STATEMENT OF FACTS

Background
The Federal Republic of Toukanov and Hakova was established as a single State after
the Second World War. Its population was composed of believers of two religious groups: the
Bhouba and the Ombri religion. Almost all the Boubhans resided in the state of Toukanov, while
the state of Hakova was predominantly inhabited by Ombrians.
In 2009, Mr. Daniel Arlet, belonging to a radical Boubha party, was elected President of
the Federal Republic. The Boubhan-dominated federal parliament soon declared Boubha as the
official religion of the Federal Republic. In response, the parliament of Hakova proclaimed
independence on 10 April 2009, and established the Republic of Hakova. The Hakovan Defence
Army (HDA) was formed by the Ombrians within the Federal Army who pledged their
allegiance to the Republic of Hakova.
President Arlet refused to recognize Hakova as an independent state. In 5 August 2010,
the federal parliament changed the Federal Republics name to the Boubhan State of Toukanov,
and referred to Hakova as an autonomous region of Boubhan State. The Federal Army was
regrouped as the Toukanov Armed Forces (TAF). General Gerard Vande, the highest-ranking
and senior-most military officer in the TAF, was the TAFs Chief of Defence Staff. By June
2017, 138 countries have recognized Hakova. Nonetheless, it has not been admitted to the
United Nations until the present day.
Kouka is a province of Toukanov, bordering the state of Hakova. It was inhabited by
800,000 Ombrians and 200,000 Boubhans. The Ombrian population in Kouka have been
clamoring for a referendum to decide the future of Kouka, since the independence of Hakova.
The harsher religious policies caused the Ombrian population in Kouka to feel oppressed and
victims of segregation.
The desire to accede to Hakova reached its peak when the district court of Kouka refused
to prosecute a policeman who gunned down and killed a 15-year old Ombrian boy for suspicion
of attacking the policeman, in early March 2014. Tens of thousands of Ombrians protested in the
streets. President Arlet announced a state of emergency, and declared Martial Law on 25 March
2014. A Free Koukan Army (FKA) was organized by Ombrian veterans in Kouka as a resistance
movement. On 20 June 2014, the FKA seized the city of Teria, near the border of Kouka. The
FKA ousted the Boubhan government officials and replaced them with its own government.
 General Vande was known a devout believer Bhouban and was always vocal of his
disdain of the Ombri religion. He has repeated in his personal blog that the Ombri religion must
be eliminated as it constitutes a threat to the Bhoubans, and that all Ombrians must be driven
away.
The Armed Convoy of Lannister Enterprises
General Vande owned 19% of the shares of Lannister Enterprises, one of the biggest
transport companies in Toukanov. Every time Lannister Enterprises trucks arrived in Kouka to
deliver food and medical supplies to its Boubhan residents, confrontations would ensue. On 10
November 2014, a TAF task force consisting of two armored vehicles with .50 calibre machine
guns and a platoon of TAF soldiers escorted a convoy of Lannister Enterprises trucks on their
way to Biro, Kouka. General Vande instructed the task force leader to protect the convoy with
all necessary means. When the trucks entered the FKA controlled area, some unarmed 200
Ombrians attempted to seize the TAF soldiers weapons. The TAF fired a few shots. Shortly
after, gun fires were shot from the middle of the crowd, which killed a TAF soldier and a truck
driver. The TAF soldiers instantly fired back. The armored vehicles also opened fire as the
Ombrians scampered to safety. 10 TAF soldiers and 3 truck drivers were killed, while some 110
Ombrian civilians perished and 30 were injured.
Mutiny and the Large-Scale Sexual Abuses within the TAF
In January 2015, dozens of junior officers and hundreds of soldiers mutinied against
higher-ranking TAF officers. They pledged allegiance to General Vande and demanded that the
TAF engage with the HDA directly. In March 2015, General Vande visited the mutineers camp
and promoted several leaders of the mutiny. He also announced the formation of the Boubha
Guards composed mainly of the mutineers, who shall report directly to the Toukanovan Central
Command, and General Vande.
The Guardian reported that the dissatisfaction of the soldiers with the large-scale sexual
abuse within the TAF was part of the reason for the mutiny. This started on March 2014 when
the TAF was deployed to Kouka. The youngest and physically weakest soldiers were tasked to
perform logistical services such as meal preparation, maintenance of supplies, and medical care
on the wounded. They were regularly raped by higher ranking TAF officers and returning
soldiers. The Guardians report was also confirmed by the Human Rights Watch. This practice

