effects of an armed conflict4".

1Compromis, par. 15
2Compromis, par. 4
3 Article 4, World Heritage Convention of 1972
4 Article 3, Convention for the Protection of Cultural Property in the Event of Armed Conflict of

1954

Page 11 of 18
No less than Irina Bokova, the current Director-General of UNESCO has reiterated the
importance of cultural heritage in promoting and maintaining peace, to wit:
"Amidst conflict and civil strife, heritage provides a much-needed sense of continuity, dignity
and hope in better times, all of which can reinforce the processes of reconciliation."5
When Tammy agreed and signed the order to launch an attack on the Cave Temples of Tyra 6, it
makes her liable for the breach of the aforementioned conventions and treaties as then Head of
State of Fodava.
Notice that the World Heritage Convention of 1972 did not provide for any exception by which
breach in of waiver of the obligation can be justified. This reinforces a States utmost obligation
to protect World Heritage Sites such as the Cave Temples of Tyra.
It must also be noted that the ancient religious buildings and artifacts like the Cave Temples in
Tyra is what MayomboKassongo, legal representatives of the victims in the case of The
Prosecutor v. Ahmad Al Faqi Al Mahdi, describes as symbolic key between the living and the
spirits (in this case, the deities that the Starlight Path followers believe in) which links between
one generation to another. These keys represent a more or less palpable link between a physical
person and the sacred monuments. A relationship with God may be represented symbolically by
this key, the key whereby those who receive it have today become victims, so to speak, as they
remain guardians of spiritual and ancestral values that have been handed down from generation
to generation.7
The same way, the Starlight Path followers suffers the breakage of that link because of the attack
on the Cave Temples. They may be reconstructed and restored with the passage of time, but the
(UNESCO, 2013) Director-General of UNESCO reiterates her appeal for the protection of
Syrias cultural heritage
5

6Compromis, par. 14
7 The Prosecutor v. Ahmad Al Faqi Al Mahdi (Transcript) ICC-01/12-01/15 (24 August 2016)

Page 12 of 18
broken links are still there which, as the victims of the attacks in Timbuktu mausoleums has
relayed to Kassongo, amount to an irreparable justice.8

2. Tammy failed to safeguard the Cave Temples of Tyra from destruction in the event of
an armed conflict
The Second Protocol to the Convention for the Protection of Cultural Property in the Event of
Armed Conflict (1999) stresses further the High Contracting Parties' duty to provide for
safeguard measures to protect cultural property as provided for in The Hague Convention of
1954. These safeguard measures may include "the preparation of inventories, the planning of
emergency measures for protection against fire or structural collapse, the preparation for the
removal of movable cultural property or the provision for adequate in situ protection of such
property, and the designation of competent authorities responsible for the safeguarding of
cultural property"9.
Although the Cave Temples of Tyra is already declared by UNESCO as a World Heritage Site, it
would seem that the administration of Tammy has purposely put its maintenance at the back
burner. Ever since she declared Ipso Faith as Fodava's national religion on 20 November 2010,
she has stopped the construction of Starlight temples and funding for the maintenance of existing
ones, possibly including the Cave Temples in Tyra10.
Furthermore, in planning the attack against the Warriors of Light forces in Tyra, they
immediately decided upon bombing the Cave Temples without even considering other means to
8 Ibid
9 Article 5,

Second Protocol to the Convention for the Protection of Cultural Property in the
Event of Armed Conflict (1999)
10Compromis, par. 8

Page 13 of 18
achieve the same effect while ensuring that the World Heritage Site sustains little to no damage.
A ground troops attack, for instance, can be used as means to weed out suspected Warriors of
Light forces hiding inside the Cave Temples, if that is their intent. This act alone is already a
violation of Article 7 of the Second Protocol of The Hague Convention.

B. Tammy is guilty of the war crime of attacking civilians

1. Other methods aside from an airstrike should have been considered in planning an
attack on a highly-populated area.
The airstrike on the Rose Garden building in Osso 11 is a clear illustration of one of the war
crimes defined in the Rome Statute of the International Criminal Court.
Kathleen Lawand, head of ICRC's Arms Unit, once said that the fact that the enemy is located in
a populated area does not suspend or somehow limit the obligations of the attacking party to
fully respect international humanitarian law, including the prohibition of indiscriminative attacks,
the rule of proportionality in attack, and the obligation to take all feasible precaution in the
choice of means and weapons of warfare.12 Likewise, the fact that the Warriors of Light are
thought to establish their hideout in a populated area such as the Rose Garden in Osso 13 is not an
excuse considering the effect of any armed strategy to the civilians not involved in the conflict.

