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2Prosecution

THE PROSECUTOR

v.

MONA TAMMY

October 2016
TABLE OF CONTENTS

INDEX OF AUTHORITIES.........................................................................................................5

STATEMENT OF FACTS.............................................................................................................7

SUMMARY OF THE PLEADINGS............................................................................................8

PLEADINGS..................................................................................................................................9

1. A NON-INTERNATIONAL ARMED CONFLICT, KNOWN TO TAMMY AS

COMMANDER-IN-CHIEF, OCCURRED IN FODAVA BETWEEN THE

GOVERNMENT AND OPPOSITION FIGHTERS.............................................................9

1.1. A non-international armed conflict occurred in Fodava...............................................9

1.2. Tammy knew of the non-international armed conflict................................................10

2. TAMMY IS CRIMINALLY RESPONSIBLE AS CO-PERPETRATOR FOR HAVING

INTENTIONALLY COMMITTED THE WAR CRIME OF ATTACKING

PROTECTED OBJECTS PROHIBITED BY ARTICLE 8(e)(iv) OF THE ROME

STATUTE...............................................................................................................................10

2.1. The elements of the war crime are satisfied.................................................................11

2.1.1. Tammy, together with Rambeck, directed the attack on the Cave Temples............11

2.1.2. The Cave Temples of Tyra, at the time of the attack, were protected.....................11

2.1.3. Tammy, together with Rambeck, intended the Cave Temples, which were not

military objectives during that time, to be the object of the attack...........................13

2.2. Tammy is liable as co-perpetrator of the war crime....................................................13

2.2.1. There is a plurality of persons...............................................................................13

2.2.2. There exists a common plan to attack the Cave Temples of Tyra..........................14

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2.2.3. Tammy participated in the common plan involving the attack on the Cave Temples

of Tyra........................................................................................................................14

3. TAMMY IS CRIMINALLY RESPONSIBLE IN ORDERING THE INTENTIONAL

COMMISSION OF THE WAR CRIME OF ATTACKING PROTECTED PERSONS

PROHIBITED BY ARTICLE 8(e)(i) OF THE ROME STATUTE 8(c)(i) OF THE

ROME STATUTE..................................................................................................................14

3.1. The elements of the war crime are satisfied.................................................................15

3.1.1. Tomass directed an attack......................................................................................15

3.1.2. The object of the airstrikes were individual citizens not taking direct part in

hostilities....................................................................................................................15

3.1.3. Tomass intended the civilian population as such or individual civilians not taking

direct part in hostilities to be the object of the attack...............................................16

3.2. Tammy is individually liable for ordering the war crime...........................................16

3.2.1. Tammy had de jure authority over Tomass............................................................16

3.2.2. There is a causal link between Tammy’s order and Tomass’ acts..........................17

3.2.3. Tammy is aware of the substantial likelihood that a crime would be committed as

a consequence of the execution or implementation of her order...............................17

4. TAMMY IS CRIMINALLY RESPONSIBLE ON THE BASIS OF COMMAND

RESPONSIBILITY FOR THE WAR CRIME OF VIOLENCE TO LIFE AND

PERSON, IN PARTICULAR CRUEL TREATMENT AGAINST PROTECTED

PERSONS PROHIBITED BY ARTICLE 8(c)(i) OF THE ROME STATUTE................18

4.1. The elements of the war crime are satisfied.................................................................18

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4.1.1. Tomass’ acts or omissions inflicted severe physical or mental pain or suffering

upon one or more persons.........................................................................................18

4.1.2. The persons affected were protected persons........................................................19

4.1.3. Tomass was aware of the factual circumstances that established the status of the

protected persons.......................................................................................................20

4.2. Tammy is liable on the basis of command responsibility for the war crime.............20

4.2.1. There exists a superior-subordinate relationship between Tammy and Tomass....20

4.2.2. Tammy knew or had reason to know that the criminal act was about to be or had

been committed by Tomass........................................................................................21

4.2.3. Tammy failed to take the necessary and reasonable measures to prevent the

criminal act or punish Tomass...................................................................................22

PRAYER FOR RELIEF..............................................................................................................23

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INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Additional Protocol I to the Geneva Conventions (1949), relating to the 11, 12, 15, 16