Page 2 of 17
lasted until December 2015. General Vande, however, dismissed his responsibility over the
matter, and claimed that his soldiers were all adults.
Operation Blanc
In June 2015, the UN General Assembly established a Commission of Inquiry on the
Situation in Toukanov, to look into the recent spate of human rights violations. In its preliminary
report dated 27 October 2015, the Commission disclosed the disturbing religious practices of the
TAF under its Operation Blanc. In September 2015, said practices were spread to other parts
of the country. The Operation Blanc which was spearheaded by the Boubha Guards, allowed
them to regain control of parts of Kouka. Under Operation Blanc, residents were compelled to
converge at the central square and to disclose their religion. Those who admitted to be followers
of Ombri, were forced to convert to Boubha, and were required to attend Boubha religious
classes and to visit the sanctuaries thrice a day. Pursuant to the power vested on him under
Martial law, General Vande commanded that those who failed to attend the classes shall be
imprisoned after the fifth day, in unsanitary detention centers. Arrested FKA fighters, Koukan
residents who offended a TAF officer or government official, and more than 80,000 Ombrians,
in the TAF-controlled municipalities were detained.
Under Operation Blanc, religions which sought to practice in public areas were required
to register and secure authorization from the TAF. At present, only the Boubha was registered
and authorized to practice. Thousands of practicing Ombrians in Kouka were arrested and
displaced at the detention centers at the border.
On 6 November 2015, the UN Security Council passed a resolution condemning the TAF
and the Toukanovan government for violation of international humanitarian law and abuses of
human rights, and imposed economic sanctions on Toukanov.
The Present Case Against General Vande
On 28 December 2015, Congressman Caron, member of a moderate reformist opposition
party in the Parliament, was appointed as Interim President. On 28 January 2016, FKA signed a
ceasefire agreement with the TAF, provided that the situation in Kouka from 25 March 2014 to
28 January 2016 be formally referred to the International Criminal Court (ICC). The
Toukanovan government formally referred it to the ICC on 5 February 2016. On 10 May 2016,
the ICC issued a warrant of arrest for General Vande. He was arrested on 12 May 2016, and was
surrendered to the ICC in the Hague on 19 May 2016.
Page 3 of 17
 SUMMARY OF PLEADINGS

A. GENERAL VANDE, UNDER COMMAND RESPONSIBILITY, IS

CRIMINALLY LIABLE FOR VIOLATING THE ICC ROME STATUTE FOR THE
WAR CRIME OF RAPE

1. As the military commander of the battalion of Toukanovs Armed Forces,

General Vande is criminally liable for his failure to react to crimes or for taking
inadequate measures, in spite of his influential position in the TAF and his
demonstrated ability to adopt far-reaching measures under Article 28 of the statute. In
any case, his liability therefor is founded upon the principle of command
responsibility.

2. ICC extends protection under international law to cover war crimes

committed within armed forces. Victims of crimes perpetrated by people on the same
side of an armed conflict should be protected. Hence, the war crime of rape committed
by Senior TAF Soldiers against their young and weak soldiers is clearly within the
courts jurisdiction.

B. GENERAL VANDE IS CRIMINALLY LIABLE FOR VIOLATIONS OF

THE ICC ROME STATUTE FOR ORDERING THE ATTACKS AND
DISPLACEMENTS OF CIVILIANS PERPETRATED BY THE TAF SOLDIERS
AGAINST THE LOCAL OMBRIANS

1. The physical attacks against unarmed civilians, which were committed in the
context of and in association with armed conflict, constitute the war crime of directly
attacking civilians under Article 25 of the Statute. They are liable for violating a
customary norm of IHL- that of distinguishing between civilians and enemy
combatants at all times.
Page 4 of 17
 2. The Operation Blanc is a violation of Article 25 of the Statute. The order of
General Vande of forcing the Ombrians to convert to Boubha, without regard to their
ethnicity and religious beliefs, violates the basic human right of these civilians which
is prohibited by International Humanitarian Law. Furthermore, the presence of a
national unrest does not justify the clear disregard of General Vande of the right of the
civilians to practice their religion, and their transfer to detention centres at the border.
The series of circumstances lead to the inevitable conclusion that such acts amount to
the war crime of forcible displacement.

