PROSECUTIONQUESTIONSANSWERS

1. What are you trying to prove in this case?There is sufficient ground to charge Admiral Gusman of the war crimes imputed against him.

2. Why is Gusman the only person being charged in this case?Although, we are charging Admiral Gusman in this case alone, we are not discounting the liability of others who have a hand in the commission of these war crimes.

3. Why is IHL applicable in this case?International humanitarian law applies to in two situations. IAC and NIAC. Since in an IAC exists in the present case, then IHL shall apply.

According to Common Article 2 of the Geneva Convention of 1949, the Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

International armed conflicts are those in which at least two States are involved.[footnoteRef:2] [2: What is IHL?, ICRC, 2004, p.1]

INTERNATIONAL ARMED CONFLICT

1. Is there an armed conflict or is it just an internal disturbance?There is an armed conflict, of international nature.

International armed conflicts exist whenever there is resort to armed force between two or more States.

Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization.

Internationalized Armed Conflict is a situation that can occur when a war occurs between two different factions fighting internally but supported by two different states. The most visible example of an internationalized armed conflict was the conflict in the Democratic Republic of Congo in 1998 when the forces from Rwanda, Angola, Zimbabwe and Uganda intervened to support various groups in the DRC.[footnoteRef:3] [3: Stewart, G.S. (2003), Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict, 85(850):313-350]

Internal disturbances are characterized by a serious disruption of internal order resulting from acts of violence which nevertheless are not representative of an armed conflict (riots, struggles between factions or against the authorities, for example).[footnoteRef:4] [4: IHL, Answers To Your Questions, ICRC]

2. Why is there a need to differentiate between an IAC and a NIAC?Because all the war crimes require the presence of an international armed conflict.

3. If there is no resistance since the Governor of Yukule surrendered, how can there be an armed conflict?

4. Which parties are in an armed conflict? Are they High Contracting Parties?Bereto and Astro. Since they are signatories to the Rome Statute and the Conventions, then they are High Contracting Parties.

5. Where did the armed conflict exist?Yukule.

6. When did the armed conflict start?When Astron forces proceeded to invade Port Solferino.

7. How can you say that Yukule is a dependent of Bereto? Is it really a dependent or is it an annex? What is the difference between a dependency and an annexed?

8. What are the elements of a state? Why is the Montevideo Convention being cited?

9. Is it necessary that the other countries recognize Yukule as a State?

10. What is the binding effect of the Islands of Palmas case in the present case? Which court promulgated the said case?The Islands of Palmas case Submitted to the arbitration of the Permanent Court of Arbitration under Article 3 of the Treaty of Paris in 1938.

CHARGE 1 STARVATION and ICR through ANOTHER

11. What is starvation?AP1, Art. 54: Starvation is present when any of the following is present (1) objects indispensable to the survival of the civilian population are destroyed or withheld or (2) means which may lead the civilian population with such inadequate food or water is employed.

12. Is the prohibition against starvation mandatory?Yes.

13. How is starvation used in this case?

14. Why are the Astron forces not justified in stopping the importation of goods?

15. Is the MCZ a valid action of Astro?No. According to Article 42 of the 1907 Hague Regulations, the occupying territory does not acquire sovereignty over the occupied territory.

16. Are the acts committed in relation to an armed conflict?

17. Why is Gusman being charged under the basis of ICR through another? Why not charge him on the basis of ICR through ordering?

CHARGE 2 CIVILIAN POPULATION and SUPERIOR RESPONSIBILITY

18. Why is Gusman being charged under the basis of Superior Responsibility? What is the difference between Superior Responsibility and Command Responsibility?Gusman is being charged under the basis of Superior Responsibility because he exercises effective control over his subordinates and he failed to prevent or punish his subordinates in committing the war crime charged against him.

DIFFERENCE BETWEEN SUPERIOR AND COMMAND RESPONSIBILITY.

First, it has separate rules for military commanders and civilian superiors. In case of military commanders, the prosecution must show that they knew or, owing to the circumstances at the time, should have known.

The standard is higher for civilian superiors because the prosecution must demonstrate that they knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes. This is probably a progressive development, not the codification of existing customary international law.

Second, the standard for military commanders is higher than in the ICTY and ICTR Statutes. While the ICTY and ICTR have stressed that the mental element is not about negligence (had reason to know), the ICC Statute introduces negligence (should have known), failure to look for information may lead to criminal liability.

In the case of Jean-Pierre Bemba Gombo, the Pre-Trial Chamber confirmed explicitly that the had reason to know and should have known standard are different, but the interpreting criteria developed by the tribunals may still be useful when applying the should have known standard.

