2 Red Cross International Humanitarian Law (Ihl) MOOT (2008) : The Prosecutor v. General Butcher, Major General Marshall

2nd RED CROSS
INTERNATIONAL HUMANITARIAN LAW (IHL)

MOOT(2008)
THE PROSECUTOR
v.
GENERAL BUTCHER,
MAJOR GENERAL MARSHALL
-------------------------------
MEMORIAL FOR THE RESPONDENT
-------------------------------
FUDAN UNIVERSITY LAW SCHOOL
Cai Mengxian & Huang Yuexiu
(Word Count: 1860)
1
TEAM NUMBER: IHL020802
2
PLEADINGS AND AUTHORITIES
I．GENERAL BUTCHER IS NOT LIABLE FOR CRIME OF GENOCIDE

A. The incidents on 7 and 8 January 2007 do not constitute the crime of genocide
since the mens rea and the actus reus are missing.
The crime of genocide requires the mens rea of the offence, which is described
as the intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such; and the actus reus of the offence, which consists of one or several of
the acts enumerated under the Statute.1
The special intent or dolus specialis demands that the perpetrator clearly seeks to
produce the act charged.2 However, the crucial element of genocidal intent is not
satisfied here. If the assumed genocidal intent had existed, Delphon youth shouldn’t
have spared the whole night of 7 January and the entire daytime of 8 January for
Rumons to flee away, which apparently contradicts the genocidal intent. The
successful flight of many Rumon men during the period demonstrates that the
“wider-ranging intention 3 ” or the “ulterior motive 4 ” lacks here. The afterwards
incidents were merely a response to those who refused to flee away from Suvidesh as
warned rather than intended genocide. The Rumon men were killed for their
disobedience to Delphon youth instead of their membership of the particular group5.
Moreover, the prosecutor has no proof that the attacked women and children were
caused serious bodily or mental harm which satisfies the element actus reus.
B. General Butcher is not liable for the crime of genocide since he didn’t directly
or publicly incite others to commit any crimes.
Incitement is defined as encouraging or persuading another to commit an
offence.6 The element of direct incitement requires specifically urging another
1
See Prosecutor v. Krstic(Judgment),No.IT-98-33-T(‘Krstic’) Para.542
2
See Prosecutor v. Akayesu (Judgment), ICTR-96-4-T Para.498
3
See Prosecutor v. Jelisi(Judgment), ICTY- IT-95-10-T Para.79
4
See Akayesu, Para.522
5
See Krstic (Judgment) Para.582
6
See Andrew Ashworth, Principles of Criminal Law. Clarendon Press, Oxford: 1995, Para.62, Para.
462 Akayesu , Para.555
3
individual to take immediate criminal action rather than merely making a vague or
indirect suggestion7. The two-page message only called on Delphons to assert them
politically and economically.8 Many methods could be adopted to achieve the goal so
that no definite causation can be reached between the message and the specific
offence.9 No explicit implication thereof could be immediately grasped10 by the
audiences. Therefore, it shouldn’t be viewed that the incidents were directly provoked
by the message.
The public element is defined with reference to the circumstances of the
incitement—for instance, where the incitement occurred and whether or not the
audience was selected or limited.11 The two-page message of General Butcher was
only distributed to the cadres of SNA, not all the SNA members or Delphons, on the
conference on 1 January 2007 which proved that the audience was selected and
limited. Furthermore, the conference wasn’t public occasion and the content or
documents of the conference weren’t available to the public.
II. GENERAL BUTCHER IS NOT LIABLE FOR CRIMES AGAINST

