SUMMARY OF PLEADINGS

The Respondent respectfully submits that Colonel C. Jones is not guilty of the crimes charged

herein in seriatim:

I. Colonel C. Jones is not liable for committing the war crime of violence to life and

person, in particular cruel treatment and torture. There is no Command Responsibility

on the part of Colonel Jones and he was not aware of the factual circumstances that

established the crime.

II. Colonel C. Jones is not liable for committing the war crime of intentionally directing

attacks against buildings, material, medical units and transport, and personnel using

the distinctive emblems of the Geneva Conventions. The instruction to regulate the

ambulances cannot be considered as an indication of intent to directly attack units

protected under the Geneva Conventions.

III. Colonel C. Jones is not liable for the war crime of intentionally launching an attack

with the knowledge that such will cause incidental loss of life or injury to civilians or

damage to civilian objects which would be clearly excessive in relation to the

concrete and direct overall military advantage anticipated.

I. COLONEL JONES IS NOT LIABLE FOR THE WAR CRIME OF VIOLENCE TO

LIFE AND PERSON, IN PARTICULAR CRUEL TREATMENT AND TORTURE

A. There is no Command Responsibility on the part of Colonel Jones

The Rome Statute of International Criminal Court provides for two (2) essential requisites before

a person in command would be held responsible for the acts of his subordinates under his or her

effective command and control, or effective authority and control as the case may be, as a

result of his or her failure to exercise control properly over such forces:

First, he must either know or, owing to the circumstances at the time, should have known

that the forces were committing or about to commit such crimes.

Second, the military commander or person failed to take all necessary and reasonable

measures within his or her power to prevent or repress their commission or to submit the matter

to the competent authorities for investigation and prosecution.”1

First, Colonel Jones was not aware of the alleged criminal acts committed by the security forces.

The detention facilities were directly under the authority of the KAF while being actually

operated by KESA officers. Clearly, KAF and KESA were the ones in charge.

Second, for a superior to be subject to command responsibility the crime must have been

committed by his/her subordinate(s) and such crime must have somehow resulted from the

superior’s failure to fulfill his/her duties.2

In this case, Colonel Jones has no effective control over said security forces. Effective control is

defined as the material ability to prevent or punish the commission of the offence.3 These

security forces acted out on their own accord in the process of interrogation and detention of

prisoners.

It was the Katoland president who established the “National Crisis Council” (NCC) on 15 th

January. He appointed Colonel C. Jones, who was then Minister of Defence and the Chief of the

Armed Forces, as executive Vice-Chairman of the Council. The president assumed the NCC

chairmanship. Though he himself is the Chief of the Armed Forces, Colonel Jones is not a

military commander of NCC, KAF and KESA. The KAF is an organization handled by the

President of Katoland. Thus, Colonel Calley Jones could not be held responsible on the basis of

superior responsibility as directed by Article 28 (a) of the ICC Statute.

B. The perpetrator was not aware of the factual circumstances that established the crime

1 Article 28 Rome Statute of the International Criminal Court2 Pechackova, Martina. The Nature of Command Responsibility under International Law, 23 Čelebići Trial Judgment, para. 378. affirmed in Čelebići Appeal Judgment, para. 256

The Rome Statute provides that in the case of an armed conflict not of an international character,

serious violations of article 3 common to the four Geneva Conventions of 12 August 1949,

namely, any of the following acts committed against persons taking no active part in the

hostilities, including members of armed forces who have laid down their arms and those placed

hors de combat by sickness, wounds, detention or any other cause:

(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment

and torture4

For Colonel Jones to be liable for the war crimes of cruel treatment and torture, he must be aware

of the factual circumstances that established the commission of such atrocities. One cannot

prevent what one does not know; nemo tenetur ad impossible - the law obliges no one to perform

an impossibility.