11Compromis, par. 18
12Lawand,

K. (2016, May 24). Explosive Weapons in Populated Areas [Interview]. In Parties to

Conflict Should Avoid Using Heavy Explosive Weapons in Populated Areas. Retrieved
September 08, 2016, from http://blogs.icrc.org/law-and-policy/2016/05/24/explosive-weaponspopulated-areas-interview-icrc-head-arms/
13Compromis,

par. 16

Page 14 of 18
The aforementioned airstrike should not even be considered as a strategy to force suspected
Warriors of Light fighters out of Rose Garden. Such move may have been effective in attaining
their objective of wiping out the Warriors of Light forces hiding in the area, but the same strategy
caused greater damage; particularly the loss of hundreds of lives, as well as the destruction of the
nearby power plant which caused the suspension of essential services in the area like the
Starlight Hospital.
Like the attack in the Cave Temples of Tyra, in planning the attack in Rose Garden the Fodavan
military forces immediately went for the airstrike route without considering the effects
afterwards, especially on the civilians residing in the area. Furthermore, they did not consider
other means to achieve their intentions while trying to sustain minimum to no damage on the part
of the residential community and the power plant nearby.
The International Committee of the Red Cross has disapproved the use of explosives in
populated areas during warfare since the late 2000s. In its 2011 report entitled International
Humanitarian Law and the Challenges of Contemporary Armed Conflicts, the ICRC states that:
due to the significant likelihood of indiscriminate effects and despite the absence of an
express legal prohibition for specific types of weapons, the ICRC considers that explosive
weapons with a wide impact area should be avoided in densely populated areas.14

2. Tammy has command responsibility for the attack in Osso.

As the Commander-in-Chief, Tammy is aware of the actions of the military. She did not cancel or
alter the attack knowing there is civilian population in the area.

14 As cited in the Report of the Expert Meeting on Explosive Weapons in Populated Areas:

Humanitarian, Legal, Technical and Military Aspects, published June 2015

Page 15 of 18
Commanders and other superiors are criminally responsible for war crimes committed by their
subordinates if they knew, or had reason to know, that the subordinates were about to commit or
were committing such crimes and did not take all necessary and reasonable measures in their
power to prevent their commission, or if such crimes had been committed, to punish the persons
responsible.15
Finally, she is also aware of the civilian population and the ensuing loss of civilian life and
destruction of civilian objects as the result of the attack, as inferred in the statement she made on
national television on 24 September 2012 where she said, "To achieve peace, war is inevitable,
so is loss of life"16.

C. Tammy bears command responsibility on the Starlight Hospital incident

1. The area being serviced by the Starlight Hospital is in a dire situation to begin with
As head of state, Tammy bears command responsibility over the act of her subordinate in
withholding medical attention to the wounded and sick in the area by transferring the majority of
Starlight Hospital personnel to the Fodavan military bases.
During his speech at the UN Security Council briefing on 3 May 2016, ICRC President Peter
Maurer describes vividly the dire medical need of the wounded and the sick who are caught in a
warfare:

15 ICRC Advisory Service on

failure to act, April 2014

16Compromis, par. 19

International Humanitarian Law, Command responsibility and

Page 16 of 18
"In a war, people are injured, malnourished and sick. Yet the greater the need for medical
treatment, the more difficult it is to obtain such treatment, because the few places and people that
can help, come under attack."17
At the time, the Starlight Hospital is already experiencing difficulties in giving medical services
to the locals of Osso due to the destruction of the nearby power plant that was the only source of
electricity in the area.18 Also, the hospital is the only medical facility easily available for the Osso
locals in the area at the time. Because of the ongoing warfare, the locals who were mostly
Starlight Path followers could not leave the area out of fear of being arrested, either as Warriors
of Light fighter or supporter.19
2. The transfer of hospital personnel to Fodovan military bases is murder by denial of
health care to the wounded and sick of Osso.
The transfer of the Starlight Hospital personnel to the Fodavan military bases, at that critical
time, is an act of intentional withholding of medical care to the wounded and sick in Osso. At
that point, the locals of Osso is left without any medical care; what with the Starlight Hospitals
emergency services shut down, and transport of the wounded and the sick to hospitals outside the
area is next to impossible. Such incidents, according to Pres. Maurer, "constitute outright
violations of international humanitarian law"20 and is one of the "abominations and trends that
must be fought."21
Human rights law protects health care at all times, including during internal disturbances. These
laws are binding on all States and parties to conflicts around the world. But they are not always
17 Maurer, P. (2016,

September 7). Even wars have limits: Health-care workers and facilities
must be protected. Speech presented at United Nations Security Council Briefing in New York,
USA. Retrieved September 7, 2016, from https://www.icrc.org/en/document/hcid-statement
18 Ibid
19Compromis, par. 23
20 Ibid
21 Ibid

Page 17 of 18
respected22, as clearly seen in this case. Furthermore, the fact that a person charged with an
offence defined in the Code acted pursuant to order of his Government or of a superior does not
relieve him from responsibility, provided a moral choice was in fact possible to him 23. Therefore,
Tammy, along with Col. Peter Tomass, is liable for the loss of lives in Osso through their acts
that compromised the welfare of the wounded and the sick in the area.

Conclusion/Prayer for Relief

For the foregoing reasons, the Defense respectfully request this Honorable Court to find, adjudge
and declare as follows:
1. That Tammy be held liable for the war crime of attacking protected objects for the destruction
of the Cave Temples of Tyra,
2. That Tammy be held liable for the war crime of attacking civilians for the loss of lives and
destruction of the power plant in Osso, and
3. That Tammy be held liable for the war crime of murder in the concept of command
responsibility for withholding medical care for the wounded and sick in Osso.

Respectfully Yours,

22Health

Care in Danger: Making the Case [PDF]. (2011, August). Geneva, Switzerland:
International Committee of the Red Cross.
23 Article 4 of the Draft Code of Offences against the Peace and Security of Mankind; as cited

in the 1952 Commentary on Article 49 of the 1949 Geneva Convention.

Page 18 of 18

Prosecution Panel