Presecutor Benar.docx

Team No.4

Indonesian National Round International Humanitarian Law Moot Court Competition

Memorial of the Prosecutor

2018

TABLE OF CONTENTS TABLE OF CONTENTS..............................................................................2 PLEADINGS I.

THE

INTERNATIONAL

CRIMINAL

COURT

(“ICC”)

HAS

JURISDICTION OVER MICHELL NAZIR (“NAZIR”) A. PROSECUTOR’S PROPRIO MOTU INVESTIGATION IS ALWAYS AVAILING..............................................................................................4 B. COMPLEMENTARY

JURISDICTION

REQUISITES

WERE

SATISFIED..............................................................................................4 II. INDICMENTS INDICMENT 1-COLONEL NAZIR IS LIABLE FOR THE ALLEGED CRIME AGAINST HUMANITY 1.

The

perpetrators

commited

the

crime

against

humanity

of

exermination..............................................................................................5 2.

The Severity of exermination was of such degree to be generally recognized as an outrage upon the crime against humanity......................5

3.

Such person or persons were civilians taking n active part in the hostilities and perpetrator was aware therof.............................................6

4.

The perpetrators jointly with another or through another person commited the crime against humanity......................................................6

INDICMENT

2-WAR

CRIME

OF

ATTACKING

BUILDINGS

DEDICATED TO RELIGION UNDER ARTICLE 8 (2)(B)(ix) OF THE ICC STATUE 1.

Perpetrator attacked into the buterfly temple were civilian in there and perpetrator was aware theorof.................................................................7

2.

Perpetrator attacked cultural propertiy....................................................7

3.

The Perpetrators carry out attacks that have an impact on civil rights violations.................................................................................................8

4.

The perpetrator give orders, solutions or induce crime commisions that cause severe damage and violate International Law...............................8 2

INDICMENT 3-TREATMENT OF PRISONERS OF WAR WITH TORTURE UNDER ARTICLE 8(2)(A)(II) OF THE ICC STATUTE 1.

Ressponsibility of commanders affective authority and control for torture crimes......................................................................................................9

2.

The old building that is not suitable for prisoners of war.......................9

3.

There are no medical facilities for war proisoners who are sick in the old building.................................................................................................10

4.

The treatment of prisoners in violation of human rights and humanitarian law and the suspect is aware of this.....................................................10

III. RESPONSIBILITY...................................................................................11 IV. PRAYER FOR RELIEF...........................................................................12

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PLEADINGS I. THE

INTERNATIONAL

CRIMINAL

COURT

[“ICC”]

HAS

JURISDICTION OVER MICHELL NAZIR [“NAZIR”] ICC has jurisdiction under (A) prosecutor’s proprio motu authority to investigate1 and (B) satisfaction of complementarity principle.2 A. PROSECUTOR’S PROPRIO MOTU INVESTIGATION IS ALWAYS AVAILING ICC's jurisdiction extends to crimes under Article 5 of Rome Statute [“RS”] upon; inter alia, Prosecutor’s investigation into allegations of commission of such crimes.3 (a)Prosecutor’s investigation and issuance of an arrest warrant against Nazir,4 and (b) Pre-Trial Chamber’s confirmation thereof sufficiently established legal basis to try Nazir in ICC.5 Thus, while Prosecutor’s proprio motu authority is tightly circumscribed,

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its preconditions were met,7 and thus it is

properly exercised.8 B. COMPLEMENTARY

JURISDICTION

REQUISITES

WERE

SATISFIED ICC’s jurisdiction is complementary to national criminal jurisdiction,9 and is triggered when state of nationality10 or where crimes occurred11 is unwilling12or unable13 to prosecute.14 While the RS reserves to the state15or accused16 right to