Protection of Victims of International Armed Conflicts, 19

8 June 1977

Additional Protocol II to the Geneva Conventions (1949), relating to the 9

Protection of Victims of Non-International Armed Conflicts,

8 June 1977

Convention Concerning the Protection of the World Cultural and Natural 9

Heritage, 16 November 1972

Geneva Conventions, 12 August 1949 19

Hague Convention on the Protection of Cultural Property in the Event of 11

Armed Conflict, 1972

Rome Statute of the International Criminal Court, 1 July 2002, 9, 10, 11, 14

A/CONF.183/9 18

Second Protocol to the 1954 Hague Convention on the Protection of 12

Cultural Property in the Event of Armed Conflict, 1999

INTERNATIONAL DOCUMENT

Elements of Crimes, International Criminal Court, ICC-PIDS-LT-03-002 11, 15, 18

(2011)

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JUDICIAL DECISIONS

ICTR, Appeals Chamber, Muvunyi v. Prosecutor, ICTR-2000-55 A-A 19

ICTR, Trial Chamber, Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, 18

ICTR-99-46-T

ICTY, Appeals Chamber, Prosecutor v. Krnojelac, IT-T97-25-A 13, 14

ICTY, Appeals Chamber, Prosecutor v. Kordic and Cerkez, IT-95-14/2-A 12, 15, 17, 20

ICTY, Trial Chamber, Prosecutor v. Blaskic, IT-95-14 21

ICTY, Trial Chamber, Prosecutor v. Brdjanin, IT-99-36-T 11, 13

ICTY, Trial Chamber, Prosecutor v. Delalic et al., IT-96-21 9, 20, 22

ICTY, Trial Chamber, Prosecutor v. Galic, IT-98-29-T 15, 21

ICTY, Trial Chamber, Prosecutor v. Halilovic, IT-01-48-T 21

ICTY, Trial Chamber, Prosecutor v. Limaj et al., IT-03-66-T 17, 19, 21

ICTY, Trial Chamber, Prosecutor v. Naletilic and Martinovic, IT-98-34 12

ICTY, Trial Chamber, Prosecutor v. Simic, Tadic and Zaric, IT-95-9 13

ICTY, Trial Chamber, Prosecutor v. Strugar, IT-01-42-T 11, 12, 15, 16,

17

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STATEMENT OF FACTS

Fodava is a multi-cultural, highly populated nation and parliamentary democracy. In


2010, Mona Tammy was elected President. A devout follower of Ipso Faith, Tammy pursued
controversial and radical policies aimed at lessening the political and cultural power of other
religions. In November 2010, Ipso Faith was declared as the national religion of the country.
Fighting against the religious persecution, what started as protests led to the formation by the
opposition, led by Starlight Path religion leaders and followers, of an armed group called
“Warriors of Light” (WOL) on July 2011. Since, the armed conflict has spread to more than half
the country. WOL was eventually able to gain control over 12 districts, including Tyra.

Faced with the grueling battle with WOL and local resistance, Tammy instructed her
forces, through General Dan Rambeck to carry out an attack on the Cave Temples of Tyra, a
UNESCO World Heritage Site, after incomplete intelligence reports showed foot traffic of WOL
fighters in the vicinity. After the attack, the Cave Temples were completely destroyed.

In the capital, Osso, the Fodavan forces under the local command of Colonel Peter
Tomass launched a series of bombings over a period of about a month that targeted five suburban
buildings, situated in densely populated areas, and suspected to be WOL bases. The most recent
airstrike was ordered against the Rose Garden building, which was completely destroyed
severely damaging several nearby buildings including a power plant. The airstrikes resulted in
about 150 deaths and more than 300 injuries, and causing a massive power crisis in the local
community. After the bombing, the Fodavan military forces conducted a forced transfer of
medical personnel from the Starlight Hospital. 70 out of 100 doctors and nurses were brought to
Fodava military bases, and those left behind were mostly young and inexperienced. Because of
the lack of power and medical staff in the Starlight Hospital, the local population faced a medical
crisis. Many civilians and WOL fighters, including those wounded from the airstrikes died of war
injuries and lack of medical attention.

After the end of hostilities, and Tammy’s eventual ouster, Fodava referred the situation to
the International Criminal Court. Hence, the present case.