Page 5 of 17
 PLEADINGS AND AUTHORITIES

I. The contextual elements common to the war crimes charged are present

A. Non-international armed conflict exists in the present dispute

Non- International Armed Conflict exists when there is prolonged conflict between
government authorities and an organized armed group. 1 The minimum level of
intensity of the conflict and organization of the armed group must be satisfied.2

1. The FKA was an organized armed group fighting against the Government of
Toukanov

There is an organization when the armed group is organized to a greater or

lesser degree.3 Indications of organization include; a) command structure; b)
military capacity; c) logistics capacity and d) the ability to speak with one voice.4
In this case, upon the declaration of Martial Law by President Arlet, dozens of
Ombrian veterans in Kouka organised a resistance movement which they named
the Free Koukan Army (FKA) to fight against the police and the Toukan Armed
Forces (TAF), appointing themselves as majors and colonels of the FKA.5 FKA
managed to recruit up to 2,000 men and women to take arms, and obtained light

1
Prosecutor v. Tadic, Decision on the Defence Motion, 2Oct1995, Case No. IT-94-1-AR72, 70.
2
Prosecutor v. Tadic, Trial Judgment, 7May1997, Case No. IT-94-1-T, 562.
3
Prosecutor v. Musema, Judgment, 27 January 2000, Case No. ICTR-96-13-A, 97.
4
People v. Boskoski, Trial Judgment, 10July2008, Case No. IT-04-82-T, [Boskoski],177.
5
Record, 8.
Page 6 of 17
 weapons including assault riffles, grenades and rocket-propelled grenades (RPGS).6
The organization requirement was met.

2. The conflict between the FKA and TAF lasted from March 25, 2014 until
January 28, 2016

Factors considered in assessing the intensity of the conflict include: 1) the

gravity and frequency of attacks; 2) duration and extent of the conflict; 3) subjugation
of towns; 4) intervention by the United Nations; and 5) deployment of government
forces to the crisis area.7
The FKAs operations are acts of open hostility, the conflict between the TAF and
FKA lasted for more than ten months 8 which is a sufficient basis that it was
protracted. 9 The overall dire humanitarian condition in Kouka drew international
attention and was condemned by the UN Secretary-Council which led to the adoption
of a resolution.10 The threshold of intensity was met.

II. General Vande is criminally liable for directing attacks against the Ombrians

In order to make a finding on General Vandes criminal responsibility with the mode of
liability of indirect co-perpetration, the following elements must be fulfilled:
(a) The perpetrator directed an attack, (b) The object of the attack was a civilian
population as such or individual civilians not taking direct part in hostilities, (c) The
perpetrator intended the civilian population as such or individual civilians not taking direct
part in hostilities to be the object of the attack, (d) The conduct took place in the context of
and was associated with an armed conflict not of an international character, and (e) the

6
Record, 9.
7
Boskoski, 194-203.
8
Record, 8 and 28.
9
Prosecutor v. Bemba, Decision, 15June2009, Case No. ICC-01/05-01/08,[Bemba], 235.
10
Record, 24.
Page 7 of 17
 perpetrator was aware of factual circumstances that established the existence of an armed
conflict.11
Launching an attack which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage anticipated, is
prohibited.12

A. General Vande directed the attack against Ombrian civilians

Additional Protocol I defines attack as acts of violence against enemies in offence or

defence. In this case, the TAF soldiers open fired the Ombrians using the armored vehicles
which resulted to the death of 110 Ombrian civilians.13 Such attack did not adhere to the
principles of military necessity, proportionality and distinction in order to minimize civilian
casualties.
General Vande is liable for the directing such attack because he issued a direct Order to
the leader of the task force to adjudge the use of arms without any restriction.14

B. The object of the attack were local Ombrians not taking direct part in the hostilities

Numerous military manuals, including those of States not, or not at the time, party to
Additional Protocol II, stipulate that a distinction must be made between civilians and

