The Moot Problem

6th Red Cross International Humanitarian Law Moot (2008)

The Moot Problem

1. Background Information

1.1; RELEVANT PARTIES, PLACES AND THINGS:

Lovenia – a large resource rich sovereign state with a history dating back to antiquity. The main resources are iron ore, copper, lead, zinc and uranium. Its main agricultural produce is wool and wheat. In 1820 Lovenia was conquered by a colonial power but was granted independence after World War Two in 1946. At the time of independence the country was partitioned into two states, Lovenia and Delarus, because of cultural and religious differences. Since independence Lovenia has been a fragile democracy.

Taro – the capital city of Lovenia which lies some 300 kilometers inland and north from Horta.

Delarus – a small trading and military State located beside the Zobra Channel. Delarus has a large farming population especially on the eastern side of the railway line.

Horta – the capital and port city of Delarus. Horta is recognized as a key international trading transport hub because of its strategic location. Many international trading corporations have offices and warehouses in and around Horta. Horta overlooks the Zorba Channel that links two oceans. All of Lovenia’s exports travel through Horta.

Highlands – a rugged mountain range that runs down one side of Lovenia and Delarus to the Zorba Channel Sea some 50 kilometres west of Horta. Ebay Gee grew up traveling up and down the highlands with his father who was a traveling salesman.

Macy – a small border town between Taro and Horta on the main rail line to Horta. All of Horta lies on the Delarus side of the border except for the main railway station. The main railway station with its clock tower lies some 500 metres on the Lovenia side of the border close to the river and main railway bridge. Macy is an important transport hub.

President Black – President of Delarus.

Ebay Gee – Foreign Minister for Lovenia and later a guerilla commander.

Bill Headline – famous international war correspondent.

Chu Lee – representative of the International Committee of the Red Cross (ICRC).

Mas and Sid – Delarus Red Cross workers.

Red Cross and Red Crescent - these are symbols recognized and protected by international humanitarian law. The red cross and red crescent are placed against white backgrounds and have come to represent the impartial humanitarian assistance provided to those who suffer. The provisions of the Geneva Conventions and the Additional Protocols establish that the red cross and red crescent are symbols protected by international law.

Red Crystal – The International Red Cross and Red Crescent Movement, as well as States, now have three protective emblems recognised under international law. A diplomatic conference in December 2005 adopted the Third Additional Protocol to the Geneva Conventions, creating the red crystal emblem to stand alongside the red cross and red crescent. The Protocol entered into force on 14 January 2007.

1.2; Teams should concentrate on the facts supplied. All characters, countries, cities, companies, armies, tribes and religions are fictitious and any resemblance to real persons, countries, cities, companies, armies, tribes and religions, living or dead, is purely coincidental. Jurisdiction may be an issue. State responsibility may be an issue. Teams may be assisted by looking at matters before the International Criminal Tribunals of Yugoslavia and Rwanda, the International Criminal Court and its predecessors as well as decisions by national courts. If teams are going to rely on decisions by national courts these decisions should be leading decisions and teams should expect to be asked for copies of the head note and the portion of the transcript or judgment referred to in argument. It would be advisable to have copies available for all judges in the moot in which the team is competing.

1.3; Teams acting for the Prosecution will be known as the Applicant. Teams acting for the Accused, Ebay Gee will be known as the Respondent.

1.4; The following map shows the location of the States, towns and key features:

Map not drawn to scale.

1.5; Lovenia was historically a poor nation but is slowly becoming a richer nation as world demand increases for its mineral resources. Delarus was historically part of Lovenia but had been separated as part of the de-colonisation process that followed World War Two in 1945. Delarus became a rich trading nation due largely to Horta’s location on the Zorba Channel, a major international shipping route. The peoples were of similar racial origins but had developed different religious and cultural practices over time. It was these different religious and cultural practices that resulted in the Colonial Power dividing the country into the two nations of Lovenia and Delarus. Taro was the ancient capital before division. But most of the wealth was found in Horta because of its climate and trading location. While the armed forces were divided at time of separation the greater wealth generated thru Horta’s location has meant that Delarus now possesses better equipped and trained armed forces.

1.6; Lovenia is landlocked and has no access to the Zorba Channel meaning mineral exports have to pass through Delarus to the port of Horta. The Zorba Channel is a major international shipping lane providing a short cut between two major oceans. Over 60% of all world trade passes thru this waterway. As well as being a major export hub in itself the port of Horta had since antiquity catered for the needs of ships using the channel resulting in great wealth for many of the residents of Delarus.

1.7; In July 2003 the citizens of Lovenia elected a new government led by President Black. The campaign was noticeable for the largely unsubstantiated allegations of violence and intimidation by supporters of President Black against any opposition. The organizer was Ebay Gee, a long time friend of President Black. President Black came to power promising, amongst other things, the eventual return of Delarus to the motherland of Lovenia. President Black rewarded Ebay Gee by making him foreign minister and giving Ebay Gee land, antiques and money seized from persons who had opposed his election. These persons and others who had opposed President Black’s campaign vanished. The official government line was that ‘they had gone overseas’.

