DEFENSE

III. COLONEL RIVIA IS NOT LIABLE FOR THE WAR CRIME OF DECLARING THAT
NO QUARTER WILL BE GIVEN, UNDER ART. 8(2)(b)(xii)

A. NOT ALL ELEMENTS OF THE WAR CRIME ARE PRESENT

The war crime is committed when (1) a declaration of no quarter was made, (2) to threaten an
adversary or to conduct hostilities, (3) by a perpetrator in a position of effective command or
control (4) during an IAC.

1. Rivia did not declare that there shall be no survivors.

A declaration of no quarter generally refers to an order that there shall be no survivors.1 It

includes any order of liquidation of prisoners of war, surrenders, and persons hors de combat. 2

Directive 66, which ordered all TAF units in Velen to “take all necessary measures to cut Commented [ANSP1]: Define. Is it really an order? Yes,
off RLF’s means of fighting” (C. 20) is too general and vague to claim that the only reasonable
inference is that it is an order to leave so survivors. In Meyer v Prosecutor, the Judge Advocate
held that where there is no explicit evidence of such declaration is present, circumstantial evidence
may be used. However, it must be shown that the order is inconsistent with any other rational
conclusion other than that the accused ordered to leave nso survivors.3
Formatted: Indent: First line: 0"
Here, the order to “take all necessary measures to cut off RLF’s means of fighting” can
produce various conclusions other than liquidation of survivors. It can mean the use of military
force as strictly limited to what is required by military necessity in order to suppress an uprising
against the Temerian government.

Order should be interpreted unequivocally or literally Commented [ANSP2]: Case: connected with
“inconsistent,” then dapat literally yung take on Directive 66
also.

2. There is no evidence that Rivia intended to conduct hostilities on the basis that
there shall be no survivors. Commented [ANSP3]:

Rivia undertook substantial measures to mitigate casualties. This is proven by the 48-hour
evacuation of the residents in Velen and the chance he has given the fighters inside Velen to
surrender to them (C. 20). He also allowed a humanitarian convoy to bring food items, water and
basic medical supplies for those inside the city (C. 21). These compassionate acts prove the lack
of intention to conduct hostilities on the basis that survivors must be liquidated. Commented [ANSP4]: Word the facts in such a way that
it’s favorable to the defense. Humanitarian convoy nagbigay
siya.

1
M. W. Mouton, "History of the Laws and Customs of War up to the Middle Ages", RICR - English Supplement, October 1959,
p. 184. (Otto, p. 434); Solf, in: Bothe et al. (eds.), New Rules (1982) 217.
2
Solf, in: Bothe et al. (eds.), New Rules (1982) 217.
3
Meyer, p. 108
 3. Rivia does not have effective command or control over the TAF units in Velen. Commented [ANSP5]: What’s do area commanders do?
Jurisdiction, area? What does command center do?
A commander is in a position of effective command or control when he holds the power Mas mataas ba si LT Metz than area commander Rivia?
to give orders to subordinates regarding the conduct of hostilities.4 This is evinced when a
superior actually ordered his subordinates, 5 and his subordinates followed his command.6 This Power to punish,
presupposes a hierarchical organizational structure that involves a superior-subordinate
relationship. 7
Moreover, one is in effective command or control over subordinates if he has the material
ability to prevent or punish offenses committed by his subordinates.8

Here, TAF units stationed within sections of Velen operated with relative autonomy
because of communication difficulties and rapidly changing front lines (C. 25). Hence, bearing the
fact that Rivia cannot give control orders to the TAFthe conduct of TAF units within certain areas
of the cityin Velen, the TAF units then wouldn’t able to follow orders that could not be given.

