STATEMENT OF JURISDICTION

It is hereinafter most respectfully submitted that The Prosecutor has approached this
International Criminal Court and he has submitted that it has jurisdiction to exercise this
petition under Article 5 read with Article 13 of the Rome Statute of The International
Criminal Court, 1998. Article 5 (1) states as follows-
The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this
Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.

And Softland is party to The ICC Statute.1

1
1, Page 10, Moot Problem.
Memorandum For The Prosecution

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 PLEADINGS

I. MR. SENGOTA IS GUILTY OF COMMITTING THE WAR CRIME UNDER

ARTICLE 8(2) (e) (iv) OF THE STATUTE OF THE INTERNATIONAL

CRIMINAL COURT FOR THE ACTS COMMITTED ON 20 MAY 2016.

A. Mr. Sengota is responsible for demolition of two Kimochi-Toramis that took place on

20 May 2016

1. The object of the attack was dedicated to religion and art which were not military

objectives

In order to prove the crime charged, it must be proven that:

1. The perpetrator directed an attack.
2. The object of the attack was one or more buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals or places where the sick and
wounded are collected, which were not military objectives.
3. The perpetrator intended such building or buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals or places where the sick and
wounded are collected, which were not military objectives, to be the object of the attack.
4. The conduct took place in the context of and was associated with an armed conflict not of an
international character.
5. The perpetrator was aware of factual circumstances that established the existence of an armed
conflict.2

2
Elements of Crimes, Article 8(2)(e)(iv).
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 The biggest annual festival of Kumis takes place in the second week of July every year.

The festival is spread over three days. During the festival, Kumi people customarily visit

a specific place called 'Kimochi-Torami', means 'Gods resting place' in their language.

There are seven such places in southern Softland. These places are located in the outskirts

of the towns. Kumi people reach their nearest Kimochi-Torami to celebrate their annual

festival. Kimochi-Torami is an open area roughly equivalent to a football stadium. It has

an ordinary fencing of one metre height, just to denote the border of the space. It has

several gates. 26 small houses, which look like huts, and are beautifully and artistically

built in the area. It is believed by Kumis that during the annual festival the Gods would

descend to the ground and reside in these huts. During these three days of the festival

people in groups sing prayers to the Gods. The groups of people who sing these songs are

not formally trained. However, there is an informal system of learning from each other.

These prayers are sung in the form of folk songs. Along with them other performers also

join in chorus. This singing goes on uninterruptedly for three days, with performers

changing after every four hours. The singing has a particular style of its own and goes on

in the form of argumentation.3

Kumis specifically link this form of singing to Kimochi-Toramis. They consider that

there is a spiritual link between the songs and the Kimochi-Toramis. One without the

other does not signify any spiritual value. After the festivities, these places are abandoned

till four weeks before the next annual festival cycle begins. It is believed and followed by

Kumis that when there are no festivities these places should not be visited for the purpose

of maintaining their purity and sanctity. This practice is respected and followed by people

belonging to other ethnicities as well. Despite being practiced only by Kumis, people
3
3 Page 3 Moot Proposition.
Memorandum For The Prosecution

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 belonging to other ethnic groups also visit Kimochi-Toramis during the annual festival to

watch and enjoy the performances. Keeping in view thier cultural and religious

significance, and based on the nomination by the government of Softland, Kimochi-

Toramis are listed on the Representative List of the Intangible Cultural Heritage of

Humanity, under the Convention for the Safeguarding of the Intangible Cultural Heritage

of 2003.4

The Buildings/Structures were regarded and protected as a significant part of the cultural

heritage of Southern Softland. The community in Southern Softland was involved in their

maintenance and used them for their religious practices. At the time of the destruction, all

Kimochi-Toramis in Southern Softland, were classified as world heritage and thus under

the protection of UNESCO, and as many as 7 Kimochi-Toramis situated in Southern

Softland were also themselves protected sites pursuant to the 2003 Convention

concerning the safeguarding of the cultural heritage. It is also apparent from the evidence

that the Buildings/Structures did not constitute military objectives.

