UNIVERSITY OF ST.

LA SALLE (USLS)
COLLEGE OF LAW

Team Members:
Carlos Auxtero III
Ernalin Costiniano
Justin Eric Pabon

The Prosecutor
v.
Nathan Orkhan

MEMORIAL FOR THE DEFENDANT

Word Count: 1999

1.1 The Court has jurisdiction over this case. The Defendant recognizes the prima facie
jurisdiction of this Court but submits that there is insufficient evidence to establish
substantial grounds to believe that he committed the crimes as charged.1 The Pre-Trial
Chamber should decline to confirm those charges on grounds of insufficient evidence.2

1.2 The case is inadmissible under this Court’s Statute. There is no evidence to show
that the Kingdom of Khamri was unwilling, or unable to genuinely carry out the
investigation or prosecution, hence, the case must be declared inadmissible under
Article 17(1) of this Court’s Statute. By observing that the issuance of a warrant is still
subject to the determination of this Chamber upon satisfaction of probable cause; 3 the
refusal to surrender Orkhan, therefore, does not signify the intention of Khamri not to
prosecute the case but to protect the defendant’s right from arbitrary arrest. As a court
of last resort, the acquisition of jurisdiction by the ICC was premature.

1.3 The proof showing failure of Khamri to prosecute is not present. There was no showing
of a collapse in Khamri’s judicial system. In fact, Khamri already commenced with the
trial of other key military figures. 4 It was the growing internal turmoil and the coercive
economic pressure from the international community that forced Khamri to
prematurely surrender Orkhan before even commencing with their internal
investigation and prosecution.5

1
Rome Statute, Art. 61(7)
2
Id., Art. 7 (b)
3
Rome Statute, Art. 58
4
Moot Problem ¶ 35
5
Moot Problem ¶ 37

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 1.4 There was no unjustified delay in the prosecution and therefore it is in the interest of
justice and fidelity to the raison d etre of the Court.

2. FIRST COUNT

2.1 The war crime of destroying or seizing the enemy’s property, unless such
destruction or seizure be imperatively demanded by the necessities of war under
Article 8(2)(b)(xiii) of this Court’s jurisdiction, was not committed. The seizing of
the enemy’s property was justified by a valid military necessity. It follows that the
imperative demand by the necessities of war allows for specific derogations of the
provisions found in the Geneva and Hague Conventions. 6

2.2 The appropriation of the property was carried out in proportion to its military
objective. The specific command of Marshal Nathan Orkhan was limited to the capture
of oil fields and installations to remedy the supply to the front line.7 This is deemed
necessary by Orkhan because the oil installations of Khamri are located south of their
territory without any pipelines to deliver the fuel to the disputed area,8 without swift
action, military vehicles and armed vehicles are at risk of falling into enemy hands. The
test of proportionality is reflected by the commander’s honest and reasonable
expectation that the attack will make a relevant contribution to the success of the overall
operation.9

2.3 The evidence also shows that the head of Chaqua Militia, Gilles Kaiax, holds an
essential role in the grant concessions of Exyl Oil that contributes to the needs of the

6
Handbook on the Law of War for Armed Forces, (ICRC, Frederic De Mulinen, 1987), p. 83
7
Moot Problem ¶ 15, 16
8
Question 1 of Clarification
9
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the judge
Advocate General, 1999, p. 4-3

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 militia group.10 This further proves that the oil field holds significant role in the armed
conflict in the area, enough to make it as a subject of a military objective. The
proportionality of the appropriation, along with a legitimate military objective, satisfies
the requirement for military necessity.11

2.4 Lastly, the refinery held as a private property would be beyond the scope of this
provision. This Court previously ruled that Article 8(2)(b)(xiii) does not apply to
incidental destruction of civilian property during an attack specifically directed at a
military objective, as long as the destruction does not violate the proportionality rule.
12

2.5 The Property is not protected from destruction or seizure under the international
law of armed conflict. The property does not fall on any prohibitions embodied in the
Hague Convention. 13 Also, the pieces of evidence suggest that the appropriation was
not intended to bring destruction to the property, thus, environmental impacts did not
come as a result of the seizure as it was never contemplated in the first place. 14 Lastly,
the special protection in works and installation shall cease because property was used
in regular, significant, and direct support of the military operations. 15 This is supported
by intelligence report where the former leader of the Chaqua Militia, now the Secretary

10
Moot Problem ¶ 8
11
DUNBAR N.C.H., “The Significance of Military Necessity in the Law of War”, in Juridical
Review, Vol. 67/2, 1955, pp. 201-212.
12
Prosecutor v Katanga and Chui, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the
Confirmation of Charges, 30 September 2008
13
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.
14
This refers to installations that might indeed afford the enemy military or strategic benefit, but
if damaged would incur such severe environmental damage to the civilian population that it was
decided to prohibit their destruction. See Israel’s Manual on the Laws of War (1998)
15
Article 56 of the 1977 Additional Protocol I

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 of Natural Resources of Pharak, was behind in the excursions and raid against
Khamria.16

3. SECOND COUNT

3.1 The war crime of 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 which would be clearly excessive to the concrete and direct overall military
advantage anticipated under Article 8(2)(b)(iv) of the Rome Statute was not
committed. The facts are undisputed that there was indeed an operation designed to
strike a decisive blow against the Chaqua Militia by capturing their stronghold, the City
of Antoch17, and that it had impacted greatly the lives of the people therein.18