To be able to prevent a crime, he must have known of its possible commission. Here,
because of the loss of radio contact, reports on the situation of the humanitarian convoy bogged
down by water and the change of route (C. 31) were unclear. The loss of communication affects
Rivia’s material ability , proving that he did not have effective command or control over these
subordinates.to prevent them from committing crimes. Commented [ANSP6]: Add facts na hindi na-follow yung
order ni Rivia.
An act to be considered a punishment must send an unequivocal message that the crime Add another standard of effective command or control –
committed should never be repeated.9 His withdrawal of Unit 52 from the Velen as a mere has the ability to punish
disciplinary measure area does fulfill this condition

B. COLONEL RIVIA IS NOT LIABLE AS A DIRECT PERPETRATOR, CO-

PERPETRATOR, OR INDIRECT PERPETRATOR

A direct perpetrator physically conducts the actus reus of the crime. 10 The crime of declaration
of no quarter is consummated by the mere act of declaring it,11 as well as threatening to conduct
hostilities on that basis. 12 However, since there is no proof that Directive 66 is a declaration of no
quarter, it is not sufficient to indict him as a direct perpetrator.

4 Celebići (Trial Chamber Judgement), note 3, para. 720. (example: executive commanders in charge of a territory rial of
Wilhelm von Leeb et al. (The German High Command Trial) (example: in addition to their operational responsibility may give
orders to all forces within their occupation zone). (Otto, p. 1093-94;)
5
Triffterer, in: Landesgruppe O ̈ sterreich der Internationalen Strafrechtsgesellschaft (AIDP) (ed.), Internationale
Strafgerichtsho ̈fe und Menschenrechte (2007) 104. (Otto)
6
Ibid.
7
Roberta Arnold, "Responsibility of Commanders and Other Superiors", in Otto Triffterer (Ed.), Commentary on the Rome
Statute of the International Criminal Court. (p. 826)
8
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement (AC), 3 July 2002, paras. 50-51; Prosecutor
v.Jeande DieuKamuhanda, Case No.ICTR-99-54A-T, Judgement(TC), 22 January2004, para. 605.
9
ICTR, Prosecutor v Karemera and Ngirumpatse, “Judgment”, ICTR-98-44-T, 2 February 2012, para. 1564-1565 Formatted: English (United States)
10
Kunarac-Trial, ¶390.
11
British Military Court in Hamburg (1951) Ann. Dig. (Year 1946) 64, Moehle Case, (1949) IX Law Reports 75, 78 and 80.
12
Kittichaisaree, International Criminal Law, 173; Charles Garraway, ‘Denying Quarter’
in Lee, The International Criminal Court, 169; Dörmann, ibid., 246.
 Co-perpetrator requires the involvement of at least 2 perpetrators, who are usually interrelated
by a common plan or agreement.13 There must be an existence of a concerted plan and the shared
intent of the participants to further the plans.14 Here, there is no evidence that shows Rivia to have
been in conspiracy with another. There is no evidence that there is a coordinated essential
contribution by each co-perpetrator resulting in the realization of the objective elements of the
crime.15

Indirect perpetration involves an indirect perpetrator who uses the direct perpetrator as a tool
to achieve his goal.16 The indirect perpetrator incurs criminal liability because he exercises control
over the direct perpetrator in the latter’s direct action of committing the crime. It is essential that
the indirect perpetrator is able to “control the will of those who carry out the … offense.” 17 Rivia
cannot be considered an indirect perpetrator as he does not have effective command or control
over the TAF units in Velen. Formatted: English (United States)

13
Claus Roxins opus TÄTERSCHAFT UND TATHERRSCHAFT see now supra note 26, Prosecutor v. Stakic, para. 440. See also supra note 7, A. Eser, Formatted: Normal (Web)
Responsibility 789 et seq.; G. Werle, VÖLKERSTRAFRECHT, margin Nos. 426 et seq. (2nd ed 2007); id., Individual Criminal Responsibility in Article
25 ICC Statute, 5 J. INT’L CRIM. JUST. 958 (2007). Formatted: Font:
14
Prosecutor v. Delalic et al., para. 366.
15
Prosecutor v. Lubanga, 361-365
16
ICTR, Seromba Appeals Judgment 12 March 2008, para. 8.
17
Prosecutor v. Lubanga, para. 332