The special protection of cultural property5 in international law can be traced back to

Articles 27 and 56 of the 1907 Hague Regulations6 and to the 1919 Commission on

Responsibility, which identified wanton destruction of religious, charitable, educational,

4
1-2 Page 4 Moot Proposition.
5
Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954.,
Art.1
6
Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the
Laws and Customs of War on Land, The Hague, 18 October 1907, Articles 27 and 56 (Article 27 provides: In
sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to
religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded
are collected, provided they are not being used at the time for military purposes). For an even earlier national
codification of this prohibition, see also Instructions for the Government of Armies of the United States in the Field
(Lieber Code), 1863, Articles 35 and 36.
Memorandum For The Prosecution

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 and historic buildings and monuments as a war crime.7 The Geneva Conventions also

recognised the need for special protection of objects like hospitals which are already

protected as civilian objects.8 Subsequent international instruments reflect the enhanced

protection of cultural property, including Additional Protocols I and II to the Geneva

Conventions9 and the Second Protocol to the Hague Convention of 1954.10

The Council also considers that the element of direct[ing] an attack encompasses any

acts of violence against protected objects and will not make a distinction as to whether it

was carried out in the conduct of hostilities or after the object had fallen under the control

of an armed group. The Statute makes no such distinction. This reflects the special status

of religious, cultural, historical and similar objects, and the Chamber should not change

this status by making distinctions not found in the language of the Statute. Indeed,

international humanitarian law protects cultural objects as such from crimes committed

both in battle and out of it.11

7
Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, 14 The American
Journal of International Law 95 (No. 1-2, 1920), p.115.
8
Convention (I) for the amelioration of the condition of the wounded and sick in armed forces in the field, 12
August 1949, Articles 19-23; Convention (II) for the amelioration of the condition of wounded, sick and
shipwrecked members of armed forces at sea, 12 August 1949, Articles 22, 23, 34-35; Convention (IV) Relative to
the Protection of Civilian Persons in Time of War, 12 August 1949, Articles 14, 18 and 19.
9
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 8 June 1977, Article 53; Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8
June 1977, Article 16. Both these protocols make reference to an earlier 1954 Hague Convention. See Convention
for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the
Convention, The Hague, 14 May 1954, Article 4.
10
Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed
Conflict, The Hague, 26 March 1999, Article 15.
11
See para. 14 of the Judgment of The Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15
Memorandum For The Prosecution

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 Article 8(2)(e)(iv) is the non-international armed conflict analogue of Article 8(2)(b)(ix),

applicable in international armed conflict and with nearly identical elements.12 Both

provisions govern the directing of attacks against special kinds of civilian objects,

reflecting the particular importance of international cultural heritage. Article 8(2)(e) sets

forth a contextual component, namely that it applies to armed conflicts not of an

international character that take place in the territory of a State when there is protracted

armed conflict between governmental authorities and organised armed groups.

Mr. Sengota was an eminent scholar and expert of religious affairs; the most competent

and prominent person in MMR when it came to being knowledgeable in religious

matters. Mr. Sengota acted in strict cooperation with the leadership of both occupying

groups and played an active role within the context of the institutions established by

them.13

The evidence demonstrates that initial attempts undertaken also by Mr. Sengota to

discourage the population from following their established practices concerning the

Kimochi Toramis.

On several occasions during the conflict he gave interviews to the media wherein he
clearly stated that most of the practices of Kumi people were anti Mayavar and particularly
their annual festival celebrations at the Kimochi-Torami. He asserted that the Mayavar
religion does not believe in Gods descending down to the ground. It is the people who would
reach the God. Therefore he suggested that the Kumis should stop celebrating their annual
festival and stop attaching any value to Kimochi-Toramis.14

12
The only difference is the nature of the armed conflict in the contextual elements.
13
2, Page 6, Moot Proposition.
14
Ibid
Memorandum For The Prosecution

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 Mr. Sengota was not directly and personally involved in all stages of the destruction

of the Buildings/Structures. He was part of the planning phase as religious expert

and prominent personality in the context of the occupation of MMR as well as of

the preparatory and implementation phase as chief of the Culture department.15

Mr. Sengotas significant and manifold contribution to the destruction of the

Buildings/Structures was supported by the requisite intent and knowledge. The

evidence univocally shows his full awareness both of the factual circumstances

establishing the existence of an armed conflict and of the relationship between this

conflict and the destruction of the Buildings/Structures. Further apparent from the

evidence are Mr. Sengotas awareness of the historic and non-military nature of the

Buildings/Structures, as well as of his prerogatives and powers as chief of the

Culture department. Mr. sengota acted in full awareness of the protected status of the

Buildings/Structures .

15
1, Page 6, Moot Proposition.
Memorandum For The Prosecution

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II. MR. SENGOTA IS GUILTY FOR CRIME AGAINST HUMANITY OF MURDER
UNDER ARTICLE 7 (1) (A) OF THE ROME STATUTE FOR THE ACTS COMMITTED
FROM 08 JULY 2016 TO 15 JULY 2016.

It is humbly submitted before this Hon'ble Court that Mr. Sengota is guilty of the acts committed
between 08 July 2016 to 15 July 2016 in Southern Softland. The submissions for establishing the
same have been put under following heads: firstly, Mr. Sengota caused the death of one or more
persons as part of a widespread and systematic attack against the civilian population. [A];
secondly, Mr. Sengota had command responsibility over cultural security guards. [B]
A. Mr. Sengota caused the death of one or more persons as part of a widespread and

systematic attack against the civilian population.