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SUMMARY OF THE PLEADINGS

Former President Mona Tammy, during the non-international armed conflict occurring in
Fodava, and in full knowledge of the nature of the armed conflict, committed acts constituting
war crimes prohibited under the Rome Statute of the International Criminal Court (Rome
Statute) in the military’s attack against protected objects and persons, as well as its acts and
omissions inflicting severe pain and suffering on persons between August to October 2012.

First, as co-perpetrator, Tammy is responsible for the war crime of intentionally attacking
a protected object by attacking and destroying the Cave Temples of Tyra, a religious and historic
landmark, on 13 September 2012.

Second, Tammy is responsible for ordering the commission of the war crime of
intentionally attacking civilians or individuals not taking direct part in the hostilities in the
bombing of six residential buildings in Osso between August to September 2012, including the
airstrike on Rose Garden building, on 23 September 2012 leading to the deaths and injuries of
many civilians.

Lastly, Tammy is liable, on the basis of command responsibility, for cruel treatment
against persons taking no active part in the hostilities, including members of armed forces placed
hors de combat by wounds, through the act of her subordinates in depriving necessary medical
attention to persons through the forced removal of medical personnel of the Starlight Hospital on
24 September 2012.

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PLEADINGS

1. A NON-INTERNATIONAL ARMED CONFLICT, KNOWN TO TAMMY AS THE


COMMANDER-IN-CHIEF, OCCURRED IN FODAVA BETWEEN THE
GOVERNMENT AND OPPOSITION FIGHTERS.

Preliminarily, the admissibility of this case, under Article 17 of the Rome Statute, 1 is
founded on the gravity of the crimes committed. The charges involve the destruction of the Cave
Temples of Tyra, a UNESCO World Heritage Site 2. Under the World Heritage Convention, the
destruction of these temples is a “harmful impoverishment of the heritage of all of the nations of
the world” as they are considered “part of the world heritage of mankind.” 3 Similarly, attacks on
civilians and non-combatants, as this case involves, is considered a serious violation of
international humanitarian law.4 These point to the sufficient gravity attendant of the case
required for its admissibility.

1.1. A non-international armed conflict occurred in Fodava.

Under the Rome Statute, a non-international armed conflict refers to armed conflicts
between the State government and internal organized armed groups.5 The two aspects that have
to be satisfied to determine its existence are the organization of the parties and the intensity of
the conflict.6

The fact that the Fodavan military is organized is safely inferred. The organization of
WOL can also be concluded based on the facts. WOL uses military equipment such as high grade
rifles, grenades and bombs. It is also able to launch successful attacks that led them to control
1
Rome Statute of the International Criminal Court, 1 July 2002, A/CONF.183/9 [Rome Statute].
2
Compromis, ¶10.
3
Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972.
4
Article 13(2), Additional Protocol II to the Geneva Conventions [AP II].
5
Article 8(2)(f), Rome Statute.
6
ICTY, Trial Chamber, Prosecutor v. Delalic et al., Case No. IT-96-21, para. 184.
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almost half of the entire country.7 On the other hand, the armed conflict was also intense. It lasted
for about 18 months, from July 2011 to December 2012. The violence from the conflict has also
spread to more than half the country. The seriousness of the armed conflict is further supported
by the many casualties and injuries suffered.8

1.2. Tammy knew of the non-international armed conflict.

As President of Fodova, the facts show that Tammy knew of the existence of the non-
international armed conflict where she led the Fodavan military in the execution of the crimes
charged. This fact is supported by the fact that she was informed of relevant intelligence
regarding the armed conflict, she discussed the conflict and expressed publicly her knowledge
and perspectives.9

2. TAMMY IS CRIMINALLY RESPONSIBLE AS CO-PERPETRATOR FOR HAVING


INTENTIONALLY COMMITTED THE WAR CRIME OF ATTACKING
PROTECTED OBJECTS PROHIBITED BY ARTICLE 8(e)(iv) OF THE ROME
STATUTE.

Tammy is criminally responsible on the basis of Article 25(3)(a) 10 for the attack on the
Cave Temples of Tyra on 13 September 2012, which is a war crime prohibited under Article 8(e)
(iv) of the Rome Statute11.

