10th Red Cross International Humanitarian Law Moot (2012)
The Moot Problem
IN THE INTERNATIONAL CRIMINAL COURT
PROSECUTOR v. HERMON
1.
INSTRUCTIONS TO TEAMS:
1.1 This is the final stage of a trial before a Trial Chamber of the International Criminal Court
(“ICC”). The Presiding Judge has declared that the submission of the evidence is closed,
and the parties are now to make their closing statements in accordance with Rule 141 of the
Rules of Procedure and Evidence of the ICC. At this stage, both the Prosecution and the
Defence agree that the evidence supports the facts as set out below, and there is no longer
any issue of fact in dispute between them. In their closing statements, the Prosecution and
Defence are therefore addressing disputed issues of law only.
1.2 Teams acting for the Prosecution will be known as the “Prosecution”. Teams acting for
the Accused, Colonel Hermon, will be known as the “Defence”.
1.3 Teams should confine themselves to the facts supplied. The facts are entirely fictitious.
1.4 Teams may be assisted by looking at case law of the International Criminal Tribunals for
the Former Yugoslavia and Rwanda, the Special Court for Sierra Leone and the ICC, as well
as relevant decisions of national courts or other international courts. If teams rely on
decisions of national courts, these should be leading decisions and teams should expect to
be asked for copies of the headnote and the portion of the transcript or judgment referred to
in argument. It would be advisable to have copies of the headnote and the section or part of
the judgement to be relied upon available for all judges in the moot in which the team is
competing in the event a judge asks to see this reference. Teams should not hand
anything to judges unless asked to by a judge.
1.5 The problem is not intended to raise questions of procedure before the ICC.
Procedural questions should be ignored.
1.6 The problem is not intended to raise questions relating to the jurisdiction of the ICC.
The jurisdiction of the ICC should be assumed.
1.7 Although issues of admissibility are not normally dealt with in ICC proceedings in
closing statements at the end of a trial, counsel should in this instance address issues
regarding the admissibility of the case under article 17 of the Statue of the ICC (“Statute”).
1.8 Counsel are advised to consider not only the Statute of the ICC, but also the Elements
of Crimes adopted under Article 9 of the Statute.
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2.
THE FACTS
2.1 Northland and Southland are independent states that were formed out of a European
colony some 80 years ago. They are both located on the western seaboard of a continent,
Northland being the immediate northern neighbour of Southland. The River Trapp forms
the border between the two states (the border being the middle of the river). Northland is a
significantly wealthier country than Southland. Relations between the two countries have
since independence been fragile, in large part because Northland still maintains certain
historic claims to the northern part of Southland’s territory.
2.2 About 300 kilometres from the western seaboard of the continent is a mountain range
known as the Dividing Mountains, which runs in a north/south direction. The eastern
borders of both Northland and Southland run through the middle of this range.
2.3 The River Trapp begins in the far north-east of Northland, high in the Dividing
Mountains, and flows for about 200 kilometres in a southerly direction through Northland,
through or along the base of the Mountains, before turning to flow in a westerly direction for
300 kilometres until it reaches the sea. It is from the point where it turns west that it forms
the border between Northland and Southland.
2.4 The capital of Northland is New Inn, located on the sea some 200 kilometres north of
the river mouth. The capital of Southland is Ashfield, some 200 kilometres south of the river.
2.5 About 100 kilometres upstream from the river mouth, straddling both sides of the river,
is the historical trading village of Princes Gate. Historically, both Northland and Southland
have each claimed sovereignty over the part of Princes Gate that falls within their own
territory.
2.6 There are three main ethnic groups in the region:
Riverlanders.
Northerners, Southerners and
2.7 Northerners are the largest group in Northland. They were the dominant group in
colonial times in the entire region. Since independence, they have dominated political
power, senior positions in the government, public service and military, and the business
sector in Northland. Since colonial times they have enjoyed much better education, wealth
and influence than other groups. Northerners live mainly in the north and northwest of
Northland, including in the capital, New Inn.
2.8 Southerners are the largest group in Southland, and are the vast majority of the
population in almost all parts of that country, except in the north, in the region running along
the edge of the River Trapp.