HUMANITY
Crimes against humanity refer to acts committed as part of a widespread or
systematic attack12, namely, in a systematic manner or on a large scale13, which
exclude isolated or random acts from the notion14.
The concept of widespread may be defined as massive, frequent, large scale
action, carried out collectively with considerable seriousness and directed against a
7
See article 2(3)(t) of Draft Code of Crimes Against the Peace and Security of Mankind; Report of the
International Law Commission to the General Assembly. 5 1 U.N.ORGA Supp. (No. 10). at 26. U.N.
Doc. N51/10(1996).
8
See Moot problem, Para.3
9
See Akayesu, Para.557
10
See Akayesu Para.558
11
See Prosecutor v. Kajelijeli (Judgment), ICTR-98-44A-T, Para.851
12
See article 7 (1) of the Rome Statute
13
See article 18 of International Law Commission Draft Code of Crimes Against the Peace and
Security of Mankind,
14
See Prosecutor v. Tadic (judgement), ICTY-IT-94-1-T, Para.648
4
multiplicity of victims.15 The victims were mainly Rumons and the incidents
happened only once.
The concept of systematic may be defined as thoroughly organized and
following a regular pattern on the basis of a common policy involving substantial
public or private resources.16The incidents on 7 and 8 January 2007 were random act
without organized or regular pattern or as part of a broader plan, thus the incidents
can’t be held as crimes against humanity. General Butcher wasn’t involved directly or
indirectly in the incidents at all, so he is not liable for crimes against humanity.
III. GENERAL BUTCHER SHOULD NOT BEAR SUPERIOR

RESPONSIBILITY FOR GENOCIDE OR CRIMES AGAINST HUMANITY
According to Rome statute, the superior responsibility requires the crime
committed by the subordinate. In light of the foregoing, the incidents were not
genocide or crimes against humanity so that General Butcher should bear no superior
responsibility.
Even if the crime of genocide and crimes against humanity existed, General
Butcher can’t be held superior responsibility
1. The superior-subordinate relationship didn’t exist17
The factor that determines liability for the particular crime is the actual
possession or non-possession of powers of control over the actions of subordinates.18
The level of control required was defined as the actual authority over the offenders to
issue orders to them not to commit illegal acts.19 General Butcher stated that SNA
organizational structure didn’t contain any official youth wing. It can be accordingly
believed that SNY was established by the Delphon youth spontaneously and General
Butcher didn’t have material authority to prevent SNY from committing crimes.
2. General Butcher had no actual or potential knowledge of crimes perpetrated or
15
See Akayesu,Para.580
16
See Akayesu,Para.580
17
See Prosecutor v. Aleksovski (Judgment), ICTY-IT-95-14/1-T(‘Aleksovski’), Para.78
18
See case ^elebi}i, Para. 370, pp. 136-137.
19
See Aleksovski, Para.77
5
about to perpetrate20.
The maligning leaflets and posters were seen as Delphons’ expressions of anger
by General Butcher. No linkage can be inevitably reached between the messages and
the crimes, so General Butcher had no potential knowledge of crimes about to
perpetrate. Since General Butcher had no de facto relationship with the Delphon
youth, he could get the message of the incidents only from the media, which wasn’t
available until 9 January 2007, so General Butcher had no actual knowledge of the
incidents.
IV. MAJOR GENERAL MARSHALL IS NOT LIABLE FOR THE WAR