2.1. The elements of the war crime are satisfied.

7
Compromis, ¶13, 16, 11.
8
Compromis, ¶10, 25, 11, 20.
9
Compromis, ¶14, 17, 13, 12, 19.
10
Supra note 1.
11
Id.
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The war crime of intentionally directing an attack against buildings dedicated to religion
and historic monuments requires five elements 12 to concur, all of which are satisfied in the case.
The two elements relating to the context of a non-international armed conflict and the accused’s
knowledge of such fact have already been shown13.

2.1.1. Tammy, together with Rambeck, directed the attack on the Cave Temples.

An attack is defined as acts of violence against the adversary, whether in offence or in


defence.14 The facts show that Tammy was consulted and she subsequently approved the attack
on the Cave Temples of Tyra. 15 General Dan Rambeck then executed the plan and physically
launched the attack on the 13th of September, 2012.

2.1.2. The Cave Temples of Tyra, at the time of attack, was protected.

Cultural property, including historical landmarks, and religious sites 16 enjoy protection
from attack under international humanitarian law both under treaty 17 and custom.18 Their
destruction is specifically considered a crime under the Rome Statute, qualified by the phrase
“provided they are not military objectives.”19 Critically, being near military objectives doesn’t
remove the protection from cultural property.20 Further, in case of a doubtful determination as to

12
Elements of Crimes, International Criminal Court, ICC-PIDS-LT-03-002 (2011).
13
See supra discussion in 1.1 to 1.2.
14
Additional Protocol I to the Geneva Conventions of 1949, 1977 [AP I].
15
Compromis, ¶14.
16
ICTY, Trial Chamber, Prosecutor v. Brdjanin, IT-99-36-T, para. 595.
Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict,
17

1954; AP I.
18
ICTY, Trial Chamber, Prosecutor v. Strugar, IT-01-42-T, para. 312.
19
Article 8(2)(e)(iv), Rome Statute.
20
Supra 18, para. 310.
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its status of protection, the presumption must be in favor of the continued immunity of cultural
property from attack.21

The Cave Temples of Tyra are a UNESCO World Heritage Site. It is also an important
religious place, and one of Fodava’s oldest landmarks.22 It is protected from attack.23

Moreover, there was no sufficient evidence to conclude that the Cave Temples were used
for a military purpose or that attacking it would result to a definite military advantage. The
information gathered only pointed to the foot traffic of armed persons, and the death of the spies
sent by the military meant that the government did not have enough information to conclude
military purpose. Rambeck confirmed his lack of knowledge of the factual circumstances. 24 The
allegation of military purpose is further negated by the fact that the Cave Temples were still
functioning normally for religious activities.25 Such collection of facts, at best, only establishes a
doubtful status of the Cave Temples, and such doubt cannot be the basis of the cultural property’s
loss of protection. Even if the cultural property were in the vicinity of military objectives, neither
does such fact justify its destruction.26

2.1.3. Tammy, together with Rambeck, intended the Cave Temples, which were not
military objectives during that time, to be the object of the attack.

21
Article 52(3) of AP I; ICTY, Appeals Chamber, Prosecutor v. Kordic and Cerkez, IT-95-14/2-A,
para. 53.
22
Compromis, ¶4.
Second Protocol to the Convention for the Protection of Cultural Property in the Event of
23

Armed Conflict, 1999.


24
Compromis, ¶13, 14.
25
Compromis, ¶13.
26
ICTY, Trial Chamber, Prosecutor v. Naletilic and Martinovic, IT-98-34, para. 604.
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In requiring dolus directus, it is necessary that the destruction or willful damage of a
religious property “must have been either perpetrated intentionally, with the knowledge and will
of the proscribed result or in reckless disregard of the substantial likelihood of the destruction or
damage.”27

The facts show that Tammy and Rambeck clearly targeted the Cave Temples. Rambeck
wanted to “uproot the WOL fighters” implying an attack on the place and not on the combatants
themselves. Similarly, Tammy expressed her view that the Tyrians deserve punishment, and
stated her desire to lay waste to the city.28

2.2. Tammy is liable as co-perpetrator of the war crime.

Tammy is responsible for the crime as a co-perpetrator, a mode of liability under the
Rome Statute requiring three elements,29 all of which are satisfied.