1. The attacks by cultural security guards under orders of Mr. Sengota was directed against
a civilian population in furtherance of organizational policy of MMR

According to Article 7(2)(a), an attack directed against any civilian population means a course
of conduct involving the multiple commission of acts against any civilian population, pursuant to
or in furtherance of a State or organizational policy to commit such attack. These words are
repeated in the Elements of Crimes.
In the decision pursuant to Article 15 of the Rome Statute on the Authorization of an
Investigation into the Situation in the Republic of Kenya16, the Pre-Trial Chambers have
identified five general elements:
(i) an attack directed against any civilian population, (ii) a State or organizational policy, (iii) the
widespread or systematic nature of the attack, (iv) a nexus between the individual act and the
attack, and (v) knowledge of the attack.
The Pre-Trial Chamber noted that the term civilian is not defined in the Statute but that
according to the well-established principle of international humanitarian law, [t]he civilian

16
Situation in the Republic of Kenya, ICC PT. Ch. II, ICC-01/09-19, Decision Pursuant to Article 15 of the Rome
Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para.
79
Memorandum For The Prosecution

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population () comprises all persons who are civilians as opposed to members of armed forces
and other legitimate combatants.17
The prosecution humbly submits that the attacks by the orders of Mr. Sengota on Kumi people, a
civil population, were part of state or organisational policy of Mayavars for Mayavar Religion
(MMR), as they had vowed to make Mayavar as State religion.
2. The attacks on Kumi people were widespread as well as systematic

The requirement of widespread or systematic is disjunctive.18 With regard to widespread, the

Pre-Trial Chambers have stated that it connotes the large-scale nature of the attack and the
number of targeted persons.19 According to the report of Human Rights Monitor (HRM) on the
attacks over Kumis during their peaceful march, the number of people whose death was caused
by cultural security guards was as much as 56 and more than 500 people went missing. The
attack by cultural guards under order of Mr. Sengota was, hence, widespread.
As for systematic, the Pre-Trial Chambers have stated that this element refers to the organized
nature of the acts of violence and the improbability of their random occurrence. 20 The Pre-Trial
Chamber in the Prosecutor v Gbagbo21clarified thatthe concept of policy and that of the
systematic nature of the attack [] both refer to a certain level of planning of the attack. In
this sense, evidence of planning, organisation or direction by a State or organisation may be
relevant to prove both the policy and the systematic nature of the attack, although the two
concepts should not be conflated as they serve different purposes and imply different thresholds
under Article 7(1) and (2)(a) of the Statute.
The report of Human Rights Monitor has pointed out that during the attack and even after that
the police did not took any action. Also, no security was provided on the routes that had
traversed to reach the Kimochi-Toramis. The prosecution seeks to establish this attack was
organized in nature and was sanctioned by the government formed by MMR. Also, the random

17
Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 78
18
Situation in the Republic of Kenya, ICC PT. Ch. II, ICC PT. Ch. II, ICC-01/09-19, Decision Pursuant to Article 15
of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March
2010, para. 94
19
Prosecutor v Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the confirmation of
charges, 30 September 2008, para. 394
20
Prosecutor v Kunarac et al., IT-96-23 & 23/2, ICTY A. Ch., 12 June 2002, para. 94
21
Prosecutor v Gbagbo, ICC PT. Ch. I, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-
02/11-01/11-656-Red, 12 June 2014, para. 223
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occurrence of such attack was highly improbable which shows that the attacks were planned.
Keeping these facts in view the prosecution establishes that the attacks were systematic in nature.
The prosecution humbly submits that the attacks by the orders of Mr. Sengota on Kumi people
were widespread as well as systematic.

Memorandum For The Prosecution

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 PRAYER

Wherefore in light of the questions presented, pleadings and authorities cited, the Prosecution
respectfully requests this Court to adjudge and declare that:

I. Mr. Sengota be found guilty of committing the war crime under article 8(2) (e) (iv) of

the Statute of the International Criminal Court for the acts committed on 20 May

2016 and be sentenced according to Art. 76 and penalty imposed as per Art. 77 of the

Rome Statute.

II. Mr. Sengota be found guilty of committing the crime against humanity of murder

under article 7 (1) (a) of the Statute of the International Criminal Court for the acts

committed from 08 July to 15 July 2016 and be sentenced according to Art. 76 and

penalty imposed as per Art. 77 of the Rome Statute.

Respectfully Submitted

Sd/-

Counsel for Prosecution

Memorandum For The Prosecution

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