CRIMES OF ATTACKING THE PROTECTED OBJECTS FOR THE
INCIDENTS OF 10 FEBRUARY 2007
The war crimes against the protection of cultural property is defined in Rome
Statute as “Intentionally directing attacks against buildings dedicated to religion,
education, art, science or charitable purposes, historic monuments, hospitals and
places where the sick and wounded are collected, provided they are not military
objectives.” 21 The missing of two crucial elements made Major Marshall not
responsible for the crime.
A．The shrine should not have been military object when attacked.
A centre containing monuments shall be deemed to be used for military purposes
whenever it is used for the movement of military personnel or material, even in transit.
The same shall apply whenever activities directly connected with military operations,
the stationing of military personnel, or the production of war material carried on
within the centre.22 The fact that Marshall was sent to Suburbia to help the rebel
forces by the government of Megrisland made it apparent that the incidents on 10
February 2007 were international armed conflicts23. The Suburbian forces stayed in
the shrine for a certain period of time from early that evening to nine o’clock, which
20
See Prosecutor v. Delalic (Judgment), ICTY-IT-96-21-T, Para.346
21
See article 8(2)(b)(ix) of Rome Statute
22
See article 8.3 of Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague,
14 May 1954.
23
See footnote 743 of Case (Prosecutor v. Strugar) No IT-01-42-T.
6
proved that the shrine was used for military purposes when attacked.
B. The special intent or dolus specialis that war crimes should embody is missing.
The special intent lies in intentionally directing attacks. It is significant to prove
that the accused did have the hostility to damage the religious building for the purpose
of using them in support of the military effort so as to prove the existence of the
special intent.24. As to the geographic situation, the only approach to the open space is
through the two narrow passages from both sides of war since the southern freeway
towards the southern end is an impasse. That Marshall aimed to attack the Suburbian
forces in the shrine made it inevitable to fire through the western or the eastern
passage. No matter which passage was taken, the damage to the shrine was equivalent.
Therefore, the damage of the shrine was made with no special intent or hostility
directed against the shrine.
To conclude, the firing of Marshall’s force was of no special intent and the shrine
was regarded as a military object. Thus Major General Marshall was not liable for war
crimes against protection of the cultural objects for the incidents of 10 February 2007.
V. GENERAL MARSHALL IS NOT LIABLE FOR WAR CRIMES OF

EXCESSIVE INCIDENTAL DEATH, INJURY OR DAMAGE FOR THE
INCIDENTS FROM 13 MARCH TO 15 MARCH 2007
According to the Rome Statute, the serious crime of environmental destruction
means intentionally launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian objects or widespread,
long-term and severe damage to the natural environment which would be clearly
excessive in relation to the concrete and direct overall military advantage
anticipated.25
A. The behavior of shelling the oil field was a normal military counterattack, not
an intentional attack.
During war time, it’s natural to beat back when the nation’s interest is injured by
24
See article 16 of Additional Protocal II to the Geneva Conventions
25
See article 8(2)(b)(iv) of Rome Statute
7
the opposite. When General Marshall attacked the oil field, his intent was for military
strategy and military need instead of destroying the environment. Thus, what he had
done to the oil fields could not fall within the element of “intentionally”.
B. The element of excessive is not satisfied.
Although General Marshall commanded to shell the oil field，we could not assess
whether the military interest was excessive or not compared with the damages.
What’s more, the behavior of shelling is normal for military.
C. The element of widespread and long-term is not satisfied.
The term widespread, long-term is vague because widespread encompasses an
area on the scale of several hundred square kilometers while long-term means lasting
for a period of months, or approximately a season.26 Concerning the facts, the fire
continued for only several days near the borders of the two countries, no evidence
shows that the behavior has caused widespread, long-term damage. Experts’
preliminary judgment is not inevitably consistent with the factual situation.
PRAYER
For the foregoing reasons, the respondent respectfully requests this Honorable
Court to adjudge and declare that:
General Butcher and Major General Marshall do not incur any criminal
responsibility for genocide, crimes against humanity, war crimes against protection of
cultural property and environment in the indictments against the accused persons
should be dismissed.
RESPECTFULLY SUBMITTED,
AGENTS FOR THE RESPONDENT
26
See Commentary on the Additional Protocols I to the Geneva Conventions Para. 417
8

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2nd RED CROSS

INTERNATIONAL HUMANITARIAN LAW (IHL)

FUDAN UNIVERSITY LAW SCHOOL

Cai Mengxian & Huang Yuexiu

(Word Count: 1860)

I．GENERAL BUTCHER IS NOT LIABLE FOR CRIME OF GENOCIDE

II. GENERAL BUTCHER IS NOT LIABLE FOR CRIMES AGAINST

III. GENERAL BUTCHER SHOULD NOT BEAR SUPERIOR

IV. MAJOR GENERAL MARSHALL IS NOT LIABLE FOR THE WAR

V. GENERAL MARSHALL IS NOT LIABLE FOR WAR CRIMES OF

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