2.2.1. There is a plurality of persons.

The element of plurality does not refer to an organized military, political or


administrative structure.30 The facts show a plurality of persons in the planning as the emergency
meeting convened by Tammy on 12 September was attended by Rambeck, a religious adviser,
and a legal adviser.31

2.2.2. There exists a common plan to attack the Cave Temples of Tyra.

27
Supra note 16, para. 599.
28
Compromis, ¶14, 12.
29
ICTY, Appeals Chamber, Prosecutor v. Krnojelac, IT-T97-25-A, para. 31.
30
ICTY, Trial Chamber, Prosecutor v. Simic, Tadic and Zaric, IT-95-9, para. 156.
31
Compromis, ¶14.
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The facts show that it was during the emergency meeting when the plan was discussed
and eventually agreed upon and approved. The common plan was to uproot the starlight warriors
out of the alleged stronghold in the Cave Temples.32

2.2.3. Tammy participated in the common plan involving the attack on the Cave Temples
of Tyra.

In Krnojelac, participation need not involve commission of a specific crime but may take
the form of assistance in, or contribution to, the execution of the common plan or purpose. 33
Tammy has shown her support and official endorsement of the attack before the events. Her
public statements after the attack34 have not in any way condemned the destruction of the Cave
Temples and instead encourages further military action. This points to her complete participation
in the plan.

3. TAMMY IS CRIMINALLY RESPONSIBLE IN ORDERING THE INTENTIONAL


COMMISSION OF THE WAR CRIME OF ATTACKING PROTECTED PERSONS
PROHIBITED BY ARTICLE 8(e)(i) OF THE ROME STATUTE.

Tammy is criminally responsible on the basis of Article 25(3)(b)35 for the series of
bombings on the five Osso suburban buildings between August and September 2012, including
the airstrike on the Rose Garden building on 23 September 2012, which is a war crime prohibited
under Article 8(e)(i) of the Rome Statute.36

3.1. The elements of the war crime are satisfied.

32
Id.
33
Supra 29, para. 31.
34
Compromis, ¶14, 17.
35
Supra note 1.
36
Id.
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The war crime of intentionally directing an attack against the civilian population or
against individual non-combatants requires five elements 37 to concur, all of which are satisfied in
the case. The two elements relating to the context of a non-international armed conflict and the
accused’s knowledge of such fact have already been shown38.

3.1.1. Tomass directed an attack.

Attacks, as discussed, are either offensive or defensive acts of violence against the
enemies.39 The bombings of the five Osso buildings and the airstrike on the Rose Garden
building using Fodavan military force against the alleged WOL bases for an offensive purpose is
within the definition of an attack.

3.1.2. The object of the airstrikes were individual civilians not taking direct part in
hostilities.

Fundamentally based on the principle of distinction, attacking civilians is a serious


breach of international humanitarian law,40 and proscribed by customary international law.41 This
means that as non-combatants, civilians are not to be attacked.42 Only when they engage in direct
hostilities and become legitimate military targets does their immunity cease.43

The facts show that the attacks were made against buildings in the suburban areas of the
capital, Osso. It can be inferred that these attacks were directed against residential kind of
buildings. The allegation of the Fodavan military is that these buildings were WOL bases. The
37
Supra note 12.
38
See supra note 14.
39
Supra note 14; see ICTY, Appeals Chamber, Prosecutor v. Kordic and Cerkez, IT-95-14/2-A,
para. 47.
40
see ICTY, Appeals Chamber, Prosecutor v. Kordic and Cerkez, IT-95-14/2-A, para. 54.
41
Supra note 18, para. 223.
42
ICTY, Appeals Chamber, Prosecutor v. Kordic and Cerkez, IT-95-14/2-A, para. 50.
43
ICTY, Trial Chamber, Prosecutor v. Galic, IT-98-29-T, para. 48.
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facts, however, do not show that the whole buildings were alleged to be used for full military
purposes. The use of warning bombs44 imply that these buildings are still in whole or in part,
serving residential and civilian purposes.

3.1.3. Tomass intended the civilian population as such or individual civilians not taking
direct part in hostilities to be the object of the attack.

An essential element is the intent of the accused to make the civilian population or
civilians the object of attack.45 Tomass, directed the attacks on the six Osso residential
buildings.46 It can be reasonably inferred that Tomass knew of the nature of these suburbs as
these are areas within the capital, Osso, itself, hence easily observable. The attacks were ordered
in full knowledge of such nature of the objects of attack.