11
Elements of Crimes, Article 8(2)(e)(I) 9 September 2002, ICC-ASP/1/3.
12
Rule 14 of the ICRCs 2005 Study of Customary International Humanitarian.
13
Record, 16.
14
Ibid.
Page 8 of 17
combatants and that it is prohibited to direct attacks against civilians. 15 Immunity of civilians
from direct attack is one of the basic rules of international humanitarian law.16

Civilian is defined as "any person who is not a member of armed forces".17 Unarmed
local Ombrians were involved in the attack.18 The Ombrians do not fall on any of the numerous
military manualsdefinition of combatants.19
In order to constitute direct participation, a violent act must not only be objectively likely to
directly cause harm, but it must also be specifically designed to do so in support of one party to
an armed conflict and to the detriment of another.20 The act of the Ombrians approaching the
convoy, attempting to rob the truck, did not constitute an act of directly taking part in hostilities.
The civilians involved were not members of FKA, and the acts were not done to deprive the
Boubhans in the conflict areas of food, water and medical supplies.

C. General Vande intended the local Ombrians not taking direct part in hostilities to be the
object of the attack

15
See military manuals (ibid., 1034 and 173216), in particular the manuals of France
(ibid., 21 and 188), Indonesia (ibid., 192), Israel (ibid., 25 and 193194), Kenya (ibid.,
197),United Kingdom (ibid., 212213) and United States (ibid., 3334 and 214215).
16
Military Prosecutor v. Omar Mahmud Kassem And Others, Trial Judgment, 13 April, 1969,
Military Court sitting in Ramallah, Israel (ibid., 271).
17
Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to
the adoption of the Additional Protocols, Article 25 (ibid., 706).
18
Record,16.
19
See, e.g., the military manuals of Argentina (ibid., 574), Australia (ibid., 575), Belgium
(ibid., 576), Benin (ibid., 577), Cameroon (ibid., 578), Canada (ibid., 579), Colombia
(ibid., 580), Croatia (ibid., 581582), Dominican Republic (ibid., 583), Ecuador (ibid.,
584),France (ibid., 585586), Germany (ibid., 587), Hungary (ibid., 588), Indonesia
(ibid., 589), Israel (ibid., 590), Italy (ibid., 591592), Kenya (ibid., 593), South Korea
(ibid., 594), Madagascar (ibid., 595), Netherlands (ibid., 596), New Zealand (ibid., 597),
Russia(ibid., 598), South Africa (ibid., 599), Spain (ibid., 600), Sweden (ibid., 601),
Togo (ibid., 602), United Kingdom (ibid., 603) and United States (ibid., 604606).
20
Direct participation in hostilities: Questions and Answers. International Committee of the Red
Cross 02-06-2009 FAQ.

Page 9 of 17
 In the case of Blaskic 21 , the Prosecution maintained that the mens rea which
characterizes all the violations under the Statute is the intentionality of the acts or omissions, a
concept containing both guilty intent and recklessness likeable to serious criminal negligence.
Both were present in this case.
Here, the attempt to rob the Lannister truck by local Ombrians was a usual scenario 22
which enabled the TAF to foresee that the same thing would happen upon the setting off of the
said trucks on 10 November 2014. Despite this knowledge, General Vande still directed the
leader of the task force to protect the convoy with all necessary means 23. General Vande also
exhibited recklessness in issuing an unqualified command by ordering the employment of all
necessary means to protect the convoy.24

D. General Vande was aware of factual circumstances that established the existence of
armed conflict

General Vande was well aware of the existence of armed conflict, being the Chief of the
Defence Staff and the highest- ranking and senior- most military officer in the TAF.25 As early
as 30 August 2014, General Vande declared in front of the cameras of his intention to destroy
the FKA and to eliminate all persons equally associated with the FKA.26

III. General Vande is liable for the war crime of rape on the basis of command
responsibility

A. TAF soldiers committed the war crime of rape

21
Prosecutor v. Blaskic, Judgment, Case No. ICTY-IT-95-14-T, 179.
22
Record, 16.
23
Ibid.
24
Ibid.
25
Ibid, 4.
26
Ibid, 12.
Page 10 of 17
 1. Actus Reus and Mens Rea

Rape is a physical invasion of a sexual nature, committed against a person under

circumstances which are coercive.27 Record shows that since the deployment of the TAF to
Kouka in March 2014, the youngest and weakest soldiers were regularly raped by
higher-ranking TAF soldiers and some senior soldiers returning from the battle until
December 2015. The war crime was substantiated based on direct interviews of the victims
and witnesses.28
Existence of intent and knowledge can be inferred from all relevant facts and
circumstances. The TAF higher-ranking officers acted with intent and knowledge as
evidenced by the fact that the commission of the crime was done repeatedly.29 The rate of
recurrence of the criminal act reveals the TAF higher-ranking officers intention to engage
in the criminal conduct.