2.9 Riverlanders are the second largest group in both Northland and Southland. They are
the vast majority of the population in a strip of land, approximately 100 kilometres wide,
running along both sides of the entire length of the River Trapp. Thus, Riverlanders are
concentrated in the south and east of Northland, and the north of Southland. Princes Gate
is the only significant urban centre in this region, and its population consists almost entirely
of Riverlanders. Significant numbers of Riverlanders in Northland have also moved to New
Inn and other urban centres.
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2.10 During colonial times, Riverlanders were a marginalised people. Since independence,
the Government of Southland has undertaken significant initiatives, with considerable
success, aimed at redressing the historic economic, social and political disadvantages of the
Riverlanders of Southland.
Similar initiatives have not been undertaken by the
Government of Northland, where Riverlanders remain, even today, a marginalised people.
The Riverlanders of Northland are mainly subsistence farmers in the River Trapp region, or
in low-paid employment in towns, or in the lower ranks of the armed forces. The relatively
few Riverlanders in the higher ranks of the armed forces are confined to the army. This
marginalisation has caused intense resentment amongst the Riverlanders in Northland.
2.11 In the late 1990s, the Government of Northland constructed a large irrigation canal
from a lake in the north of the Dividing Mountains called the Blue Lake, which is the main
source of the River Trapp. The Blue Lake, and the area through which the initial stretch of
the canal runs, are in a region of the Dividing Mountains called the Lake District where
Riverlanders are in the majority. The canal diverts water from the lake to irrigate large
agricultural complexes in the northwest regions of Northland, populated by Northerners. In
times of drought, this diversion of water leads to water shortages in the farming areas along
the river itself, populated by Riverlanders. The construction of this canal has further fuelled
the resentment of Riverlanders.
2.12 In 2000, a group called Break away from Northland (“BAN”) became active. It called
for the independence of the areas of Northland in which Riverlanders were in the majority.
The BAN initially enjoyed some international sympathy. However, in the early 2000s, after
the BAN began conducting indiscriminate suicide bombings, and using torture of captured
Northland officials and military personnel as a means of pressuring the Northland
Government, it came to be labelled internationally as a terrorist organisation.
2.13 Although the Government of Southland was generally sympathetic to the situation of
Riverlanders in Northland, it had concerns that an independent Riverland would make
claims on the parts of Southland’s territory where Riverlanders are the majority. From the
early 2000s, the Government of Southland was united with the Government of Northland in
its commitment to combat the BAN as a terrorist group.
2.14 In early 2006, a severe drought affected all regions of both countries. One measure
that the Government of Northland took was to authorise an increase in the amount of water
to be diverted from the Blue Lake to the agricultural regions of the northwest of the country.
This alleviated the effects of the drought in areas where Northerners were in the majority, but
made water shortages all the more acute in areas along the River Trapp where Riverlanders
were in the majority. In the latter areas, fears arose of imminent widespread crop failure.
2.15 At this point, the resentment of the Riverlanders exploded. Those members of the
Northland armed forces who were Riverlanders deserted, taking arms and equipment with
them, and formed the Armed Forces for the Liberation of Riverland (“AFLOR”). AFLOR
tried unsuccessfully to incorporate into its ranks members of the BAN on condition that they
renounced terrorism and would abide by the laws of war, but BAN members would not
accept this condition and remained a separate organisation. However, both organisations
were pursuing the same aim, and it was clear that there was a level of close cooperation
between the two.
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2.16 A full-scale armed conflict developed between the Government of Northland on the
one hand, and AFLOR and the BAN on the other. The AFLOR leadership sought from the
beginning to ensure that AFLOR forces complied with the laws of war. It was generally but
not always entirely successful. AFLOR generally treated those captured humanely,
although it was widely known that the conditions in which it kept prisoners were extremely
harsh. This was not deliberate, but the result of the fact that AFLOR generally lacked
resources, such that its own forces also had to live and work in harsh conditions.
2.17 As for the BAN, it made no pretence of seeking to comply with international
humanitarian law, and routinely tortured and killed prisoners. Amongst Northerners, the
general public and lower ranking officials and military personnel did not understand the
distinction between AFLOR and the BAN, and referred to both collectively as the “BAN” and
as “terrorists”. Many genuinely feared that if they should ever fall into the hands of the
“BAN”, they would face inevitable torture and/or death. However, more senior Northland
officials and military officers did understand the distinction between AFLOR and the BAN.