3.2. Tammy is individually liable for ordering the war crime.

Tammy is responsible for the crime for inducing its commission, a mode of liability
under the Rome Statute requiring three elements,47 all of which are satisfied.

3.2.1. Tammy had de jure authority over Tomass.

In Limaj, what is necessary is not the presence of a formal superior-subordinate


relationship but the fact that the accused possessed de jure or de facto authority to order the
commission of the crime.48 Tammy had clearly de jure authority over Tomass, as it can be
reasonably implied that as the President enjoys command over generals, 49 she enjoys the same
over colonels of the military.
44
Compromis, ¶16, 18.
45
Art. 51(2) and Art. 85(3)(a) of AP I.
46
Compromis, ¶18.
47
Supra note 18, para. 332.
48
ICTY, Trial Chamber, Prosecutor v. Limaj et al., IT-03-66-T, para. 515.
49
Compromis, ¶13, 14.
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3.2.2. There is a causal link between Tammy’s order and Tomass’ acts.

The causal link refers to the contribution that the order had in the commission of the
crime.50 Tammy has publicly confirmed her standing orders mandating the attack of “any person,
group or building that is found to support the [WOL] in any way.” This logically empowers
Tomass to proceed with his acts. Tammy, in turn, confirms her approval of Tomass’ actions in her
pubic statement after the airstrikes.51

3.2.3. Tammy is aware of the substantial likelihood that a crime would be committed as
a consequence of the execution or implementation of her order.

In Kordic, the standard of mens rea is held to be lower than direct intent under this
element.52 By her public statements before and the attack, 53 it can be seen that Tammy had
intended her order to have such a result as the attacks. At the very least, the facts imply that
Tammy knew of the consequence and approved of them.

4. TAMMY IS CRIMINALLY RESPONSIBLE ON THE BASIS OF COMMAND


RESPONSBILITY FOR THE WAR CRIME OF VIOLENCE TO LIFE AND PERSON,
IN PARTICULAR CRUEL TREATMENT AGAINST PROTECTED PERSONS
PROHIBITED BY ARTICLE 8(c)(i) OF THE ROME STATUTE.

50
Supra note 18.
51
Compromis, ¶17, 19.
52
Supra note 42, para. 30.
53
Compromis, ¶17, 19.
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Tammy is criminally responsible on the basis of Article 28(a) 54 for the forced removal of
the majority of the medical personnel of Starlight Hospital from 24 September to 25 October
2012, which is a war crime prohibited under Article 8(c)(i) of the Rome Statute55.

4.1. The elements of the war crime are satisfied.

The war crime of cruel treatment, considered as violence to life and person, requires five
elements56 to concur, all of which are satisfied in the case. The two elements relating to the
context of a non-international armed conflict and the accused’s knowledge of such fact have
already been shown57.

4.1.1. Tomass’ acts or omissions inflicted severe physical or mental pain or suffering
upon one or more persons.

Cruel treatment has been defined as “an intentional act or omission causing serious
mental or physical suffering or injury, constituting a serious attack on human dignity.” 58 In
Muvunyi, soldiers preventing wounded survivors of an attack from receiving medical attention at
the closest hospital was held as cruel treatment.59 Similarly, when no medical care was provided,
although readily available, such was held as an attack on human dignity.60

The case involves a deliberate act on the part of Tomass to deprive the communities,
predominantly Starlight Path followers, living near the Starlight Hospital from needed and
critical emergency medical care. The forced removal of the hospital’s most senior and
54
Supra note 1.
55
Id.
56
Supra note 12.
57
See supra note 13.
58
ICTR, Trial Chamber, Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, ICTR-99-46-T,
para. 765.
59
ICTR, Appeals Chamber, Muvunyi v. Prosecutor, ICTR-2000-55 A-A, paras. 149, 150, 153.
60
Supra note 48, paras. 288-289.
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experienced medical personnel can only imply that the leaving behind of 30 personnel was done
with an intent to further the local medical crisis. Even if without the intent, Tomass’ omissions of
not providing medical care for the local communities when it was already available is culpable.
This led to the pain and suffering among many of the locals as confirmed by a respected
international organization.61

4.1.2. The persons affected were protected persons.

Protected persons, under this crime, refer to either hors de combat, or civilians, medical
personnel, or religious personnel taking no active part in the hostilities.62

