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COUNT ONE:

WHETHER THE TRANSFERRING OF ZAMHARTA CIVILIAN POPULATION


INTO THE OCCUPIED TERRITORIES OF KHAWRANSIK BY BRIGADIER
G.KUMANOVA IN THE CASE CAN BE TRIED AS AN OFFENCE OF WAR
CRIME UNDER ARTICLE 8(2)(b)(viii) ?

A. Standard of proof in the confirmation of charges hearing.


1. Pursuant to Article 61(7) of the Rome Statute of the ICC, 1998, the prosecution must

support each charge with sufficient evidence to establish substantial grounds 1 , to

believe that Brigadier G. Kumunova has committed the crimes charged with sufficient

evidence is concrete and tangible evidence which demonstrate a clear line of

reasoning under pining its specific allegations2.

2. That, in the present case the perpetrator in order to prove him liable under Article

8(2)(b)(viii) of the Rome Statute, it is mandatory to establish the requisites of the

above mentioned article, out of which the first element is satisfied( transfer of the

civilian population). The remaining two requisites are not established, because the

crime is committed by a person who does not contemplate the material element with

the requisite mental element, the perpetrator bears primary responsibility for

perpetrating the crime.

B. Conduct took place in the context of and was associated with an international

armed conflict is not established.

3. Applying the terminology in the present case a matter of international criminal law,

has resulted in a situation where “the real villain” in the wake of the crime has been

pigeonholed, “the accomplice” i.e. Mr. H. Zambaza while the principal offender as a

1
Artilce 61(5), Rome Statute
2
Prosecutor v. Germain Katanga and Mathieu Ngubjolo Chui (2008), ICC 01/04-01/07, Pre Trial Chamber 1,
(Decision on the confirmation of charges.)[65]
matter of law would simply be a small cog in the machine 3 . Each mode of

participation in the crime was in a defined form of conduct and an intentional element.

These are commonly referred to as the material and mental elements (or the actus reus

and mens rea) of the mode participation. ZOAK through its order no. 16, of 15th

January 2012 provided for bringing workman from Zamharta to provide training to

local and wiling residence of occupied territory for fulfilling the gap of required

workforce to conduct smooth administration i.e. relevant to state that the conduct of

the perpetrator was only for smooth administration of work because only five percent

of employees turned up to take up their jobs, which affected the excavation of the

mineral resources under the control of perpetrator. It is pertinent to mention here that

aforementioned conduct was not associated with IAC, because main motive of the

perpetrator was to administer the work effectively and efficiently, therefore the

conduct could not be ipso facto regarded as a war crime.

4. That perpetrator is not individually responsible for the war crime as there are 3 subjective

elements which must be satisfied in order to establish perpetrator to be individually

responsible for the war crime4;

a. The accused was aware that by implementing the common plan, the criminal

consequences would “occur in the ordinary course of events”;

b. The accused was aware that he provided an essential contribution to the

implementation of the common plan;

c. The accused was aware of the factual circumstances that established the existence of

an armed conflict, and of the link between these facts and his conduct.

3
W Schabas, Genocide in International Law. The crime of crimes, 2 nd Ed.,(Cambridge University press 2009),
340.
4
Prosecutor v. Thoms Lubanga Dyilo (2012), ICC, ICC-01/04-01/06, Trial Chamber 1, (Judgement pursuant to
Article 74 of the Staute), [1008]
However, perpetrator was not aware of an existence of an armed conflict as his

understanding was that the conduct took place for smooth administration of work, by

the workforce.5

5. Thus, perpetrator is not individually responsible for the war crime as the subjective

elements are not reached.

6. “Ordering” under article 256, requires the superior to have actively contributed to the

crime in question7 therefore, as per the facts pursuant to the present case an order is

required to be drafted, agreed upon and signed by the head of the authority that is Mr. H

Zambava, because perpetrator was receiving salary under the defence head of the budget

of Zamharta8, therefore perpetrator acted on the instructions commanded by the higher

authority which is sufficient to prove that orders passed does not induces the commission

of such crime which in fact occurs or is attempted9.