An individual's command position may be a significant indicator that he or she knew about the

crimes, however, such knowledge may not be presumed on the basis of his or her position alone.5

A superior can be held criminally responsible only if some specific information was in fact

available to him which would provide notice of offences committed by his subordinates. This

information need not be such that it by itself was sufficient to compel the conclusion of the

existence of such crimes. It is sufficient that the superior was put on further inquiry by the

information, or in other words, that it indicated the need for additional investigation in order to

ascertain whether offences were being committed or about to be committed by his subordinates. 6

In this case, knowledge of the alleged mistreatments were obtained only after several NGOs

reported such incidents. Not even the slightest of information was available to excite Colonel

Jones's suspicion regarding the existence of the alleged violations.

C. There is no concrete evidence as to the commission of the alleged commission of outrages

upon personal dignity, particular humiliating and degrading treatment.

4 Article 8(2)(c)(i)5 Čelebići Judgment, para. 45.6 Ibid, para. 393

The notion of “outrages upon personal dignity” is defined in the Elements of Crimes for the

International Criminal Court as acts which humiliate, degrade or otherwise violate the dignity of

a person to such a degree “as to be generally recognized as an outrage upon personal dignity”.

The Elements of Crimes further specifies that degrading treatment can apply to dead persons and

that the victim need not be personally aware of the humiliation.7 Moreover, the notion of

“degrading treatment” has been defined by the European Commission of Human Rights as

treatment or punishment that “grossly humiliates the victim before others or drives the detainee

to act against his/her will or conscience”.8

Among the persons arrested and detained under the Emergency Powers Ordinance, three (3)

detained women claimed that there had been violations to their rights as detainees and as women.

Based on the facts, it cannot be concluded that the detention constituted an outrage upon personal

dignity to be punished by the ICC. All measures were taken to ensure that persons detained

received fair treatment, as much as it was possible under the circumstances. Given the multiple

threats to national security, immediate measures were required. Thus, the acts were just required

in relation to the circumstances and security concerns.

More importantly, anyone charged with an offence is presumed innocent until proved guilty

according to law.9 Criminal proceedings require evidence establishing beyond reasonable doubt

that the accused is responsible for the crimes before a conviction can be entered.10

II. COLONEL C. JONES IS NOT LIABLE FOR THE WAR CRIME OF

INTENTIONALLY DIRECTING ATTACKS AGAINST BUILDINGS, MATERIAL,

MEDICAL UNITS AND TRANSPORT, AND PERSONNEL USING THE DISTINCTIVE

EMBLEMS OF THE GENEVA CONVENTIONS.

A. Colonel C. Jones did not intend to direct attacks against the medical units and transport

using the distinctive emblems of the Geneva Conventions.

7 Article 8(2)(b)(xxi) and (c)(ii) of the ICC Statute8 European Commission of Human Rights, Vol. II, Ch. 32, § 13399 Article 6(2)(d) of the 1977 Additional Protocol II10 Orić Appeal Judgment, para. 189

Additional Protocol II provides that the protection to which medical units and transports are

entitled shall not cease unless they are used to commit hostile acts, outside their humanitarian

function.11 Incidents involving the use of ambulances and small trucks by militia members trying

to leave the town were reported to the central command. In one instance, firing came from an

ambulance trying to bypass a control post and two soldiers were killed. These transports were

being used outside their humanitarian function and already for the militia forces advantages. The

issuance then of an instruction regulating the use of the ambulance cannot be considered as an

indication of an intent to direct attacks against them, but is the responsibility of Colonel Jones in

making sure that the same were being used only for their intended purposes. After the recent

attacks carried through the use of medical vehicles carrying makeshift emblems, the searches and

stoppage of medical transports were necessary to ensure the security of KAF. It was found that

the two victims of the instruction were DNA sympathizers—thus, a possibility of having

relationship with DNA could not be ignored. Given the multiple threats to national security, the

new instruction balanced the public right of health and military necessity.

Article 33 of the ICC statute provides that criminal responsibility of a perpetrator pursuant to an

order of a Government or of a superior, whether military or civilian, shall be relieved provided

that the following conditions are met: the person was legally obliged to obey the orders in

question; the person did not know that the order was unlawful; and the order was not manifestly

unlawful.12

Consequently, the elements of the crime provided by Article 8(2)(e)(ii) of the ICC Statute were

not fully met. There was neither actual attack nor intention to attack the protected persons and

objects. Hence, Colonel Jones cannot be criminally responsible.