RS,UNDoc.A/CONF.183/9,1July2002[“RS”],Art.13(c). RS,Art.1;Art.17(1). 3 RS,Art.13(c). 4 RS,Art.15(3). 5 RS,Art.15(4). 6 Slye&Schaack, 2010, International Criminal Law &Procedure : Cases& Materials(2nded,Foundation Press,)p.67. 7 RS,Art.12(1). 8 RS,Art.13(c). 9 RS,Art.1. 10 RS,Art.12(2). 11 RS,Art.12(1). 12 RS,Art.17(2). 13 RS,Art.17(3). 14 RS,Art.17. 15 RS,Art.19(2)(b). 1 2

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challenge jurisdiction,17 Donka or Bonham, which have potential national jurisdiction, have not objected to Nazir’ prosecution before ICC. Donka agreed, in the following reconciliation, that allegations of Humman Rights and international law violants would be investigated and individuals responsible for such violations would be prosecuted.18 Thus, this Court has jurisdiction over Nazir.

II. INDICTMENTS To secure convictions19 it is Prosecution’s20 duty to prove both Elements of Crimes[“EOC”]21 and Nazir responsibility for Donka’s Military Forces, The Bonham Human Rights Forum (BHRF), The Blues Charity Association (BCA) and other Organizations were fulfilled as infra. INDICMENT 1-COLONEL NAZIR IS LIABLE FOR THE ALLEGED CRIME AGAINST HUMANITY Individual criminal responsibility for committing, wether as an individual, jointly with another or through another person22 (article 25 (3)(a)). 1. The perpetrators commited the crime against humanity of exermination Action constituted by perpetrator in Bonham23 Had depicted such action that is against the principle of humanity.24 the fact that more than one thousand civilian had been killed in Bonham, including 153 deaths from the community hall attack.25 2. The Severity of exermination was of such degree to be generally recognized as an outrage upon the crime against humanity Crimes against humanity began with a confrontation that took place in October which has turned violent since the military presence and from this incident

16

RS,Art.19(2)(a). RS,Art.19(2)(c). 18 Problem 33 19 RS, Art. 66(3). 20 RS,Art. 15. 21 RS.Art. 9(1). 22 RS.Art. 25 (3a)w 23 Problem 15 24 RS.7 (1b) 25 Problem 16 17

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caused 50 deaths and more than 100 serious injures.26 This is the responsibility of prepetrator. On 3 November 2016, local media in Bonham reported after the last few incidents wich involvves the millitary under Nazir leadership more than one hundred and fifty (150) people from the northern suburbs of Mewani went missing as claimed by their family members.27

3. Such person or persons were civilians taking no active part in the hostilities and perpetrator was aware thereof. The attack carried out by the perpetrator is not on the right target. The meeting held in the community hall were carried out by civilians to discuss about preparation for the upcoming festival.28 Perpetrator knew and should have known that there were civilians had no active part in the hostilities and the action also sperding fear among them. It’s mean that the perpetrators have violated international law, especially regarding crimes against humanity.29 Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.30

4. The perpetrators jointly with another or through another person commited the crime against humanity Perpetrators commit crimes against humanity by using help from mercenaries.31 or in this case known as the Black Dog security (BDS).32 the crimes committed by BDS so as to cause victims remain the responsibility of the perpetrators, because they use uniforms with the emblem of the donkan’s military33 and under the leadership of Nazir. And this has been an agreement

26

Problem 13 Problem 14 28 Problem 16 29 RS.7 30 Article 9 (1) International Convenant on Civil and Political Rights 31 Article 47 Additional Protocol I 1977 32 Problem 19 33 Problem 20 27

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between the two parties.34 The fact of BDS presence make the crime against humanity start from since the deployment of BDS forces, a large number of Bonhamian people have been reportedly arrested and many of them have gone missing.35 INDICMENT

2-WAR

CRIME

OF

ATTACKING

BUILDINGS

DEDICATED TO RELIGION UNDER ARTICLE 8 (2) (B) (ix) OF THE ICC STATUTE Individual Criminal Responsibility for ordering, solciting or incuding the commision36, Perpretrator was violated the international law because attacking objects of culture37 where elements were fullfilled, substantiated as infra: 1.