1.8; At the same time a small number of the citizens of Delarus openly supported the return of Delarus to Lovenia. They called themselves the ‘Free Delarus Party’ or FDP. The Delarus authorities had ignored these citizens until President Black came to power at which time the organizers of the FDP were convicted of sedition and locked up in Horta’s prison. This had the effect of driving the FDP underground. Lovenia was aware of the aims of the FDP because of reports in the local and international media and the use of the internet by members of the FDP.

1.9; On 5 to 8 December 2005 the Foreign Ministers of Lovenia and Delarus attended the diplomatic conference on the adoption of a Third Protocol Additional to the Geneva Convention convened by Switzerland and held in Geneva. Delarus subsequently ratified the Third Protocol on 1 August 2006 and because of local historically negative religious and cultural perceptions legislated to change their national society’s emblem permanently to the red crystal. This legislation was passed into law on 14 February 2007. Lovenia has not ratified the Third Protocol.

1.10; On 1 and 2 April 2007 a series of car bombs caused extensive damage and loss of life in Horta. One of these bombs destroyed a building beside the main train line from Delarus to the port in Horta. This blocked the train line for some three days resulting in protests and calls by Lovenia for compensation from the Delarus authorities for damages resulting from a failure to meet export contracts. Later on 5 April 2007 nightclubs used by tourists were bombed killing and injuring many tourists resulting in a significant fall in the number of foreign visitors to Delarus. The FDP claimed responsibility for these actions saying the government of Delarus was corrupt and the country should return to the motherland of Lovenia. The Delarus authorities suspected Lovenia involvement in the bombings and assassinations. The Delarus authorities rounded up persons suspected of supporting the FDP. Under torture several persons said they had been trained in Lovenia and that while there they had been supplied with explosives and weapons.

1.11; On 15 April 2007, in a note delivered by the Delarus ambassador to Lovenia, Delarus stated:

i. The training of Delarus citizens in the use of explosives along with the supply of explosives and weapons amounted to interference in the sovereign rights of Delarus.

ii. The explosions and assassinations amounted to acts of terrorism.

iii. Any future acts of terrorism would result in Delarus closing its border with Lovenia.

1.12; On 16 April 2007 Lovenia replied by note delivered by its ambassadors saying:

i. The allegations contained in the Delarus note of 15 April 2007 are false.

ii. Delarus should not blame others for its internal troubles.

iii. Delarus should not blame Lovenia if the citizens of Delarus want Delarus to return to the motherland.

iv. Delarus should not close its borders with Lovenia because this would have a direct and damaging impact on the economy of Lovenia.

v. If the border was closed Lovenia reserved the right to take what ever action it deemed necessary in the circumstances to protect its economy.

1.13; Just before midday on 17 April 2007 a bomb exploded in the main port area killing some 50 workers and passing tourists. The resulting fire severely damaged nearby factories. The FDP claimed responsibility saying their actions were in response to the torture of its members and the continued suppression of democracy by the Delarus government. The port workers went on strike. Foreign ships cancelled berthing slots until order had been restored. There was an exodus of tourists and business visitors. The Delarus authorities declared a state of emergency.

1.14; The state of emergency included closing the border between Delarus and Lovenia. The citizens of Lovenia demanded their government act to allow exports to continue and act to fulfill its election promise. Many citizens marched on President Black’s residence and on government offices in Taro demanding action against Delarus. At 4am on 20 April 2007 the Lovenia armed forces launched a surprise attack on Delarus. Within 12 hours Lovenia controlled Macy and much of the countryside around Macy. The Lovenia air force bombed government buildings in Horta. Lovenia announced that its armed forces were triumphant and that Delarus would soon be part of Lovenia. However, the Delarus armed forces launched a counterattack routing the Lovenian armed forces. Within days Taro had been occupied by Delarus soldiers. President Black fled the country. Ebay Gee went into hiding in the Highlands with several hundred Lovenian army soldiers including many mortars and artillery pieces. Ebay Gee eventually joined up with the FDP and set up a guerrilla force to force Delarus out of Lovenia.

1.15; Delarus set up a military government in Lovenia announcing in local and international media:

1. Delarus had no intention of remaining in Lovenia any longer then was necessary to re-establish an effective and democratic government.

2. Delarus would withdraw from Lovenia when the guerillas had surrendered or been captured at which point Delarus would allow an interim government to be set up and negotiate a treaty.

3. After a treaty had been entered into force Delarus would withdraw its armed forces.

1.16; The international community condemned the fighting, and offered to try and organise a peace keeping force. The International Committee of the Red Cross offered to assist the Delarus Red Cross by co-ordinating specialist international relief activities because of the increasing numbers of civilians being injured and maimed by cluster bombs left by the retreating Lovenian army.