2.18 In the armed conflict, there were also numerous high-profile violations of the laws of
armed conflict by Northland Government forces.
2.19 From the time of its formation, AFLOR received considerable support and assistance
from Riverlanders in Southland. Indeed, some AFLOR forces were permitted by
Riverlander communities in Southland to base themselves in those communities, and to
launch attacks into Northland from there. In early 2007, the Government of Northland
announced that it considered that Southland had violated international law by not taking
action to prevent its territory from being used as a base for terrorist attacks on Northland,
and said that if Southland did not take such action immediately, Northland’s forces would
move into Southland to do the job for them.
2.20 The announcement had the opposite of the intended effect. The Government of
Southland believed that Northland was intending to use the situation as a pretext to annex
parts of Southland’s territory that Northland had historically claimed, and feared that
Northland might be about to invade Southland for that purpose. To counter this, the
Government of Southland quickly entered into an agreement with AFLOR and the BAN that
it would support them both, in return for which AFLOR and the BAN would renounce any
claim to any part of Southland’s territory. Southland hoped that a future independent
Riverland would form a buffer-state that would protect Southland from any future threat from
Northland ambitions.
2.21 From early 2007, pursuant to this agreement, Southland provided large amounts of
finance, equipment and training to AFLOR and the BAN, and permitted them to establish
bases in Southland territory from which they could conduct operations into Northland. The
Southland military also provided expert advice to AFLOR and the BAN, to the point where it
was the Southland armed forces which directed the overall strategy and high-level planning
of both AFLOR and the BAN, and the leadership of AFLOR and the BAN then implemented
that strategy and high-level planning. However, the Southland armed forces had no
detailed involvement in, or even any advance knowledge of, individual operations of AFLOR
or the BAN.
2.22 In mid-2007, the drought in the region severely worsened. The Government of
Northland reacted by diverting even more water through the canal to the north-west of the
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country. The River Trapp dried up to a trickle. There was widespread crop failure all
along the river, although the inhabitants had sufficient food reserves that, together with
international aid, food shortages were unlikely to become a major problem for some time.
The only remaining supply of drinking water in the whole river region came from two
reservoirs near Princes Gate, but supplies were sufficient for the population’s survival for the
foreseeable future.
2.23 A priority for AFLOR and the BAN was to capture the Lake District, and to close the
canal. An AFLOR unit managed to capture this area, but could not close off the canal until
personnel with the required engineering experience arrived. Colonel Hermon of the
Northland Government forces was ordered to recapture the Lake District before this could
happen. For several weeks in August 2007, a battle took place between Colonel Hermon’s
forces and the AFLOR forces in the region.
2.24 At one point in the battle, one of the units under Colonel Hermon’s command, 316
Company, found itself surrounded and vastly outnumbered by AFLOR forces. The
commander of 316 Company, Captain Sure, realised that if his forces fought on, they were
all certain to be rapidly killed in combat. However, Captain Sure’s troops were adamant
that they did not want to surrender, because they were convinced that they would face
torture and/or execution in the hands of the “BAN”. Captain Sure himself understood the
difference between AFLOR and the BAN, but mistakenly believed that the surrounding
enemy forces were from the BAN. Captain Sure decided that desperate measures were
required to enable his forces to escape, and devised a plan. This involved deliberately
setting fire to two neighbouring villages, Weston and Easton, as well as to all the
surrounding agricultural fields belonging to the villagers, all of whom were Riverlanders.
There were no AFLOR forces in either of the villages or fields, but Captain Sure considered
that the ensuing fire would generate a smoke cloud that would engulf a wide area, under
cover of which Captain Sure’s soldiers would be able to make their way through the AFLOR
lines without being detected.