Perpetrator attacked into the Buterfly temple were civilian in there and Perpetrator was aware theorof Thourghout the history of Bonham, The temple has served as a secred place for the Blues religion and for community gatherings of Bonhamians.38 It means that there will be many civilians present at the festival and BDS39 through the perpetrators have attacked the temple which will cause many victims, especially civilians who are not involved in the hostilities. This is proven by the fact that BDS Personnel opened fire inside of the temple for twenty minutes.40 as result, Twelve (12) people died and seven (7) were seriously wounded and the wall was riddled with bullets41, and actually the Butterfly Tample is a UNESCO World Heritage site.42

2.

Perpetrator attacked cultural propertiy In the armed conflict be supposed protection of cultural property shall safeguarding of and respect for such property.43 When the attaked agains

34

Problem 19 Problem 20 36 RS. 25(3)(b) 37 Article 16 additioanal protocol 1977 38 Problem 21 39 Problem 22 40 Ibid,. 41 Ibid,. 42 Problem 21 43 Article 2 the Hague Convention for the Protection of Cultural Properti in the Even of Armed Conflict. 35

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BLO leaders, Perpetrator as part of a plan or policy or such a part of largescale commision of such crime wich is destruction of cultural property at Butterfly Tample, as a consequent of the arrest, ten (10) holly grails were broken, two (2) massive murals were scrubbed.44 The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility, directed against such property.45 3. The perpetrators carry out attacks that have an impact on civil rights violations Various civil rights are regulated in the covenant on civil and political rights, such as the inherent right to life46, the right not to be tortured47, the right not to be slavery48, the right to liberty and security of person49 and various other rights. this should be respected and guaranteed respect.50 This is evidenced by the fact that civilians feel panic among people in the area. 51 The annual Blues Festival cannot carried out well cause of attacks from prepetrator that civilians feels that there is no freedom to run a religious procession. 4. The Perpetrator give orders, solutions or induce crime commissions that cause severe damage and violate international law In the article 25 (3) (b) In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted.52 the 44

Problem 22 Article 4 the Hague Convention for the Protection of Cultural Properti in the Even of Armed 46 Article 6 (1) International Convenant on Civil and Political Rights 47 Article 7 International Convenant on Civil and Political Rights 48 Article 8 (1) International Convenant on Civil and Political Rights 49 Article 9 (1) International Convenant on Civil and Political Rights 50 Article 2 Internationaal Convenant on Civil and Political Rights 51 Problem 22 52 Article 25 (3)(b) Roma statue 45

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perpetrator gave an order to BDS to carry out the attack, and the attack caused severe damage such as the door to the temple was irreparably damaged and the wall was riddled with bullets.53 INDICMENT

3-TREATMENT

OF

PRISONERS

OF

WAR

WITH

TORTURE UNDER ARTICLE 8 (2)(A)(II) OF THE ICC STATUTE Individual Criminal Responsibility for the war crime of torture54 to the treatment prisoners , where elements were fullfilled, substantiated as infra: 1. Responsibility of commanders affective authority and control for torture crimes As a military commander shall be criminally responsible for crimes within the jurisdiction of the Court55, the perpetrator was responsible for the violation of the crime of torture of the person arrested in 28 December 2016.This was evidenced by the recognition of 22 individuals who claimed the perpetrator visited claimed the building in the first week of their confinement and saw him speak to black uniform personnel guarding the building and giving some instructions for black uniformed troops.56

2. The Old Building that is not suitable for prisoners of war After the arrest, they were taken to an old building that had been abandoned by the government (an old building) on the eastern outskirts of Mewani. The building does not have electricity, clean water supply, or even a toilet. The detainees were kept in isolation in cells covered 4 to 5 meters, given the lack of electricity and ventilation, they could not sleep and fell ill from suffocation. Because of the conditions of detention and isolation, 6 prisoners committed suicide. 57