1.17; The retreating Lovenian army had fired a type of cluster bomb known as an artillery delivered area-denial submunition (often referred to in military circles by the acronym and abbreviation ADAM FASCAM) in an unsuccessful attempt to stop the advancing Delarus army. This type of cluster bomb can be fired from artillery and mortars. The cluster bomb explodes over an area releasing bomblets which hit the ground releasing trip wires that kick out for up to about 5 metres from the mine. These bomblets do not blow up until someone or something puts pressure on the bomb or disturbs the trip wires, for example, a vehicle runs over it or a person steps on a wire or bomblet or a child picks one up out of interest. The bomblets used by the Lovenian army were set to a long destruct (time before the bomblets self-destruct), being 48 hours or more. The problem was that after the fighting passed civilians moved across some of the areas on which cluster bombs had been distributed resulting in serious injuries and death. Furthermore, not all the bomblets self-destructed and some would explode days or weeks later if disturbed.

1.18; Meanwhile, the guerillas, calling themselves the FDP commenced a series of attacks against the Delarus armed forces and key infrastructure in Delarus. The FDP stated:

1. The FDP was the true representative of the people of Lovenia and Delarus.

2. The Delarus armed forces should leave Lovenia immediately.

3. Delarus would eventually become part of the great nation of Lovenia.

1.19; The FDP established itself in the Highlands from where it launched guerrilla raids on the Delarus army and government institutions and infrastructure. Large areas of farmland abutting the Highlands were affected with many towns and villages being attacked. The FDP realized the disruption caused by artillery delivered cluster bombs could be used to benefit their military actions to force Delarus out of Lovenia. In one of their raids into Lovenia the FDP raided an arms depot that contained a large stock of cluster bombs that could be fired from mortars and artillery. The FDP took these cluster bombs and started to fire them into orchards, forests, farmlands, small villages and small townships south of the Delarus border with Lovenia. Because of their small size and grey colour the bomblets were difficult to see on the ground. People soon learnt not to move for at least 72 hours after the FDP had fired cluster bombs in their location or there had been fighting nearby. They also learnt that not all bomblets had self-destructed by 72 hours. There were many deaths and injuries. Large areas of farmland south of the border abutting the Highlands were affected. People started to move west towards Macy and Horta.

1.20; These towns and villages were attacked at times by both the FDP and the Delarus armed forces. Both sides accused farmers, villagers and town residents of supporting the other side. The Delarus army suspected farmers, villagers and town residents on the Delarus side of the border because some of the FDP had been seized in these areas in the Delarus government response to the bombings in April 2007. Suspected sympathisers were shot without warning or tortured and sometimes women were raped. People accused the Delarus government not only of failing to protect them from the FDP, but of failing to control its own armed forces. At the same time drought was starting to affect farming practices. By October 2007 Macy was overcrowded with refugees and the port of Horta was not working properly because of the influx of refugees, the lack of mineral exports and the occasional bombing. This affected international trade in the region resulting in calls for international intervention to resolve the fighting. The local Delarus Red Cross was also calling for international aid because of the growing humanitarian problem made worse by the continued fighting, drought and an increasing number of persons injured and maimed by cluster bombs left over from the conflict.

1.21; Before starting the FDP campaign involving the use of cluster bombs the FDP used the internet to post warnings telling Delarus what was about to happen until they withdrew from Lovenia. These notices warned civilians that they should leave the area east of the railway line and south of the border with Lovenia.

1.22; There were increasing reports in Delarus media and in international media of alleged atrocities being committed by both sides in the conflict. For example, on 12 November 2007 there was a reported incident that made the international media. The report said that a Delarus army patrol had shot all the young men in a lowland farming village because the men were suspected of supporting the FDP. The villagers claimed the guerillas had taken two young girls, beaten up those who had tried to stop them and killed the village leader using machetes. Notwithstanding the pleas of the villages the Delarus army patrol shot all ten men in the village.

1.23; Later, on 15 November 2007 another international report spoke of a Delarus army patrol raping young girls as they passed through a small village near the Highlands. The same report alleged the Delarus patrol had forced locals to walk ahead of the patrol in case there were any unexploded cluster bombs. One local had his lower leg blown off, another lost an eye and one was killed. There were also reports in the local and international media of alleged killings and rapes carried out by the FDP.

1.24; The local media also carried reports of both sides using machetes to inflict death and serious injury upon opposing fighters who had surrendered and upon civilians. Both the international and local media reported on the exodus of people from the countryside close to the Highlands because of the fear of being caught between the Delarus army and the FDP guerillas. Added to this fear was a fear of injury or death because of the cluster bombs. Increasing numbers of people fled into Horta and Macy. The Delarus authorities were increasingly forced to provide services like food and accommodation to civilians displaced by the fighting.

1.25; In early November 2007 the United Nations offered to negotiate a truce and to support a peacekeeping force to protect the peoples affected by the fighting while a political settlement was reached. The parties ignored this offer.

1.26; At about the same time the Delarus Red Cross, asked the ICRC for help. In particular:

· Help with obtaining specialist doctors and medical supplies for those injured by cluster bombs, especially those who had lost limbs, and

· The supply of flags and signs displaying the red crystal emblem because the armed conflict had damaged the local factory commissioned to supply the new emblems.