B. The medical units and transport were not using the distinctive emblems of the Geneva

Conventions.

11 Additional Protocol II, Article 11(2)12 Art 33 (1) of the ICC Statute

Some ambulances displaying makeshift red cross emblems, were found to be transporting armed

men and ammunition. The ambulances were being used by the militia men to escape the

detection of the military forces. In times of armed conflict, the emblem may be used as a

protective device as the visible sign of the protection conferred by the Geneva Conventions and

their Additional Protocols on medical personnel and medical units and transports. The emblem

may also be used as an indicative device showing that a person or an object is linked to a Red

Cross institution.13 The issuance of the instruction to regulate ambulances cannot be deemed to

be a direct attack against the medical units and transports. The death tolls arising out of the

search were unintended and incidental to the legitimate orders arising from a military necessity.

In fact, misuse of the emblem as protective device in wartime is strictly regulated. Anyone who,

willfully and without entitlement, has used the red cross or red crescent emblem or a distinctive

signal, or any other sign or signal which constitutes an imitation thereof or which might lead to

confusion, shall be punished by imprisonment.14 Furthermore, the Geneva Conventions Act of

1957 provides that no person shall use the emblem without authorization from the Minister of

Defence.15 The significance of the emblem in armed conflicts cannot be overemphasized.

III. COLONEL JONES IS NOT RESPONSIBLE FOR THE CYBER ATTACK IN

BARGO POWER STATION IN DECEMBER 2010.

A. Contribution to the commission of such a crime by a group of persons acting with a

common purpose.

Under the Individual Criminal Responsibility of the Rome Statute, it required that such a crime

be committed or attempted by a group of persons. 16 It provides, that “A person shall be

criminally responsible and liable for punishment for a crime within the jurisdiction of the Court

if that person: In any other way contributes to the commission or attempted commission of such

a crime by a group of persons acting with a common purpose. Such contribution shall be

intentional and shall either:

13 31-08-1996 Article, International Review of the Red Cross, No. 313, Article 214 31-08-1996 Article, International Review of the Red Cross, No. 313, Article 1115 Geneva Conventions Act 1957, Section 1516 ICC, Mbarushimana Decision on Confirmation of Charges, par.271.

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group,

where such activity or purpose involves the commission of a crime within the jurisdiction

of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime;”

In the case at hand, clearly, there is no sufficient proof which may indisputably show that

Colonel Jones had any relevant knowledge about said crime, even more so had he any intent to

commit such crime with an organized group with the aim of furthering any of its criminal

activities or purposes.

As it may be noted, neither public investigations nor other forms of inquiry were done in order to

support the commentator’s presumptions. The mere strategic placement of the tanks and long-

range artillery in the hills overlooking Mesto river near Mesto’s main source of electric power, as

provided by the facts of the case, does not constitute clear and convincing evidence of Colonel

Jones’ knowledge or intent of the attempt nor commission of the said group crime per se. In fact,

as explained by Colonel Jones himself, such positioning of their tanks and long-range artillery

near Mesto’s main source of electric power was only due to the immediate necessity at that time

to regain control over West Drankonia, most especially Mesto, which was its capital.

Additionally, the facts also clearly showed that Colonel Jones neither executed an “attack” nor

created a criminal plan in relation with the destruction of their main electric source. Finally, even

assuming Katoland is thus responsible for such attacks, it must then be the KESA, rather than

Colonel Jones, who should be liable. The KESA was, after all, in charge of cyber activities and,

as shown by the facts given, Jones has no effective control over it.

The prosecution’s lack of sufficient evidence with regard to Colonel Jones’ intent and knowledge

to attempt or commit such a crime was negated by the fact that the positioning of such Katoni

forces were done not to tamper with the electrical powers of their enemies and by the fact that he

did not act with a group as provided by the statute.

