Team No.

714
Indonesian National Round
International Humanitarian Law Moot Court Competition
Memorials of the Defendant
212
!. C"L"N#L C. $"N#% I% N"T &'ILT( )"R *!R CRIM#% ") CR'#L
TR#!TM#NT !ND T"RT'R#
The prosecutor failed to prove some elements.
1
Civilians are persons who are
not part of armed force and not being a member of militias,
2
and to those who did
not take direct part in the hostilities.
3
Furthermore, a conduct which categorized as
take direct part in hostilities cover act which b the purpose are likel to cause harm
to personnel of the armed force.
!
"n the present case, #$F discovered important caches of weapon in the
apartments in Corti,
%
which then the discover prompted the interrogation and
provoked the suspection of #$F towards the victims that the were the supporters
of the &'$ militias,
(
considering the mens rea
7
of the victims for keeping the
weapon was considered to cause in)ur. Furthermore, the weapons found in the
apartments entitled the victims detained to the status of carring arms openl,
*
as
the are carring arms, without taking into account whether the carriage was visibl
or not. Thus, as &'$ has been outlawed as it is a threat to national securit,
+
the
detained persons have lost their protection as civilian
1,
for being suspected to
engage in activities hostile to the securit of state for supporting the militias, the
victims detained in Corti can be classified as combatant
11
as the were armed and
likel to cause harm. "n $rgus, the detained persons were also suspected as
1
$rt. *-2.-c.-i. of "CC /tatute
2
$rt. ! of 0C "1 1+!+
3
$rt. ! para.1 of $2 "" of 0C 1+33
4
Bagilishema "CT4 Trial 5udgement, "CT46+%61$, para. 1,!
5
Fact 2*
6
Fact 2+
7
Kordic and Cerkez, "CT7 Appeals Chamber Judgement, 'o. "T6+%61!826$, para. 111
8
"C4C Commentaries of $rt. !-a.-2. of 0C """ 1+!+
9
Fact 12
10
$rt. % of 0C "1 1+!+
11
Supranote 3, para. %!
2
supporters of &'$ militias,
12
thus, the have lost their status of civilian
13
as the
also support the militia.
9oreover, the prosecutor also failed to prove that the perpetrator was aware
that the victims of the detainee, either in $rgus and Corti, were civilian.
1!
$s the
perpetrator believed that the persons detained were the supporters of the &'$
militias.
1%
From the e:planation above, prosecutor failed to prove all of the elements of
either war crimes of cruel treatment and torture. Thus, Colonel C. 5ones is not guilt
for war crime of cruel treatment and torture.
+. C"L"N#L C. $"N#% I% N"T &'ILT( ") *!R CRIM#% ") "'TR!&#%
',"N ,#R%"N!L DI&NIT(
Colonel C. 5ones did not commit an act of outrage upon personal dignit
particularl degrading treatment against one or more persons. 2eople who were
detained in prison b the militar personal were &'$ smpathizers and not met
the ;ualification as hors de combat.
1(
Civilian status of a person was lost when the
taking part of the armed conflict.
13
Furthermore, based on 0eneva Convention "1
$rticle %, a person under definite suspicion of activit hostile to the securit of the
<ccuping 2ower, such person shall, in those cases where absolute militar securit
re;uired. Therefore, the are alread lost their rights as civilian
1*
and will have the
status of prisoners of war if been caught b enem personnel.
1+
$nd if the prisoners
12
Fact 2(
13
Supranote 1,
14
Supranote 1
15
Fact 2(, 2+
16
$rt !1 of $2 " of 0C 1+33
17
$rt. 1 of $nne: of =C "1 1+,3
18
$rt. % of 0C "1 1+!+
19
$rt. % of =C "1 1+,3
3
of war considered as threat for the public securit around occupied territor, the
can be e:ile b the occupant for the purpose to securing the area nearb.
2,
"n present case, the instruction of that has been given b 5ones in behalf of
central command was an intention to protect the civilian around Corti and e:posing
the &rakonian militar personnel.
21
"t was an act to identif medical personal that
was around Corti at the time of conflict
22
and to defend civilian population. The
medical transport lost their protection whose function harmful to the enem.