2. The Case

2.1; Ebay Gee set up the headquarters of FDP in a group of caves on a ridge above a secluded valley in the highlands. FDP had extended its range of activities from the highlands in the east to the main railway line from Taro to Horta. One of the tactics used by the FDP was to move thru an area at night firing cluster bombs from mortars and artillery pieces and attacking anybody who tried to stop them. Ebay Gee told his guerrillas:

“We fire cluster bombs to kill and maim Delarus soldiers. We also use cluster bombs to force supporters of the Delarus government into Macy and Horta. Anybody south of the border is a supporter of the Delarus army. Out tactics will make it harder for them to attack us because the Delarus army will have to be careful. It will make it easier for us to attack them because we know where we have fired the cluster bombs. We must show no mercy to anybody who supports Delarus or its forces. We must win. If forcing people off the land and into Macy and Horta and further west helps us force the Delarus army out of Lovenia than that is what we must do.”

2.2; Because of the increasing number of men, women and children injured and maimed by cluster bombs the International Committee of the Red Cross (ICRC) had supported the Delarus Red Cross to set up an refugee camp, aid post and rehabilitation centre just outside the town of Macy in central Delarus. By the end of the first week in November 2007 over 200 people had been injured by cluster bombs and several thousand people had left their farms and villages because of fear of being injured or killed by cluster bombs. The Delarus government was finding the flood of refugees was affecting their economy, their fight against the guerilla’s and the supply of food and materials to their troops who were occupying Lovenia.

2.3; The Delarus Red Cross provided food, clothing, temporary accommodation and limited transport for cluster bomb victims being treated by international and local medical staff. There were two local Red Cross workers, Mas and Sid. They were very honoured because on the evening of 20 November 2007 Chu Lee, a representative of the International Committee of the Red Cross (ICRC) was visiting to hand over new flags and signs displaying the Red Crystal and they though they would be the first refugee camp, aid post and rehabilitation centre to display the Red Crystal emblem. Chu Lee was also delivering a donated new mini bus and trailer especially designed for transporting cluster bomb victims and carrying supplies and equipment. Both the mini bus and trailer were painted white with the red crystal emblem clearly marked on sides, back and roof of the bus and sides of the trailer. This would make Sid’s daily trip to and from the railway station at Macy easier because he would not have to lift victims and supplies up onto the back of the old truck he was presently using.

2.4; On 20 November 2007 Ebay Gee was planning the next guerrilla attack by FDP on the Delarus armed forces in the town of Macy. Also present at the meeting was Bill Headline, a famous war reporter, who had known Ebay at university in the early 1980’s and had contacted Ebay asking if he could write about the aims and exploits of FDP and ask some questions about alleged atrocities committed in the fighting. Ebay opened the meeting with a short speech:

“FDP seeks the return of democracy to Delarus. We can only defeat the invaders by disrupting the economy of Delarus and destroying all those who support Delarus. Our attacks in the Delarus and Lovenia have caused a lot of trouble. We need to stop supplies moving north by trains into Lovenia. We need to stop it for at least two weeks. That will affect the Delarus army. I know that will also seriously affect the export of raw materials. That will damage the Delarus economy. Buyers will start to look elsewhere. The money will dry up. We only attack those who oppose us, who oppose us with weapons. We do not kill unarmed civilians, women or children. The reports of us killing and raping women and children are lies told by the invaders to dishonour the FDP. The killings and rapes are done by the Delarus armed forces to spread fear in the people who would support FDP and to get international support against us. But we will win. Now to the next mission against the invaders”.

2.5; During a break in the planning meeting Bill Headline interviewed Ebay Gee. In the interview the following exchange took place:

Bill: “What do you have to say about the reports that FDP kills unarmed civilians?”

Ebay: “Delarus government propaganda. I see the reports on the internet when we have satellite access and sometimes in newspapers we find when we go on raids. Some civilians are always killed during fighting. It is accidental. It could be by them or us. I say they kill civilians after we have left an area to blame us. Even the international media is saying Delarus cannot control its own soldiers”.

Bill: “True, Delarus does seem to have problems with some of its soldiers, but what about the eyewitnesses who say it was your guerrillas that killed civilians and raped the women and robbed towns, villages and travellers?”

Ebay: “They are liars and government sympathises. You heard what I just told my men. Of course they would say we committed these crimes if the government told them to say that. You would say what the government told you to say if government troops had just killed and raped your family and friends and told you they would shot you if you did not say what they told you to say?”

Bill: “I understand what you are saying, but Delarus soldiers rarely carry machetes and many of those killed and maimed have machete injuries. Can you see why people say it was FDP who caused machete injuries?”