The facts show that the ones affected most were the patients who consisted of civilians,
and hors de combat. Most of the injured were admitted to the Starlight Hospital, including WOL
fighters and civilians, and many civilians and WOL fighters died of war injuries and severe lack
of medical attention.63

4.1.3. Tomass was aware of the factual circumstances that established the status of the
protected persons.

Facts show that Tomass was aware of the crisis gripping the Starlight Hospital and the
surrounding communities involving protected persons. As early as 22 September, the hospital
had already lost electricity, and the influx of injured survivors from the airstrikes continued to
pour in the Starlight hospital, as other hospital and medical facilities were difficult to reach. It
was just two days after, the hospital still faced with critical challenges that Tomass decided to

61
Compromis, ¶16, 21, 20, 23, 2.
62
See Geneva Conventions; AP I.
63
Compromis, ¶20, 23.
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forcibly transfer the medical personnel.64 At all points of his actions, Tomass was aware of the
fact that his acts will inflict severe suffering and pain to the already burdened victims.

4.2. Tammy is liable on the basis of command responsibility for the war crime.

Tammy is responsible for the crime on the basis of command responsibility 65, as a mode
of liability under the Rome Statute, which requires three elements,66 all of which are satisfied.

4.2.1. There exists a superior-subordinate relationship between Tammy and Tomass.

The superior-subordinate relationship exists when a person is in “’formal status’ or in


‘effective authority and control’ as a military commander to prevent and punish the crimes of
subordinates.”67

The fact that Tammy occupies the highest political and military position being the
President and essentially the Commander-in-Chief of Fodava, is indicative of her effective
control and authority. Further, the actual task she performed such as planning military operations,
making political and military decisions and final orders as well as giving political statements 68
are all indicative of her effective control and authority over her subordinates. 69

4.2.2. Tammy knew or had reason to know that the criminal act was about to be or had
been committed by Tomass.

64
Compromis, ¶18, 19, 23, 22.
65
Supra note 6, para. 195.
66
Supra note 42, para. 839.
67
ICTY, Trial Chamber, Prosecutor v. Halilovic, IT-01-48-T, par. 81.
68
Compromis, ¶6, 14, 12, 17.
69
See supra 67, para. 58.
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It must also be established that the superior knew or had reason to know that the
subordinate was about to commit or had committed a criminal act, 70 which can proved by
circumstantial evidence.71 Accordingly, in Blaskic, it was held that “an individual’s command
position per se is a significant indicium that he knew about the crimes committed by his
subordinates.”72

It can be inferred from the circumstances of the case that Tammy had reason to know that
Tomass was about to commit the crime. First, she expressly authorized and order her forces to
attack groups found to support WOL. On the other hand, most of the injured were admitted to the
Starlight Hospital, including WOL fighters. It can be logically presumed that the act of accepting
and treating of WOL fighters in the Starlight Hospital was regarded as an act of giving support to
WOL which led Tomass to commit the crime, consistent with the order and authority given to
him by Tammy. Further, the interview of Colonel Thomas given to the press after the incident 73
meant Tammy should know that her subordinate committed a crime.

4.2.3. Tammy failed to take the necessary and reasonable measures to prevent the
criminal act or punish Tomass.

In Delalic, the measures required for the superior to implement are limited to what is
within her material possibility.74 The facts show the there was no action on Tammy’s end. She did
not make or undertake any feasible, appropriate and necessary measure within her material
possibility to prevent the commission of the crime, or to subject the matter for investigation, or
for prosecution after its occurrence. There is complete inaction on Tammy’s part to prevent or
punish the commission of the crime.
70
Supra note 48, para. 523.
71
Supra note 43, para. 174.
72
ICTY, Trial Chamber, Prosecutor v. Blaskic, IT-95-14, para. 308.
73
Compromis, ¶17, 20, 24.
74
See supra note 6, para. 935.
Page 21 of 23
PRAYER FOR RELIEF

The Prosecutor respectfully requests this Honorable Court to adjudge and declare that
there is sufficient evidence to establish substantial grounds that President Mona Tammy
committed the war crimes under Article 25(3)(a), Article 8(e)(i) and Article 8(c)(i) of the Rome
Statute.

RESPECTFULLY SUBMITTED

Page 22 of 23
The Prosecutor

Page 23 of 23

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