2.25 Shortly before putting his plan into effect, Captain Sure was able to contact Colonel
Hermon by field radio to explain what he was planning to do. Colonel Hermon had
reservations about the plan’s legality. Colonel Hermon immediately contacted the legal
section of the Armed Forces for legal advice. The legal adviser on duty was clearly young
and inexperienced. He said that he could not immediately see anything that would be
illegal in what was planned, that he would look at it in more detail, and that he would
definitely get back to Colonel Hermon speedily if he decided that there was any legal
problem. Colonel Hermon never heard back from the lawyer, and therefore never
instructed Captain Sure not to implement his plan.
2.26 Later that evening, Captain Sure put his plan into operation. It was largely a success.
Under cover of a large smoke cloud, of his 180 remaining soldiers, 150 managed to make
their way to safety through the AFLOR lines and to regroup with other Government forces.
Of his other soldiers, 20 were killed while trying to make the escape, and another 10 were
captured by the AFLOR forces, and treated humanely as prisoners. As a result of the
operation, 30 civilian villagers were killed in the fire. Two hundred other villagers survived,
but lost their homes and everything they had in the blaze.
2.27 By the end of August 2007, Colonel Hermon’s forces had succeeded in recapturing the
Lake District from AFLOR, before AFLOR had managed to shut down the canal. His forces
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then remained in occupation of the area and defended it against subsequent attempts by
AFLOR forces to retake it.
2.28 In December 2007, Northland Government air force planes bombed the two reservoirs
near Princes Gate. The chief of the air force, Air Chief Marshall Pike, was open about his
reason for ordering this. He said that with no water supplies in the area, the population
would rapidly have no choice but to submit. Drinking water in all areas along the River
Trapp was consequently immediately in catastrophic short supply. In various places along
the river, members of the local population began to die from dehydration, and the rest of the
population suffered terribly. As time passed, the number of affected areas rapidly grew, as
did the number of deaths, which eventually reached the thousands. However, this did
nothing to put an end to the operations of AFLOR or the BAN. Indeed, AFLOR and the
BAN now seemed even more determined to achieve the quickest possible victory over the
Northland Government. These events were international news, and Colonel Hermon was
aware of them as they happened.
2.29 The international community was shocked and outraged. The United Nations
Security Council adopted a resolution condemning Northland. International organisations
and NGOs in Northland, and governments of many different countries, tried to persuade the
Government of Northland to close the canal, in order to alleviate the crisis in the Riverland.
It became clear that there was no military advantage to the Northland Government in
depriving the Riverland area of drinking water.
2.30 In the course of a mission in the Lake District in January 2008, the United Nations
Special Representative of the Secretary-General (SRSG) in Northland spoke directly with
Colonel Hermon, urging him to close the canal which was under the control of his forces.
Colonel Hermon expressed sympathy for the plight of those living in the Riverland, and even
relayed the SRSG’s message to his superiors during the course of the meeting. Before the
meeting with the SRSG had concluded, Colonel Hermon received a reply from his superiors
that it was imperative that the canal remain open. Colonel Hermon informed the SRSG of
the reply, expressed his regrets, and said that “orders are orders”.
2.31 In March 2008, Colonel Hermon received an urgent order from his superior, Brigadier
Smooth. Brigadier Smooth informed him that the Dragon Detachment, another unit under
Brigadier Smooth’s command (but not under Colonel Hermon’s command) had just
summarily executed the entire civilian population of a large village in the region, Rustica.
All of the victims were Riverlanders. Brigadier Smooth said that he had personally ordered
the executions. Brigadier Smooth added that he had assured the commander of the
Dragon Detachment when giving the order to conduct the executions that all trace of the
executions would be removed after the event. Brigadier Smooth said that the Prosecutor of
the International Criminal Court had recently foreshadowed opening an investigation into the
situation in Northland, and that he had needed to assure the commander of the Dragon
Detachment beforehand that the world would never know that the executions had ever taken
place. Brigadier Smooth then ordered Colonel Hermon to remove all trace of the
executions. In accordance with his orders, Colonel Hermon sent a unit of his troops to
Rustica, where they dug mass graves and buried the victims of the crimes, and covered up
all evidence of what had occurred there.
2.32 In June 2008, a revolution took place in Northland. Unexpectedly and rapidly, political
groups of Northerners opposed to the Government joined forces with AFLOR to topple the
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Government. A new government was formed, consisting of former leaders of Northerner
opposition groups and former AFLOR commanders. The armed conflict came to an end.