Ebay: “Bill, you know me, I do not carry a machete. The government soldiers must have used machetes taken from my dead soldiers. You said it yourself some of them carry machetes. Sometimes my men may loss control but can you blame them? Remember, my soldiers have to be careful in Delarus because many locals support the illegal government occupation of Lovenia. I keep telling them we must not kill or injure unarmed civilians. One of the problems we face is that many of the farmers on the Delarus side of the border are armed and will shoot at us or attack us with machetes and farm tools if we give them the opportunity. Enough questions, let’s have a drink and talk about our days at university.”

Bill: “Before we talk about university, what do you say about the reports of your guerillas kidnapping young girls?”

Ebay: “Bill, look around, can you see any young girls? All lies. Sometimes when we go through a small village or town the young women ask my men for sex because they look on us as heroes. You cannot stop young people from enjoying themselves.”

Bill: “Why does the FDP use cluster bombs?”

Ebay: “It helps us protect our escape routes because it slows down the Delarus army. They don’t like it when they step on a cluster bomb or a cluster bomb falls out of a tree as they pass underneath. It also has the benefit of forcing people into Macy and Horta causing disruption and trouble for the Delarus authorities. They are invaders and we have to use whatever means we have available to force them out of Lovenia. When they say they will leave Lovenia we will stop using cluster bombs. I’m worried we will run out of cluster bombs before we can force the Delarus government to withdraw.”

As they walked Bill Headline said:

“Your men do not seem to have a lot of extra clothes. Some wear jewellery. There is not much furniture and there are no art works. Have you hidden jewellery, furniture and art works taken from Delarus?”

Ebay: “We have few possessions. Nothing is taken except some food and any weapons. We never take all of a farmer’s food, only enough for a meal if we are hungry.”

Bill: “Why are those caves up the hill that the men keep going into guarded and the rest including those that contain ammunition, guns and mines unguarded?”

Ebay: “We cannot guard all the caves, now for a drink and back to the meeting.”

2.6; Ebay Gee and his guerillas continued to plan their attack on Macy. Bill Headline was allowed to listen. The plan was to seize the small transport junction town of Macy, destroy the main rail bridge and as much of the railway line as possible whilst burning the radio station, police station and army barracks. Ebay said:

“We must destroy the infrastructure they need for supporting their war effort against us, against the people of Lovenia. Before we burn the army barracks we must take all the weapons and ammunition, this is very important. I want all the weapons and ammunition in that arms depot; I’ve heard they have some cluster bombs in there. We must not hurt the local people. Make sure they can escape to the west when we attack from the other three sides. We will set up a machine gun on the western side between the town and the airport but only for defence and to kill any soldiers or police who leave that way unless they surrender. Remember there is a refugee camp, aid post and rehabilitation centre to the south of Macy. Keep away from this camp unless you are chasing Delarus soldiers. Do not kill any soldiers that surrender or are injured in the camp unless they refuse to surrender. We will use them to try and swap for any of our people that are captured. One attacking group will fire mortars at the airfield so planes will not be able to take off or land. The attack will start as the morning train from Horta to Taro signals it is about to leave the main Macy Railway Station.”

To Bill Headline, Ebay said:

“See how careful we are, what they say about us is all lies and propaganda. You can come with me on the attack if you like and see for yourself?

Bill Headline:

“I would like that, can I take photos?”

Ebay:

“Of course my friend, you will go with a group that will be entering Macy from the north with me to seize the main railway station. There is a tall clock tower from which you can see the fighting if the Delarus soldiers do not run away. Later, if everything is safe you will be shown around the town. It is very important you stay with the two guards I will leave with you; I do not want to be blamed for anything that happens to you. I will be with the group attacking the railway station and then I will set up my headquarters in town after we have seized the railway station. I might send for you if it is safe after my troops have taken control otherwise you will be taken back here and we will talk when I return.”

Bill Headline heard Ebay say to his officers as he led them away:

“Be careful, we cannot trust anybody in this town, take no chances, they all support the Delarus armed forces.”

2.7; On the night of 21 November 2007 a large band of FDP guerillas moved into position outside the town of Macy. At about 8am on 22 November 2007 the Horta to Taro express train blew its whistle upon which the guerrillas attacked the town heading for the airfield, army barracks, police station, radio station and railway station. At the start of the fighting the local residents hid inside and locked their doors and windows. Those furthest from the fighting fled out of town many heading towards the refugee camp, aid post and rehabilitation centre that was one kilometer outside of Macy towards the south.

2.8; One group moved to block the airport road and another prepared to blow up the railway bridge as the train passed over the bridge. At the police station guerillas fired mortar rounds and machine gun fire into the building till it caught fire and collapsed burning to the ground. Anyone who tried to escape was shot. The army barracks was heavily guarded because of the arms depot inside. At the railway station a group of guerrillas launched an attack against Delarus army trucks and buses carrying soldiers and equipment away from the station towards the army barracks. At the same time Sid was driving the new mini bus which he had loaded with supplies and medical equipment away from the railway station towards the aid post. He had traveled about 100 metres south when the fighting started. One of the guerrillas yelled towards Ebay:

“Look that white bus is getting away!”

Ebay yelled: “Stop it, I want it searched”.

The troops fired hitting the bus causing it to crash. Sid was badly injured.