2. The war crime of rape extends to cover combatants in the same armed forces

All parties to the conflict should, as a minimum, grant humane treatment to their own
armed forces.30 The chapeau of Article 8(2)(e) enumerates the crimes therein as being
other serious violations of the laws and customs applicable in armed conflicts not of an
international character, within the established framework of international law. The fact that
the war crime of rape was committed by persons within the TAF should not be a reason to
deny the victims protection under the law of armed conflict.31
To limit the protection against rape by excluding members of the same armed group
from its coverage, would run counter to the spirit of international humanitarian law, which

27
Prosecutor v. Akayesu, Trial Judgment, 2September1998, Case No. IT-96-23&23/1, 59.
28
Record, 18.
29
Record, 18.
30
Common Article 3 of the Geneva Conventions, Protocol II to the Geneva Convention
31
Prosecutor v. Ntaganda, Confirmation of Charges, 9June2014, Case No. ICC-01/04-02/06.
Page 11 of 17
 aims to mitigate the suffering resulting from armed conflict, without banning belligerents
from using armed force against each other or undermining their ability to carry out effective
military operations.

B. General Vande bears command responsibility under Article 28 of Rome Statute

A military commander or person effectively acting as a military commander shall be

criminally responsible for crimes within the jurisdiction of the Court committed by forces
under his effective command and control or effective authority and control as the case
may be, as a result of his or her failure to exercise control over such forces, where: (i) That
military commander or person either knew or owing to the circumstances at the time, should
have known that the forces were committing or about to commit such crimes; and (ii) That
military commander or person failed to take all necessary and reasonable measures within
his or her power to prevent or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.32

1) General Vande is a military commander having effective command and control over
the TAF soldiers who committed the war crime of rape

Military commander refers to a category of persons who are formally or legally appointed
to carry out a military commanding function.33 Being the highest-ranking and senior-most
military officer of the TAF, General Vande had broad formal powers on the use of force and
command of all military operations by the TAF. 34 Furthermore, he had direct lines of
communication to commanders in the field and both could, and did, issue operational orders.35
Accordingly, he is beyond reasonable doubt to have effectively acted as a military commander.

32
Article 28(a), ICC Rome of Statute.
33
Bemba, 408.
34
Record, 4.
35
Record, 16.
Page 12 of 17
 Command responsibility is predicated on a superiors power to control acts of his
subordinates.36 Indications of effective authority and control include: a) the official position of
the perpetrator; b) power to give orders; c) capacity to ensure compliance; and d) capacity to
order forces under his command to engage in hostilities.37 The military position of General
Vande enabled him to give orders and exact mandatory compliance from his subordinates.

2) General Vande failed to exercise proper control over the TAF which resulted to the
commission of the war crime of rape
A military commander is criminally responsible for the crimes committed by his
subordinates as a result of his failure to exercise proper control over such forces. 38 General
Vande has an affirmative duty to act within and enforce the laws of war.39 Though he was in
material position, he failed to ensure that violations of IHL were prevented.40

3) General Vande, owing to the circumstances at the time, should have known that TAF
soldiers were committing the crime of rape

The should have known standard, is a form of negligence41, satisfied by the failure of the
commander to acquire knowledge of his subordinates illegal conduct42. It requires an active
duty on the part of the superior to take the necessary measures to secure knowledge of the