3.2 Knowledge that such attack will cause incidental loss of life or injury to civilians
or damage to civilian objects is not established. The person responsible must have
known, or deliberately disregarded the information that an incidental loss of life or
injury to civilians or damage to civilian objects is imminent. Evidence available show
otherwise, the order of Orkhan to General Lucius Patek was made with due diligence
and utmost consideration towards the lives of the people of Antoch and the objects
found therein. 19 The knowledge requirement is not established. 20

3.3 Damage caused by the attacks are not excessive in relation to the concrete and
direct overall military advantage anticipated. Launching an attack which may be

16
Moot Problem ¶ 11
17
Moot Problem¶22
18
Moot Problem¶28
19
Moot Problem¶24
20
Rome Statute, Article 8(2)(b)(iv)

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 expected to cause incidental loss of civilian life which would be excessive in relation
to the concrete and direct military advantage is prohibited.21

3.4 However, there can be lawful incidental injury and collateral damage in military
activities in the context of armed conflicts.22In Katanga23, the chamber had reasonable
ground to believe that taking over a village which was instrumental in coordinating
forces was a definitive military advantage. Similarly in this case, the decision to strike
a decisive blow on the city of Antoch and neutralizing its power plant was not excessive
to the military advantage gained by Khamri.

3.5 The attack was concluded successfully without significant casualties. 24

3.6 This being said, it is clear that the essential elements of the war crime under Article
8(2)(b)(iv)25 were not satisfied, and the mens rea to cause such incidental death, injury,
or damage was absent in this case, therefore, the charge was not committed.

3.7 The defendant cannot be held individually criminally responsible for ordering,
soliciting or inducing the commission of such a crime which in fact occurs or is
attempted, pursuant to Article 25(3)(b). In the case of Ruto, Mr. Sang directly
appealed to the perpetrators through the broadcasting station statements inciting

21
Additional Protocol to the Geneva Conventions of 12 August 1949 and relating to the Protection
of Victims of International Armed Conflicts Protocol I (Adopted 8 June 1977 entered into force
on 7 December 1978) 1125 UNITS 3 Article 49(1) [‘API’]
22
Otto Triffterer and Kai Ambos, Rome Statute to the International Criminal Court: Commentary
(3rd Edition 2015)
23
Prosecutor v Katanga and Ngudjolo Chui ICC-01/04-01/07-55-Red (5 November 2007)
24
Moot Problem¶26
25
Rome Statute, Article 8(2)(b)(iv)

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 violence.26 This can be distinguished from this case where Orkhan ordered General
Lucius Patek to capture Antoch and neutralize the Antoch power plants without
compromising the overall functioning of the power plant and without causing any
physical damage.27 Giving an order requires a positive act and thus may not be
committed by omission,28 Orkhan never made any explicit or implicit order to commit
a crime.29

4. THIRD COUNT

4.1 The crime against humanity of enslavement was not committed under Article
7(1)(c) ICC Statute. There was no indication of widespread and systematic attack
directed against civilian population nor was there an exercise of powers attached to the
right of ownership.30

4.2 The action of Marshal Orkhan does not fall within the purview of enslavement as
contemplated in the Rome Statute. The capture of the oil field and its installations is
vital for the continued military operations against the Chaqua.31 In no way was is
directed to a civilian population nor did the conduct took place in the context of a
manifest pattern directed against that group.32 International law dictates that no crimes
against humanity directed at civilians may be committed unto combatants who still take
part in hostilities because civilians do not take direct part in armed conflict as they are

26
Prosecutor v. Ruto,et.al. (Decision-Confirmation of Charges, Pre-trial Chamber II) ICC-01/09-
01/11-373 (23 January 2012)
27
Moot Problem¶25
28
Prosecutor v. Jadranko Prlic (Trial Chamber) ICTY-IT-04-74-T (29 May 2013)
29
Moot Problem¶25
30
ICC Elements of a Crime
31
Moot Problem, 16
32
ICC Elements of a Crime

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 generally known as unarmed.33 Thus the taking of the oil field and its installations is
not a systematic and widespread attack against a civilian population or ethnic group.

4.3 The defendant cannot be held liable through superior responsibility. The
defendant did not have the intention to enslave those who were captured. The mens rea
to enslave must be present.34 The clear intention was to keep the water supply running
and continuation of the function of the oil rig.

4.4 The knowledge requirement is also not satisfied. The superior must have known, or
consciously disregarded the information which clearly indicated, that his subordinates
were committing or is about to commit a crime. The defendant has not been in
possession of such knowledge or can be presumed to have it. It was clear the defendant
was under heavy sedation from taking pain killer drugs. Even when called back to duty,
it cannot be said that the individual was fully aware as he was still under heavy
medication.35

4.5 The mens rea required to establish superior responsibility must be so serious that it is
tantamount to malicious intent, apart from any link between the conduct in question
and the damage that took place.36

4.6 When it was revealed later on that there were irregularities in place, the individual took
the proper disciplinary action against the individual commanders who took part on the
compulsory labor.37 Thus he took reasonable measures within his power to prevent or

33
Prosecutor v. Kordić and Cerkez, "Judgement", IT-95-14/2-T, 26 February 2001
34
An introduction to the International Criminal Court, (ICRC, William A. Schabas, 2004), pp.
145, 146
35
Moot Problem, 30
36
Commentary on the Additional Protocols of 8 June 1977 (supra), pp. 157, 1012
37
Moot Problem, 35

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 repress their commission or to submit the matter to the competent authorities for
investigation and prosecution.

5. Prayer

5.1 It is respectfully submitted that there is no sufficient evidence to establish substantial

All of which is humbly prayed,

Counsels for the Defendant

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