1. THE EXISTENCE OF INTERNATIONAL ARMED CONFLICT 1.

1 Started by artillery fire from the Arkadian side in Luga into Stovia 1 , the armed conflict commenced between Arkadian Armed Forces (AAF) and Stovian Armed Forces (SAF) during March 2009 to 30 July 2009, resulting a resort to armed force between States. 2 1.2 An armed conflict is defined to be international in character if it takes place between two or more States. 3 Therefore, the armed conflict between Stovia and Arkadia is of an international character, through their respective national armed forces, SAF and AAF, acting on behalf of their State. 2. COLONEL POTTER IS NOT GUILTY FOR WAR CRIME OF ATTACKING CIVILIANS 2.1 According to the Elements of Crimes, in addition to establishing a nexus between the crime and an international armed conflict and the perpetrators awareness of the factual circumstances establishing the existence of such a conflict, this war crime requires the following three elements: (i) the perpetrator directed an attack; (ii) the object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities; and (iii) the perpetrator intended the civilian population as such or individual civilians not taking part in hostilities to be the object of the attack. However, Colonel neither attacked the protected population, nor had such intension to do so. 2.2 At the border control post, the border guards should be regarded as combatants. The armed conflict had begun before the attack in April 9 2009. As a part of armed force of AAF, they were ready to attack SAF anytime they approached. Furthermore, the border guards opened fire before SAF directed any attack against them. Even if theyre identified as civilians, they lost

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Moot Court Problem Paragraph (Paragraph) 20. Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, para. 56. Pre-Trial Chamber I, Lubanga decision, ICC-01/04-01/06-803-tEN, para. 209.

immunity to attacks after they opened fire. 2.3 Civilians shall enjoy the protection, unless and for such time as they take a direct part in hostilities 4 . In order to qualify as direct participation in hostilities, a specific act must meet the cumulative criteria5 . (1)the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm) (2) there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation)(3)the act must be specifically designed to directly cause the required threshold of harm in support 2.4 As for those villagers who provided support to AAF, some of which took up arms, their supportive acts occurred at the battlefield and were spontaneous, directly aiming at SAF to specially frustrate the advancement of it. There were high possibility of harm, link between acts and possible result and intention. Therefore they lost protection from attacks. 2.5 As for the rest of the civilian population, no evidence could show that Colonel Potter had the intension to attack the civilian population in the village solely and directly. As regards the subjective elements, the offence, first and foremost, encompasses dolus directus of the first degree, 6 which means the civilian population are the sole target of the attack. 2.6 Considering the conflict last for one night, there was great difficulty to

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to

the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (API), Article 51, (1).
5

Interpretive guidance on the notion of Direct participation in hostilities under

international humanitarian law, Nils Melzer, Legal adviser, ICRC

6

The prosecution v. Germain Katanga and Mathieu Ngudjolo Chui, Pre-trial

Chamber I, ICC-01/04-01/07, 30 September 2008.

discriminate civilians from combatants in the dark. The military target was only the tower and attacks had focused around it. SAF did not deliberately approach civilian residencies, which might expand the scope of incidental death and injuries. Meanwhile, the villagers helping soldiers to leave were intermingled with soldiers, who comprised the majority. So this group of people were not civilians. Therefore, the villagers were attacked incidentally during a lawful and proportionate attack, instead of intentionally killed. 3. COLONEL POTTER IS NOT GUITY FOR WAR CRIME OF EXCESSIVE INCIDENTAL DEATH, INJURY OR DAMAGE Shelling of the Industrial district: 3.2 The incidental death, injury to civilians and damage to civilian objects were exaggerated by the media. According to Amnesty International in its preliminary report in May 2009 7 , any total casualty count must be viewed with at least a certain element of skepticism, especially, the reports of the local Arkadian media. 3.3 The overall military advantage anticipated is proportionate to the death, injury and damage. Neutralizing the threat and destroying the military installations and assets were the purposes of Colonel Potters offensive. But attacking the industrial area with long range artillery from the mountains was the component of the overall operational plan which was an integral part. There was the military necessity, since there was an old ammunition factory and a chemical plant which produced explosives in the Industrial district. 8 3.4 Colonel Potter was no knowledge of the disproportional. Despite the possible disproportional of the attack, Colonel Potter did not act in the knowledge of this disproportional and, because this knowledge is a necessary element of the war crime of causing disproportionate harm to

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civilians and civilian object, he is not liable for the crime. 9 It is a situation in which a commander intently launches an attack that he consciously concluded that it would inflict a "clearly excessive" amount of damage. So proportionality during an armed conflict should be made through the eyes of a reasonably well informed military commander.
10