23
The
firing came from ambulance which transporting armed men and ammunition tring
to bpass a control post
2!
while their function outside humanitarian of medical
transportation.
From the e:planation above, prosecutor failed to prove some elements of
crime outrages upon personal dignit. Thus, Colonel C. 5ones is not guilt of
committing outrages upon personal dignit particularl degrading treatment.
C. C"L"N#L C. $"N#% I% N"T &'ILT( )"R *!R CRIM#% ")
#-C#%%I.# INCID#NT!L D#!TH/ IN$'R(/ "R D!M!&#
Colonel C. 5ones is not guilt for war crime of e:cessive incidental death,
in)ur, or damage.
2%
The attack b Colonel C. 5ones did not fulfill the elements of
crime. $dditional 2rotocol 1 defines >attacks? as >acts of violence? against the
adversar, whether in offence or in defense.
2(
"t should be e:plained that >acts of
violence? means acts of warfare involving the use of violent means@ the term covers
the rifle shot and the e:ploding bomb. Aased on the e:planation above, it can be
proved that actuall Colonel C. 5ones did not commit an kind of attack like the
20
$rt % of $nne: of =C "1 1+,3
21
$rt. %1 of $2 " of 0C 1+33
22
$rt. 1* $2 " of 0C 1+33
23
4ule 2+ of Customar "nternational =umanitarian Baw
24
Fact 33
25
$rt. *-2.-b.-iv. of the "CC /tatute.
26
$rt. !+ para.1 of $2 " of 0C 1+33
!
e:planation above. =ence, in the =ague Convention 1" there is no e:planation
about the specification of attack or means or methods of attack.
Thus, Colonel C. 5ones is not responsible for the attack of power plant in
Aargo. "t is proved b the report from e:perts and commentators that pointed out the
'CC was behind the cber attack is still lack of evidence. The report from the
e:pert and the commentators is not reliable and do not have an base to announce
the report that Colonel C. 5ones was responsible for the attack. $dditionall, based
on article 1% of 4ome /tatute the statement that pointed b the e:pert and
commentator is not a statement that can be evidence before the court. Thus, the
prosecutor cannot prove that Colonel C. 5ones has launched an attack to 2ower
2lant in Aargo.
There is no concrete militar advantage anticipated that Colonel C. 5ones
achieved from the attack of the 2ower 2lant in Aargo. The attack that happened in
Aargo onl caused some damages around the power plant, such as %,, civilian
deaths and it caused the harsh climatic condition happened after the power plant
attacked.
23
The elements of crime in *-2.-b.-iv. of 4ome /tatute cannot be proved
that Colonel C. 5ones obtained an militar advantage b the attack of power plant.
"n fact, as in elements of crime, there is no evidence that Colonel C. 5ones achieved
the concrete militar advantage in the cber attack that resulted the complete
shutdown of the station which resulted in massive disruptions of power suppl on
Aargo station that affected
2*
the electricit and water suppl of 9esto, which is the
damage caused b the virus.
Colonel C. 5ones did not know about the cber attack that would cause
incidental death and severe damage to the natural environment and that such death
%,, people in Aargo. Colonel C. 5ones had stated that he had no knowledge of an
involvement b the #$F or an other 0overnment $genc of #atoland in planning
or carring out such attacks.
2+
Thus, Colonel C. 5ones was not aware of factual
circumstances that established the e:istence of an armed conflict in 9esto.
27
Fact !2
28
Fact !,
29
Fact !%
%
=ence, the prosecutor failed to prove that Colonel C. 5ones is responsible for
war crime of e:cessive incidental death, in)ur, or damage.
D. ,R!(#R )"R R#LI#)
Aased on the foregoing reasons, the Counsel of &efendant respectfull
re;uests that this Court D#CL!R# that Colonel C. 5ones is not guilt for@
1. Car Crimes of violence to life and person, in particular cruel treatment and tortureD
2. Car crimes of outrages upon personal dignitD
3. Car crimes of e:cessive incidental death, in)ur, or damage.
R#%,#CT)'LL( %'+MITT#D
!&#NT% )"R TH# D#)#ND!NT
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