53

Problem 22 RS.8(2)(a)(ii) 55 RS. 28 (A) 56 Problem 28 57 Problem 27 54

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3. There’s No Medical Facilities For War Prisoners Who Are Sick In The Old Building Every camp shall have an adequate infirmary where prisoners of war may have the attention they require,58 but in this case ill inmates are taken by black uniformed guards because there are no medical facilities or personnel in the building59,they also said, as long as they were locked up, every day they saw new people being downstairs to the building, many of them came injured but no knowledge of medical assistance was given. 6 February 2017 quote from the ICRC reported that visits to old buildings appeared on local media , The report shows the conditions of detention not agreed by the ICRC and have been the subject of a number of recommendations for improvement, in particular the shortcomings of health services and the psychological impact of detention detention. The ICRC Health Envoy also arranges for the care needed by some prisoners who need urgent medical attention.60 This is be a serious breach61 of the geneva Convention III 12 August 1949.

4. The treatment of prisoners in violation of human rights and humanitarian law, and the suspect is aware of this. Detainees were not allowed to contact other prisoners or their families, The basic daily food rations shall be sufficient in quantity, quality and variety to keep prisoners of war in good health and to prevent loss of weight or the development of nutritional deficiencies. Account shall also be taken of the habitual diet of the prisoners62. In this case the prisoners only provided 2 glasses of water and 4 slices of bread every day63. It was violated article 26 of the Geneva convention III. Until May 2017 the IEC reported gross violations of human rights and international humanitarian law in its first report.64

58

Article 30 GC III 1949 Ibid,. 60 Problem 30 61 Article 13 GC III 1949 62 Article 26 GC III 1949 63 Problem 29 64 Problem 32 59

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III. RESPONSBILITY Colonel Nazir is responsible for crimes committed by his subordinates under (A)superior65 and/or (B)individual responsibility.66 as proscribed in Article 28(a) of the RS

A. SUPERIOR RESPONSIBILITY An individual is liable as superior when (i)there exists superiorsubordinate relationship, (ii)he knows, knew or had reason to know crime was about to be or had been committed, and (iii)fails to prevent or punish subordinates.67 First, Colonel Nazir had effective control68 the moment appointed as leader,69 Colonel Nazir was devoted to assessing to current situation and devising a proper strategy to bring Bonham back under the full authority of the Donkan government by military means if necessary.70 Thus, Colonel Nazir is superiorly liable towards all action constituted by [NCC].71

B. INDIVIDUAL RESPONSIBILITY Notwithstanding superior responsibility, Colonel Nazir can be individually liable, which would reflect full criminal culpability.72 A person, who planned, instigated, ordered, committed of a crime, shall be individually responsible for the crime.73 He indicated that he would personally supervise the operations and would welcome the assistance of the security forces under the authority of Donka’s Military. Thus, Colonel Nazir is individually liable.

65

RS, Art28 (b). RS, Art.25. 67 Delalic (Trial Judgment), ICTY-96-21-T, 16 November 1998, 346, ('Celebici'). 68 Simic, Tadic, Zaric (TrialChamber), ICTY-95-9-T, 17 October 2003, 659. 69 Problem 11. 70 ibid 71 Problem 22. 72 Kayishema (Judgment), ICTR-95-1-T, 21 May 1999, 210. 73 ICTY Statute,Art.7(1). 66

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IV. PRAYER FOR RELIEF Wherefore Prosecution respectfully request Nazir to be held liable, superiorly and individually for: a. The crime against humanity of exermination under article 7(1)(b) of the ICC Statue b. The war crime of the intentionally directing attacks against buildings dedicated to religion under article 8(2)(b)(ix) of the ICC statue c. The war crime of torture under article 8(2)(a)(ii) of the ICC statue

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