Ebay told his men to treat Sid’s injuries and to search the bus and trailer while he moved towards the main part of the town of Macy. During the search of the mini bus and trailer by the guerrillas a sealed envelope was found containing the equivalent of US$500 in local currency. This money was for Mas and Sid to purchase local food for the refugee camp. The money was taken by the guerrillas.

2.9; The attack on the army barracks was not going well. The Delarus soldiers were supported by a small group of elite troops who were travelling south on leave and had stayed in the barracks overnight. They were well trained and well armed, but the barracks was difficult to defend. At about 10am the local commander decided they could no longer defend the barracks and the arms depot. The officer in charge said:

“We will break out towards the airport, on the way there is the old compound next to the hospital. If we can make the compound we will stay there as it is easier to defend. We will blow up the arms depot as we leave.”

The Delarus army troops fought their way out of the barracks and headed towards a walled compound next to the Macy hospital which would be easier to defend till reinforcements arrived. As they left for the compound the arms depot exploded.

2.10; Ebay Gee heard the explosion. When he heard that the arms depot had been destroyed he flew into a rage. Ebay said:

“I will make them pay. They will not escape. Make sure the locals do not help the soldiers, search for any weapons in the houses as we go. Take any weapons you find”.

2.11; Ebay Gee took some his guerrillas and moved thru the town to cut off the retreat of the Delarus army soldiers. On the way they broke into houses searching for Delarus soldiers. Citizens who tried to stop the searches were beaten. Those who held weapons and did not surrender immediately were shot. As they neared the hospital Ebay Gee realized the Delarus soldiers had taken refuge in a walled compound beside the Macy hospital. This compound was easy to defend because of its high solid walls and the buildings inside provided a clear view of the surrounding streets. Ebay could see the Delarus soldiers were shooting a lot of his guerillas and if this continued he would have to withdraw.

2.12; Ebay Gee became very angry. He said to his officers:

“Pull our soldiers back, set up barricades in the surrounding streets so they cannot escape. We have to be quick before reinforcements arrive. Take over the hospital, it is higher and you can shoot down into the compound. Don’t let anybody get in your way. Bring a doctor and any nurses you can find to treat our wounded with you when you leave. Ignore any Delarus soldiers in the hospital unless they are armed. The rest of you continue to search the town while we have time.”

2.13; Meanwhile, on the western side of town the guerrillas guarding the road to the airport could see a lot of people running from the town towards the refugee camp. On their radio they heard about the explosion, the troops breaking out of the army barracks and the money found in Sid’s refugee camp vehicle. They decided to search the camp for any other money. They approached the camp and said;

“We know you have money. We know you are hiding soldiers. We saw some run here. Give us the money and the soldiers or we will kill you all”.

Mas approached them and said:

“You can see our signs. We are not involved in your fighting. We only help those in need. We do not take sides. The only money we have is for food. The only people here are civilians and those needing medical help. Please leave us alone.”

The guerrillas said:

“You lie – give us the money”

Mas gave them what money she had, about the equivalent of US$25.

A guerrilla hit Mas on the head with the flat blade of a machete. The guerrillas then searched the camp, the aid post and rehabilitation centre. A doctor tried to stop them entering the aid post but they beat him with a rifle butt, entered the aid post to find two unarmed soldiers being treated for injuries. The soldiers started to limp from the aid post but were shot and killed by the guerrilla’s. As they started to search they were told they were needed in town so they left saying:

“We will be back”.

2.14; From his position in the railway clock tower Bill Headline watched the fighting around the compound near the hospital and saw the guerrillas shooting into the compound from the hospital. Some of the soldiers in the compound fired back. The bodyguards became very excited and no longer paid any attention to him as they watched what was going on in town. They could all see some bodies that appeared to be falling out of hospital windows. It was impossible to tell from the distance who they were. One of the bodyguards said as he rubbed his machete:

“Look, if the fighting goes well we will be able to enjoy ourselves as we leave. We will be satisfied”.

Another one said, rubbing his crotch:

“We have to have our satisfaction”.

At this point the Bill Headline became scared and decided he should sneak away and hide while the bodyguards were not looking at him. He left the building and hid in a nearby garbage bin. He could hear the bodyguards looking for him but then the shooting stopped and he heard one say:

“Come we will find him later, we must have our satisfaction”.

2.15; About 20 minutes later Bill Headline could hear in the distance shooting, explosions, cheering and people running past. He could also hear distant screams. He could also smell burning. He did not move for about an hour by which time the noise in the town had stopped. Bill Headline climbed out of the bin and moved quietly towards the main part of town. There were lots of dead people including civilians, Delarus soldiers and dead guerillas. Delarus soldiers were moving thru the town. Everywhere he went there were dead bodies, some having been killed by machetes. Some women in some of the houses looked like they hade been raped before being killed. In places he saw pieces of jewellery and other valuable objects lying on the ground. Near the walls of the hospital there were some 10 medical staff and patients lying on the ground. It looked like they had fallen from the upper windows of the hospital. In the hospital most patients were still hiding under their beds. The patients who were clearly identifiable as soldiers had been shot. Some of these soldiers had their army rifle beside or on their bed. Bill Headline noticed some Delarus soldiers also carried machetes hanging from their army belts. Some of these soldiers were searching the houses while others had taken up positions behind fences and in the foyers of big buildings.