The new President of the country announced the beginning of a new era of democracy and
human rights, and immediately ordered that the canal be closed, and that emergency repairs
be undertaken to the two reservoirs near Princes Gate.
2.33 In August 2008, the new Government announced the setting up of a Truth and
Reconciliation Commission (TRC). The TRC was given the mandate of investigating
comprehensively, and preparing a report on, the causes of the armed conflict, and violations
of human rights and international humanitarian law committed by all sides during the course
of the armed conflict. The legislation establishing the TRC provided that anyone who
appeared voluntarily before the TRC to give evidence, and who gave a full, complete and
truthful account of their role in events, would not face prosecution for any crime that they
may have committed in the armed conflict. Prosecutions could be brought, and indeed
were brought, against those who refused to give evidence before the TRC, or were found not
to have told the truth to the TRC.
2.34 In December 2008, Colonel Hermon appeared and gave evidence before the TRC.
He gave a full, complete and truthful account of the events above. In accordance with the
legislation establishing the TRC, he was not prosecuted for any crime. However, the TRC
concluded that it was “unprincipled” of him not to have prevented the burning of Weston and
Easton in August 2007, that he “shared some of the moral responsibility” for the water
catastrophe in the Riverland in 2007-2008, and that he had “dirtied his hands” in relation to
the Rustica massacre in March 2008. He was dishonourably discharged from the army.
2.35 In January 2009, the Prosecutor of the ICC opened an investigation into the situation in
Northland. By late 2009, various members of the former Government, of the Northland
armed forces, of AFLOR and of the BAN had been charged with crimes by the ICC.
Colonel Hermon is one of them.
3.
APPLICABLE TREATIES:
3.1 At all material times, Northland and Southland were parties to the ICC Statute.
3.2 At all relevant times, Northland and Southland were parties to the Geneva Conventions
of 1949 and their 1977 Protocols.
4.
THE CHARGES:
Colonel Hermon is being tried by the ICC on the following charges.
First count:
In respect of the burning of Weston and Easton in August 2007:
on the basis of superior responsibility (Article 28(a) of the Statute)
(a) the war crime of intentionally directing attacks against civilian objects (article
8(2)(b)(ii) of the ICC Statute); alternatively
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(b) the war crime of intentionally directing attacks against the civilian population as such
or against individual civilians not taking direct part in hostilities (article 8(2)(e)(i) of
the ICC Statute).
Second count:
In respect of the continuing diversion of water from the Blue Lake through the canal and/or
failing to close the canal from December 2007 to July 2008:
on the basis of aiding and abetting (Article 25(3)(c) of the Statute)
(a) the war crime of using starvation of civilians as a method of warfare by depriving
them of objects indispensable to their survival (article 8(2)(b)(xxv) of the ICC
Statute); alternatively
(b) the war crime of violence to life and person (article 8(2)(c)(i) of the ICC Statute).
Third count:
In respect of the covering up of evidence of the massacre in Rustica in March 2008:
on the basis of aiding and abetting (Article 25(3)(c) of the Statute)
(a) the war crime of wilful killing (article 8(2)(a)(i) of the ICC Statute); alternatively
(b) the war crime of violence to life and person, in particular murder (article 8(2)(c)(i) of
the ICC Statute).
5.
THE POSITIONS OF THE PARTIES:
5.1 The position of the Prosecutor is that:
(a)
The armed conflict was an international armed conflict, and Colonel Hermon is
guilty of the first alternative charge in each count.
(b)
Alternatively, if the armed conflict was a non-international armed conflict,
Colonel Hermon is guilty of the second alternative charge in each count.
(c)
Colonel Hermon has no defence to any of the charges.
(d)
The establishment of the TRC in Northland does not render the ICC
proceedings inadmissible.
5.2 The position of the Defence is that:
(a)
The armed conflict was a non-international armed conflict, and accordingly,
Colonel Herman cannot be guilty of the first alternative charge in each count.
(b)
On the facts of this case, the legal elements of each of the crimes charged are
not satisfied.
(c)
Colonel Hermon has defences to each of the charges under articles 31-33 of the
Statute.
(d)
The case is in any event inadmissible by virtue of article 17 of the Statute.
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