36
Prosecutor v. Hadzihasanovic and Kubura, Trial Judgment, 15March2006, Case no.
IT-01-47-T, 80, 795.
37
Bemba, 417.
38
Bemba, 419.
39
Prosecutor v. Delalic, Trial Judgment, 16November1998, Case No. IT-96-21-T, 721.
40
Record, 18.
41
Bemba, 429.
42
Bemba, 432.
Page 13 of 17
conduct of his troops43 and to inquire, regardless of the availability of information at the time of
the commission of the crime.44
General Vande is duty bound to initiate measures to secure reports that military actions were
carried out in accordance with international law.45 Reports broadcasted to the public regarding
the occurrence of the crime from Human Rights Watch and international media were left
unheeded.46 General Vande cannot implore the defence of ignorance where the absence of his
knowledge is the result of negligence in the discharge of his duties.47
General Vandes verbatim response to an interview of the Guardian48 is already a sufficient
manifestation that indeed he was aware of the cases of rape within his troops but chose to
disregard the same.

4) General Vande failed to prevent or repress the commission of the war crimes or
submit the matter to competent authorities for investigation and prosecution

A commander is liable under 28(a) of the Rome Statute for failing to take measures within
his material possibility and the assessment depends on the superiors degree of effective control
over his forces at the time his duty arises.49 This duty required General Vande to take active
steps in order to ensure that perpetrators are brought to justice50 and must not go unpunished51.

43
Prosecutor v. Kayishema and Ruzindana, Trial Judgment, 21May1999, Case No.
ICTR-95-1-T, 227.
44
Sliedregt, supra notw 28, at 186; Summary Record of the 7 sf Meeting of the Committee of
the Whole, UN Doc. A/CONF. 183/C.1/SR.1, 67-82.
45
Prosecutor v. Strugar, Trial Judgment, 31January2005, Case No. IT-01-42-T, 374.
46
Record, 18.
47
Bemba, 43-S6.
48
Record, 18.
49
Bemba, 443.
50
Bemba, 442.
51
Rome Statute, Preamble, 4.
Page 14 of 17
He never did. His dismissive response to an interview of The Guardian was a blanket
condonation of the acts of his troops.

IV. General Vande is criminally liable in ordering the displacement of the Ombrians

A. General Vande ordered the displacement of Ombrian Civilians

Within Operation Blanc, there was an explicit order by General Vande that anyone who did
not attend Boubha religious classes three times a day would be imprisoned after the fifth day of
missing the class. The displaced victims had no genuine choice to remain or leave. They are
imprisoned for not attending Boubha religious classes when they did not have the time to attend
because they had to work long hours.52
By General Vandes Order, more than 80,000 Ombrians in the TAF- controlled
municipalities in Kouka were detained close to the Toukanov-Hakova border, all of which were
located more than 200 km away from the municipalities recently regained by the TAF, by reason
of their religion. The others, for fear of detention, fled to other areas.53 The term displacement
under the APII and ICC Statute makes no distinction between civilians who have fled beyond
the territories of the state or remain within it, classifying the abovementioned scenario to be a
form of displacement.

B. The order of General Vande was neither justified by the security of the local Ombrians
nor by military necessity

The act is not justified by the security of the civilians involved or imperative military
reasons since the civilians involved were displaced on the sole purpose of forcing them to
convert to the Boubha religion.54

52
Record, 21.
53
Ibid.
54
Ibid.
Page 15 of 17
 C. General Vande, as the Minister of Defence, effected the displacement of local
Ombrians by implementing Operation Blanc

There was displacement of civilians as a result of General Vandes order to imprison those
who did not attend the Boubha religious classes, by virtue of the authority vested on him by the
martial law.55 The authority would cover both de jure and de facto authority to carry out the
order.56

D. General Vande was aware of the Armed Conflict between the FKA and the Toukanovan
Government
General Vande under the Toukanovan law, as the Chief of the Defence Staff is the highest-
ranking and senior-most military officer in the TAF.57 General Vande announced himself that
Operation Blanc was his strategy to regain territories previously occupied by the FKA. 58

PRAYER FOR RELIEF

The Prosecution respectfully requests this Honourable Court to confirm

the charges against General Vande.

Respectfully Submitted,

Agents for the Prosecutor

55
Ibid.
56
Henckaerts, Jean-Marie and Doswald-Beck, Louise. Customary International Humanitarian
Law Volume I: Rules. Cambridge, International Committee of the Red Cross.
57
Record, 4.
58
Record, 20.
Page 16 of 17
Page 17 of 17