19. Elements of Superior Responsibility.

20. What is effective control under superior responsibility?

21. What is the nature of Gusmans authority?

22. Is Ayana responsible?

23. Isnt it too soon to say that Gusman failed to punish his subordinates?

24. What is your basis in saying that the investigation is just a sham?

25. Isnt it that Gusman is not aware of the crime being committed on board the Nirvana since he has no way of knowing that such crime was committed?

26. Who fired the first shot?

27. Isnt that the commando is just acting in self-defense?

28. Was there an order of Gusman to attack civilians?

29. When do civilians lose their protection?

30. When did the civilians start to take direct part in the hostilities?

31. Armed Sphinx Guards are present on board Nirvana, hence, the commando is justified in attacking Nirvana.

32. The passengers themselves cannot distinguish where the shots where coming from. It is clear that they are taking direct part in the hostilities. How can you say that they are protected persons?

CHARGE 3 EXCESSIVE ENVIRONMENTAL DAMAGE and ICR through ORDERING

33. Who caused the oil fires?

34. Why is the crime being imputed to Gusman and not Freedman?

35. Is there an excessive incidental damage? How do you assess the excessiveness of the damage?

36. Is there an order from Gusman to cause the attacks?

37. Differentiate your basis under Charge 1, 2, and 3.

38. What is the military advantage in this case?To stop the advancement of the Bereton forces.

39. Types of Individual Criminal Responsibility.Ordering, Soliciting, Inducing and Through Another.

40. Foreseeable time.Bereton forces are advancing and there is an immediate need to stop them.

41.

DEFENSEQUESTIONSANSWERS

1. If there is no IAC, does this tribunal has jurisdiction over this case?

2. Are you conceding that there is an attack?

3. Are you saying that the attacks of the Astron forces are justified?

4. What is the military necessity in this case?Pressure the militia to surrender.

5. Isnt it a fact that the Yukulean population is mainly dependent in imports, therefore, when Gusman curtailed the importation of the goods, then, there is an intent to starve the civilian population?

6. When Hanson ordered the open fire, do you not consider that as an attack to the civilians? Is it, therefore, your stand that the civilians were valid military objectives? How about the passengers who were peacefully protesting?

7. Cite the specific instance when the civilians directly participated in the hostilities.

8. Are you saying that the acts of the commando are justified because of the adverse reaction of the passengers when they boarded the vessel?

9. Dont you think that the attacks are disproportionate?

10. Assuming, without conceding, that the civilians were indeed taking direct part in the hostilities, is the commando justified in attacking, considering that the civilians were only carrying improvised weapons?

11. What is the basis of the commando in inspecting Nirvana?

12. What do you mean be collateral damage?

13. Did Gusman punish his subordinates?

14. How about the allegation that the investigation is a sham?

15. TuQuoque principle - Kupreskic et al., (Trial Chamber), January 14, 2000, para. 51, 515-520: The argument at issue amount[s] to saying that breaches of international humanitarian law, being committed by the enemy, justify similar breaches by a belligerent. However, the tuquoquedefence has no place in contemporary international humanitarian law. The Trial Chamber rejected the tuquoque principle as it is fallacious and inapplicable in international humanitarian law. It has been universally rejected and flawed in principle since [i]t envisages humanitarian law as based upon a narrow bilateral exchange of rights and obligations. Rather, the bulk of this body of law lays down absolute obligations, namely obligations that are unconditional or in other words not based on reciprocity.

16. Why is ENMOD being cited?

17. Are you saying that the attack on the environment is proper?

18. Is there a need for explicit order from Gusman? Is it not enough that Gusman ordered to resort to all measures to stall the enemy to indicate the intent to cause excessive incidental damage?

19. Is there any other way to stall the enemy?

20. What is the principle of legality?

21. Is the MCZ a valid action of Astro?Yes. Under Art. 43 of the 1907 Hague Regulations, the authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

22. Isnt it enough that Gusman impeded the importation of supplies?

23. If there is starvation of those who are not civilians, will the attacks be unlawful?

Isnt it that the purpose of MCZ is to suppress the resistance militia, and thus, the starvation of civilians are merely incidental.

What does GCIV cover and relate it to other GCs.

Is it also your stand that the starvation is merely an incidental damage?

If the Astron forces are closely monitoring the supplies, then why is there still a need to suppress the supplies which could easily be given to the civilian population?

Are the oil spills environmental modification techniques

Define Perfidy.APl I defines perfidy as acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence

Define Civil Defense OrganizationsArt 61 API civil defense organizations means those establishments and other units which are organized or authorized by the competent authorities of a Party to the conflict to perform any of the tasks mentioned under sub-paragraph (a) and which are assigned and devoted exclusively to such tasks.