7. That the perpetrator did not had any effective command and control over the act of

transfer10. Formal designation as a commander should not be considered as a pre-requisite

for command responsibility to attack11, because finality of the order wholly depends upon

the acceptance of Mr. H. Zambawa, perpetrator was the principal administrator of

ZOAK12 . However he was not the de facto military commander who had the “effective

command and control”, and did not execute any order that calls for an evacuation of

civilian population of Khawransik. The qualitative aspect of the superior subordinate

relationship, namely the effectiveness is that perpetrator possessed “the material ability to

5
Para 2, Pg.No. 9, Moot Problem
6
Rome Statute
7
Prosecutor v. Bemba, ICC PT Ch.II, Decision pursuant to article 61(7)(a) and (b) of the Rome Statue on the
charges of the prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, 15 June 2009, §405.
8
Para 1, Pg.no.9, Moot Problem
9
Article 25(3)(b) of the Rome Staute
10
Article 28(a), Elements of Crime
11
Prosecutor v. Mucic et. Al, ICTY T. Ch., 16 November 1998, [370].
12
Para 1, Pg.no.9, Moot Problem
prevent or punish the material conduct of his subordinates” 13 .The perpetrator was the

principal administrator who had “that had substantial influence” or Zamharta military

forces, however he did not have the “material ability to prevent/punished” 14 . The

indicators of effective control are a matter of evidence. 15 In order to evaluate the

effectiveness of the commander’s control, it is hence necessary to look at the evidence

provided on a case by case basis16. Therefore, in reference to the facts of the present case

perpetrator is under the control of Mr. H which is sufficient to state that conduct, transfer

of population of Khawransik took place through the orders of superior not of perpetrator.

C. THAT THE PERPETRATOR WAS NOT AWARE OF THE FACTUAL

CIRCUMSTANCES THAT ESTABLISHED THE EXISTENCE OF AN

ARMED CONFLICT.

8. Under Article 30 (1) of the Rome Statute, a person has intent where, in relation to a

consequence, that person means to cause that consequence or is aware that it will occur in

the ordinary course of events. In the present case, perpetrator transferred the population

because majority of the employees of Khawransik did not turned up for their job

moreover; the supply of raw materials to the industries of Zamharta from the mines of

Khawransik started dwindling17, which reached almost half from their previous record.

Furthermore, due to lack of material, ten heavy industries of Zamharta were shut down in

2010 which caused severe economic strain to Zamharta and worsened the condition of

unemployment.

9. Hence, the aforementioned facts indicate that Khawransik developed worst situations to

run and maintain the industries and other associated works, which turned out to be the

13
Prosecutor v. Mucic et al., ICTY A. Ch., Judgement, 20 February 2001, [256].
14
Para 2, Pg.no.9, Moot Problem
15
Prosecutor v. Blaskic (2004), ICTY, IT-95-14-A, Appeals Judgment (“Blaskic”), [69].
16
Prosecutor v. Mucic et al., ICTY A. Ch., Judgement, 20 February 2001, §197
17
Para 2, Pg.no. 8, Moot Problem
main reason for which perpetrator transferred the population into the occupied territories.

Blaskic stated that intention exists where one acts with knowledge or the possibility of

knowing that civilians are being targeted 18 . Thus, there is no criminal intent of the

perpetrator to establish the existence of an armed conflict, to make him accountable for

the same.

10. The ICC found that contributions to the alleged crimes must be “significant”19. In the

present case, the perpetrator didn’t contribute to the alleged international war crime.

When assessing the contribution, it is considered that “whether the person created or

executed the plan?”20 It is pertinent to mention here that on 20th December 2011, war was

initiated against Khawransik by Mr. H. Zambawa in result of which thirty out of sixty

district of Khawransik came under the authorisation control of Zamharta 21 , also it is

crystal clear from the facts that perpetrator had power only in reverence of “orders, rules

and regulations22”, in respect of ZOAK. Furthermore, perpetrator was bound by the acting

control of Mr. H. Zambawa, which is sufficient to state that perpetrator neither created or

executed the plan because aforementioned allegations were committed before his

appointment23.

11.

18
ICTY, Blaskic Trial Judgment, para.180.
19
ICC, Mbarushimana Decision on Confirmation of Charges, para.276.
20
Ibid., para.284.
21
Para 4, Pg.no.8, Moot Problem
22
Para 1, Pg.no.9, Moot Problem
23
Para 4, Pg.no.8, Moot Problem