But the subjective

evaluation of Colonel Potter was with incomplete information on the battlefield, since they did not have much knowledge on Lugas terrain and defensibility. Even if Colonel Potter launched the attack later justified disproportionate, it seems far more likely that he either devalued the amount of damage it would cause or overvalued its potential military advantage. Either error, however, would have prevented him from making the "clearly excessive" value judgment that criminal responsibility under Article 8(2)(b)(iv) requires. Counterattack in the Old Town: 3.6 The damage of the shrine and the temples should be eliminated from the civilian object damage calculation. According to the Hague Convention for the Protection of Cultural Property Article 11, By using the shrine and the temples from which to shoot and launch missiles and to stockpile weapons, the AAF consequently not only released the SAF from the obligation to ensure the immunity of the shrine and temples 11 and also turned these facilities into legitimate military objectives, 12 and as such they must be eliminated from the civilian damage calculation. 3.7 The overall military advantage anticipated is proportionate to the death, injury and damage. First, many non-civilian casualties indeed actually occurred. 13 It was reported that some 50 AAF soldiers had been killed or injured. Second,

EOC, 8(2) (b)(iv), n.37 (emphasis added). Gali, Trial Judgment, para 58. Gali, Trial Judgment, para 61, approved by the Gali Appeal Judgment, para.194. Article 52(2) of API. Paragraph 36.

10 11 12 13

the illegal activity by the AAF should be taken into consideration regarding the military necessity existed since then. 3.8 Colonel Potter has no knowledge of clear excessiveness. Even if the counterattack is proved unnecessary, we are obliged to judge the situation as it appeared to the accused at the time. 14 The course of a military operation by the enemy is loaded with uncertainties. The conditions, as they appeared to the accused at the time, that AAF fired from the shrine and temples, were sufficient upon which he could honestly conclude that urgent military necessity that counterattack to decline soldiers death of SAF warranted the decision made. 15 4. THE USE OF CLUSTER MUNITIONS AND WHITE PHOSPHOROUS IS LAWFUL 4.1 At present, the possession and use of cluster bombs are not prohibited in conventional or customary law 16 . The 2008 Convention on Cluster Munitions did not come into force yet so it has no biding force to the use of cluster munitions. However, the manner they use may contravene humanitarian law. The fact is the superfluous injury of civilians does not automatically render the attack a crime against humanity 17 . The essential issue is that whether the Potter intended the residential areas the primary object of attack 18 . The justifications should be considered based on military necessity and distinction 19 . 4.2 The use of cluster munitions was justified by military necessity. The primary objective of using the cluster munitions in the aerial attack was to neutral the

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EOC, 8(2)(b)(iv), note. 36. UNITED NATIONS WAR CRIMES COMMISSION. ICTY: final report, 39 I. L. M. 1257, (2000), para. 1264. Article 57 of API. Kunarac et al., Case No. IT-96-23/1-T, (2001), para. 421. Christopher Greenwood, Command and the Laws of Armed Conflict, 17 (1993).

Arkadian artillery positions in Mundo 20 . The casualties in the residential areas occurred as a by-product of the hostility but not the primary object of attack. Additionally, cluster munitions were used to facilitate distinctions. Potter had reminded his troops take reasonable measures to minimize the civilian casualties 21 . So the use of cluster munitions should not be deemed as indiscriminate. 4.3 Using white phosphorous as an incendiary weapon, i.e. to set fire to military targets, is subject to further restrictions 22 . But in the attack, Potter used white phosphorous merely to shield troops advancing 23 , a use for military necessity and should not be accused. 4.4 In addition, there were no convincing evidence of having used the cluster munitions and white phosphorous provided by the prosecutor. Since media and local NGOs had bias over the attack, there needs to be more evidence to proof the use of cluster munitions. Besides, no inevitable connection between the burn marks and the use of phosphorous were found. Therefore, the use of these two weapons cannot be fully proved and the credibility is doubtful. 5. THE AERIAL ATTACK IS LAWFUL 5.1 The aerial attack was of military necessity and was not an indiscriminate attack. The resistance in Mundo Valley was very strong and AAF got reinforcement from the nearby military base 24 . The decision of launching an aerial attack was to neutralize the artillery position and to pave way for the SAF troop 25 . As to Article 52 of API of Geneva Convention, attacks shall be limited strictly to military objectives. In this attack, Potter launched the attack

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Paragraph 39 Paragraph 41 http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/weapons-interview-170109?opend Paragraph 40 Paragraph 38 Paragraph 39

ocument
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against the AAF forces in Mundo 26 , thus the attack is a lawful attack. According to the customary international law, there should be distinction between civilians and combatants 27 . Potter reminded his troops of taking measures to minimize the casualties and this behavior is a kind of distinction. Since no evidence could proof that the casualty of civilians were caused directly by the aerial attack, this indirect and unintentional result of the lawful attack met the requirement of distinction. 5.2 Also, the attack was of military necessity. The fight in Mundo Valley was intense, and both sides suffered a heavy lost. Launch an aerial attack against AAF was of military necessity to neutralize the Targus base. From the result the goal was met. The casualty of civilians were not the primary goal of the attack and not even directly or intentionally. In all, the aerial attack was not the method of warfare which is inherently discriminate and did not violate the international law of conflict. 5.3 Besides, AAF is responsible for most civilian casualties as they used the Mundo Valley residential area to shield their operation 28 . Thus the residential areas cannot be treated as civilian objections and did not fall into the protection of Rule10 of Customary Rules of IHL.

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Id Rule 1, 2 of Rules of CIL Paragraph 43