MEMORIAL FOR THE APPLICANT -Pleadings and Authorities-

PLEADINGS AND AUTHORITIES

The ICC was established to address unimaginable atrocities that deeply shock the conscience of humanity,1 thus the most serious crimes of concern to the international community as a whole must be punished.2 The Court should put an end to impunity of perpetrators that threaten the peace, security and well-being of the world.3

I. DAVID DABAR IS LIABLE FOR CRIMES AGAINST HUMANITY OF FORCIBLE TRANSFER

According to Article 49(6) of the Fourth Geneva Convention, reflective of customary international law , any kind of transfer of the occupying power's population to the occupied territory is prohibited, regardless of whether the transfer was voluntary or forced. Forcible transfer is the involuntary and unlawful displacement of persons from the territory in which they reside.5 All of the elements to satisfy the commission of the crime of forcible transfer are present.
1

Lemis were forcibly transferred for reasons exclusive from the grounds permitted by international law. According to Art. 45. xxx Protected persons may be transferred by the Detaining Power only to a Power which is a party to the present Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the present Convention. If protected persons are transferred under such circumstances, responsibility for the application of the present Convention rests on the Power accepting them, while they are in its custody. Nevertheless, if that Power fails to carry out the provisions of the present Convention in any important respect, the Power by which the protected persons were transferred shall, upon being so notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the protected persons. Such request must be complied with. In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.xxx xxx Only two exceptions are recognized by International Humanitarian Law in case of displacement: 1) for the security of civilians and 2) for imperative military reasons. In case civilians are displaced, prior arrangements must be made for their shelter.11 The transfer of Lemis to Berryland does not contemplate any of these exceptions.

II. DABAR IS LIABLE FOR WAR CRIME OF TAKING HOSTAGES

Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: XXX the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. XXX Article 3 of the Geneva Convention prohibits the taking of hostages. There is taking when the perpetrator seized or detained a person, combined with the threat to kill or injure the hostage, in order to compel a third party to do any act as a condition for the release of hostages. The incidents on June 12, 2009 satisfies the elements of this war crime.

The taking of hostages was perpetrated in an armed conflict not of an international character; the NDRA knew the existence of an armed conflict. An armed conflict is said to exist whenever there is protracted armed violence between governmental authorities and organized armed group within a State. There was merely an internal armed conflict. The crime was committed on February 2009, prior to their independence on 29 May 2009. At that time, other states and NDRA themselves recognize the fact that Losovo is still a province of Vanilia.

III. DABAR IS LIABLE FOR THE WAR CRIME OF WILLFUL KILLING. NDRA killed the 15 detained Lemis inside the VPF office. NDRA took over the VPF secretariat office On June 10, to reinforce their control over Rizoba,. Thereafter, 15 human remains were found and indentified as those detained in the office.

A.1 Lemis are protected person The detained Lemis took no active part in the hostilities. 28 They only sought refuge in said building because of fear of attacks; neither was there resistance on their part. (C.20) Any doubt as to their status should be resolved of their status as civilians.29 In any case, NDRA should have exercised precautionary principle of distinction.30 The mere presence of the weapons did not make them valid military objects (C 19); nor did such fact remove them with their

protected status. A.2 NDRA knew of their protected status The detained civilians in the VPF office were interrogated and segregated by the NDRA. The clothing, activity, sex, or ages are factors considered to establish whether or not they were protected persons. 31

MEMORIAL FOR THE APPLICANT -Pleadings and Authorities-

Knowledge thereof cannot be denied.32 The next day, NDRA declared that they had successfully thwarted the civilians in the office. (C.20,21) B. Killing was perpetrated in an International Armed Conflict between Losovo and Vanilia. B.1 Losovo became an independent State when the killings occurred The elements of a state are: 1) permanent population, 2) defined territory, 3) government, 4) sovereignty33 On May 29, Losovo achieved its independence. It is populated by Nomags, governed by an interim government, free from external control, and capable of foreign relations. The principle of state recognition is applicable. It is the free act by which one or more states acknowledge the existence on a definite territory of a human society politically organized, independent of any existing state, and capable of observing the obligations of international law XXX.34 B. Armed conflict is international An armed conflict is international when there is a resort to armed forces between states,35 and the conflict takes place in their territories.36 Notwithstanding Losovos independence, the killing was committed in an IAC ongoing between Losovo and Vanila (C14;17-19) B.1 Nexus between the conflict and killing

32 33 34 35 36

Stakic, 939 Brownlie

Art. I. Institute de Droit International.

Tadic, 84 Zaric, 105 -7-

MEMORIAL FOR THE APPLICANT -Pleadings and Authorities-

The killings were part of the independence movement, and took place in Rizoba.37 The resort to arms of NDRA was necessary to totally defeat the Vanilian Government and its forces. B.2 NDRA knew the existence of an armed conflict NDRA declared Losovos independence. There could be no reason for them to deny knowledge of the international character of the armed conflict.38