2.16; Bill Headline heard new shooting and explosions coming from outside Macy. He went back and climbed the clock tower. He could see Ebay’s guerrillas retreating from a larger Delarus army force which had arrived unexpectedly from the northwest. The guerrillas were forced to retreat to the south past the refugee camp, aid post and rehabilitation centre. Bill Headline could see white flags and signs marked with a red symbol. It looked like the guerilla force would be destroyed by the chasing Delarus soldiers until the guerillas moved to place the refugee camp, aid post and rehabilitation centre between themselves and the larger Delarus army force. The Delarus army soldiers could not shoot at the guerillas without hitting people in the refugee camp, aid post and rehabilitation centre. The guerillas dug in behind the camp on a small hill as the sun set. The hill was some 50 metres from the camp. The guerrillas set up their mortars and fired them towards the Delarus soldiers who stopped advancing. Bill Headline later found out the guerillas had been firing cluster bombs over the camp into the path of the advancing Delarus soldiers. The guerrillas continued to occasionally shoot towards the Delarus army soldiers who eventually decided to retreat back to the outskirts of Macy as it was becoming dark. The next morning the guerillas had escaped into the Highlands.

2.17; The fighting between the Delarus armed forces and the FDP continued for some time. However, on 29 November 2007 Ebay Gee and the FDP guerillas were ambushed in their Highland camp. The resulting battle resulted in many of his guerillas being killed or captured. The rest fled and went into hiding. In the confusion Ebay Gee escaped into the Highlands. On 1 December 2007 the Delarus armed forces declared an end to most of the fighting.

The Case: The End of the Conflict

2.18; By I January 2008 an interim government had been set up in Lovenia. A treaty was signed between the parties. The treaty included:

1. The Delarus armed forces would within 7 days withdraw from the territory of Lovenia.

2. The remnants of any armed forces of Lovenia and the citizens of Lovenia would not hinder in any way or manner the withdrawal of Delarus armed forces.

3. Lovenia would bring to trial in its Supreme Court any persons accused of crimes against humanity or war crimes.

4. Delarus would set up an International Special Court and bring to trial any persons accused of crimes against humanity or war crimes.

5. The parties would sign an amnesty to facilitate reconciliation between the parties.

6. Any prisoners of war or persons seized as part of the recent armed conflict would be returned to their State of origin.

7. Neither party would seek financial compensation for damages arising out of the recent armed conflict.

The amnesty provided:

1. This amnesty will apply only to those not accused of crimes against humanity or war crimes.

2. The aim of the amnesty is to promote reconciliation between the citizens of Lovenia and the citizens of Delarus.

The Delarus armed forces withdrew to Delarus.

2.19; On 21 January 2008 the Supreme Court of Lovenia listed in its court list for the following week the trial of Ebay Gee for alleged crimes against humanity and alleged war crimes. Publication of the trial was suppressed from the media on the basis that any announcement could stir up trouble and affect long-term reconciliation between Lovenia and Delarus. On 28 January 2008 the trial of Ebay Gee commenced and lasted for two days. Only Lovenian nationals were called as witnesses. Ebay Gee was acquitted of all charges.

2.20; On the evening of 7 February 2008 agents of Delarus seized Ebay Gee as he was walking to his home in Taro. They hid Ebay Gee in the boot of a car and took him across the border into Delarus. On 9 February 2008 Ebay Gee was handed into the custody of the International Special Court in Horta.

2.21; Lovenia demanded Ebay Gee be returned immediately to Lovenia. The Delarus authorities refused saying Ebay Gee’s fate rested with the International Special Court.

3. The Special Court

The following articles of the Statute of the Special Court for Delarus may or may not be relevant.

Article 1

Competence of the Special Court

The Special Court shall have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law committed in the territory of Delarus and Lovenia from 1 January 2000 to date.

Article 2

Crimes within the jurisdiction of the Court

1. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

a. genocide

b. crimes against humanity

c. war crimes

d. the crime of aggression

Article 3

Crimes Against Humanity

1. The Special Court shall have the power to prosecute any persons who committed the following crimes against humanity as part of a widespread or systematic attack against any civilian population, with knowledge of the attack:

a. murder

b. extermination

c. enslavement

d. deportation or forcible transfer of population groups

e. imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law

f. torture

g. rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence of comparable gravity

h. persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any other crime within the jurisdiction of the Court

i. enforced disappearance of persons

j. the crime of apartheid

k. other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health

2. For the purpose of paragraph 1;

(a) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attacks

3. For the purpose of this statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.

Article 4

War crimes

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, "war crimes" means:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages.
(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:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(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;

(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

(vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;

(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;

(xii) Declaring that no quarter will be given;

(xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;

(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

(xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;

(xvi) Pillaging a town or place, even when taken by assault;

(xvii) Employing poison or poisoned weapons;

(xviii)Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition contained in international treaties and conventions.