B. Intentionally launching an attack causing incidental loss in the life or injury to civilians

or damage to civilian objects which would be clearly excessive in relation to concrete and

direct overall military advantage anticipated (Article 8(2)(b)(iv) of the ICC Statute)

Relevant provisions of said Article states that, “For the purpose of this Statute, "war crimes"

means: (b) Other serious violations of the laws and customs applicable in international armed

conflict, within the established framework of international law, namely, any of the following

acts: (iv) 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;  

In general, the essential elements of said crime includes: a) That the perpetrator launches an

attack knowing it would cause death, injury or damage clearly excessive to the advantage

anticipated and b) That the perpetrator is aware of factual circumstances that established the

existence of an armed conflict and acts in the contexts of such international armed conflict.

On the first hand, it may be argued that cyber-attack cannot actually be familiarized with the

term “attack” as used in the context of armed conflict. In international humanitarian law,

“attack” refers to a particular category of military operations. Article 49(1) of the 1977

Additional Protocol I to the 1949 Geneva Convention defines “attacks” as “acts of violence

against the adversary, whether in offence or in defence.”17 In the case involved, the facts stated

showed that an unidentified and untraced virus caused damage to the general power system.

However, no military operation or combat action involving parties to the conflict took place.

With this in mind, it is therefore clear that no attack was launched. In addition, is also important

to bear in mind that the notion stated above only attains relevance once an “armed conflict” is

underway as both the presence of both an attack and an armed conflict constitutes the essential

elements of the crime accused to Colonel Jones in the case at bar. It must also be noted that

absent such a situation, domestic and human rights law, not humanitarian law, governs the

activities in question. 18

17 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 49.1, June 8, 1977, 1125 U.N.T.S. 3.

In this case, according to the given facts, no armed conflict actually existed between FRB and

Katoland in the first place when the so-called cyber-attack was launched. Moreover, the Head of

KESA, Katoland and President Stark, who were supposedly involved in the accused crime, do

not belong to armed forces.

In line with such facts, it was clear that there was the absence of the essential elements – attack

and armed conflict, thus the war crime under Article 8(2)(b)(iv) of the ICC Statute, again, cannot

be satisfied and pursued against Jones.

C. Intentionally directing attacks against the civilian population as such or against

individual civilians not taking direct part in hostilities

There are five elements to constitute the war crime of attacking civilians under the Rome Statute.

In the case at bar however, three of which were unsatisfied. As earlier discussed, there was no

attack and the element of intent on the part of Colonel Jones was missing. Finally, the last

unsatisfied element was that of the attack made on civilians.

The course of action taken by Colonel Jones in strategically placing the Katoni forces and

weaponry was motivated purely by his desire and the immediate necessity to gain control over

West Drakonia and not to particularly and directly attack civilians. It is undisputed that civilian

protection ceases when it is unavoidable, especially when military objectives are prioritized.

Their positioning did not necessarily mean that Colonel Jones actually wanted to involve

civilians as he obviously had other military objectives in mind. 19

For Colonel Jones, the Bargo station, being the supplier of electricity to an FRB military base,

was the most strategic location to position his fleet due to the definite military advantage it

offered. Thus, despite the unavoidable damage to civilians this positioning might have caused,

Colonel James cannot be held liable under the accused crime because the attack did not actually

target these civilians per se.

Lastly, it must be noted that the cyber-attack was only a solitary occurrence. An attack directed 18 “Attack” as a Term of Art in International Law: The Cyber Operations Context, 4 th International Conference on Cyber Conflict, NATO CCD COE Publications, Talinn, (2012), available at http://www.ccdcoe.org/publications/2012proceedings/5_2_Schmitt_AttackAsATermOfArt.pdf.19 ICTY, Zoran Kupreskic Trial Judgment, paras.522-523.

against civilian population requires multiplicity of commission of crimes against humanity.20 If

the attack is not widespread, such fact is sufficient to exclude isolated or random acts.21

As previously stated, the death, injuries and damages caused were merely incidental and not

intentional, much less its primary purpose. Hence, the attack cannot be considered a crime

against humanity, much less directed against civilian population.

PRAYER

Based from the aforementioned arguments, we pray that Colonel Calley Jones be

acquitted from all the criminal charges that had been filed against him before the International

Criminal Court at Hague.

20 Prosecutor v. Akayesu, Judgment, September 2, 1998, para. 57921 Prosecutor v. Tadic, ICTY Trial Chamber, par. 646