(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
(c) 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 torture;

(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(iii) Taking of hostages;

(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii)Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(v) Pillaging a town or place, even when taken by assault;

(vi)Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

(ix) Killing or wounding treacherously a combatant adversary;

(x) Declaring that no quarter will be given;

(xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xii)Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;

(f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.

Article 5

Individual Criminal Responsibility

a. A person who planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute shall be individually responsible for the crime.

b. The official position of any accused persons, whether as Head of State or Government or as a responsible government official, shall not relieve such person of criminal responsibility and shall not mitigate punishment.

c. The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if the superior knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators thereof.

d. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the Special Court determines that justice so requires.

Article 6

Jurisdiction over juveniles

a. The Special Court shall have no jurisdiction over any person who was under the age of 15 at the time of the alleged commission of the crime. Should any person who was at the time of the alleged commission of the crime between 15 and 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child.

b. In the disposition of a case against a juvenile offender, the Special Court shall order any of the following: care guidance and supervision orders, community service orders, counseling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies.

Article 7

The amnesty signed between the interim government of Lovenia and the government of Delarus shall have the status of international law.

Article 8

Issues of admissibility

1. Having regard to article 1 and article 2, the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 9, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court.

2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 2;

(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise is unable to carry out its proceedings.
　

Article 9

Ne bis in idem

1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.

2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.
3. No person who has been tried by another court for conduct also proscribed under article 2, 3 and 4 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

Article 10

The Composition of the Court

The trial chamber of the Court shall be constituted by two Delarus judges and one foreign judge experienced in International Humanitarian Law.

Article 11

Procedure

The Special Court may make its own Rules of Procedure. In the absence of any Rules, or in interpreting the Rules, the Court shall be guided by the International Criminal Court.

4. International Conventions

4.1; During the whole of the period 1 January 1980 to 31 December 2008, Delarus was at all relevant times a party to the four Geneva Conventions of 1949, and the two additional Protocols of 1977 and the Third Additional Protocol of 2007. Lovenia was at all relevant times a party to the four Geneva Conventions of 1949, and the two additional Protocols of 1977. Lovenia has not ratified the Third Additional Protocol of 2007.

5. Preliminary Argument before the International Special Court

5.1; The prosecution and the defence (“the parties”) have asked the court to hear preliminary arguments to determine issues of jurisdiction and admissibility.

The indictments are not yet in issue.

The parties have agreed for the purposes of the legal argument that the facts as set out in the:

· ‘Background Information’,

· ‘The Case’ and

· ‘The Case: The End of the Conflict’

· ‘International Conventions’.

are to be taken as agreed for the purpose of resolving preliminary issues including jurisdiction and admissibility.

5.2; The applicant (prosecution) seeks declarations that:

Delarus was entitled under international law to seize and take Ebay Gee from Lovenia to stand trial in Delarus in the International Special Court.

The International Special Court has jurisdiction to place on trial Ebay Gee notwithstanding his trial before the Supreme Court of Lovenia on or about 28 January 2008.

3. The amnesty entered between the interim government of Lovenia and the Government of Delarus on 1 January 2008 does not apply to Ebay Gee.

4. The use of cluster bombs by Ebay Gee between 20 April 2006 and 1 January 2008 in the States of

1. Lovenia and/or
2. Delarus

falls within Article 3, section 1(k) of the Statute of the International Special Court.

5. The shooting at the vehicle driven by Sid on 22 November 2007 in the town of Macy by armed forces led by Ebay Gee contravenes international humanitarian law and in particular Article 4 (2)(b) (iii) and Article 4 (2)(b) (xxiv) of the Statute of the International Special Court.

5.3; The Respondent (the defence) seeks declarations that:

Delarus was not entitled under international law to seize and take Ebay Gee from Lovenia to stand trial in Delarus at the International Special Court.

The International Special Court does not have jurisdiction to place on trial Ebay Gee because under the terms of the treaty entered into by the parties at the end of hostilities Lovenia did on 28 and 29 January 2008 brought Ebay Gee to trial before the Supreme Court of Lovenia at which trial he was found not guilty of any crimes against humanity or any war crimes.

3. The amnesty entered into between the interim government of Lovenia and the Government of Delarus on 1 January 2008 does apply to Ebay Gee.

4. The use of cluster bombs by Ebay Gee between 20 April 2006 and 1 January 2008 in the States of

1. Lovenia and/or
2. Delarus

does not fall within Article 3, section 1(k) of the Special Statute of the International Special Court.

5. The shooting at the vehicle driven by Sid on 22 November 2007 in the town of Macy by armed forces led by Ebay Gee does not contravene international humanitarian law and in particular does not contravene Article 4 (2)(b) (iii) and Article 4 (2)(b) (xxiv) of the Statute of the International Special Court.