UNIVERSITY OF SAINT LA SALLE (USLS)

COLLEGE OF LAW

Team Members:
KEVIN DANIEL LOCSIN RAMOS
CHRISTJOHN VILLALUZ
WILLIAM AZUCENA
GINN UNDAR

THE PROSECUTOR
v.
COLONEL XANDER RIVIA

MEMORIAL FOR THE DEFENDANT

Word Count: 1,960

 DEF03

THE PROSECUTOR
v.
COLONEL XANDER RIVIA

October 2019

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 TABLE OF CONTENTS

INDEX OF AUTHORITIES …………………………………………………….……………..4

A. Treaties, Conventions and Other Laws ….…………………………………………...4

B. Judicial Decisions ……………………………………………………………………4
C. Treatises and Commentaries …………………………………………………………4

STATEMENT OF FACTS ……………………………………………………………..…...5-11

SUMMARY OF THE PLEADINGS …..……………………………….…………………..…12

PLEADINGS AND AUTHORITIES .………………………………………….………….13-18

Count 1 ………………………………………………………………………………13-15
Count 2 ……………………………………………………………………...……….15-16
Count 3 …………………………………………………………………………...….16-18

PRAYER ………...………………………………………………………………………..…….18

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 INDEX OF AUTHORITIES

A. TREATIES, CONVENTIONS AND OTHER LAWS

 Article 8(2)(b)(iv) of the Rome Statute

 Elements: Article 8(2)(b)(iv) of the Rome Statute, War crime of excessive incidental
death, injury, or damage

 Article 49(1) of the 1977 Additional Protocol I to the 1949 Geneva Conventions defines
“attacks”

 GC I-IV common Article 2.

 Charter of the United Nations and the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States

 Rome Statute, Article 22(2).

 Rome Statute, Article 8(2)(b)(xii)

 Rome Statute, Article 31(1)(d)

 Rome Statute, Article 31(1)(d)

B. JUDICIAL DECISIONS
 Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 198

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 STATEMENT OF FACTS

Greater Temeria administered by the colonial power Redania was partitioned into two
states after the withdrawal of Redania from the region: The Republic of Temeria and The
Republic of Lyria.

In Temeria majority are ethnically Temeri, while the subsidiary group are ethnically
Rennish. Rennish people have historically been subject to persecution in the region. For Lyria,
the majority of its population are Rennish.

Rennish Liberation Front (RLF) is a movement who were highly active in the struggle
for independence against Redania but was later disbanded following independence. The former
leader of the RLF has a son named, Red Geralt who sits as a member of the parliament of Lyria
under the Rennish Freedom Party.

Tensions over the border between Temeria and Lyria have existed since the partition.
Lyria claims that the original partition agreement signed with Redania assigned the historic city
of Velen to the Lyrian side of the border, while Temeria claims the opposite is true.

During the Temerian Independence Day an attacker wearing colors of the of the RLF
(white stars on a blue background) killed or injured 52 people including the foreign minister
before he was fatally shot by Temerian Police officer named, Elsa Letha.

lsa Letha was elected President of Temeria because of his platform of protectionism and
border security. Temeria increased border security and restricted visas for Rennish people,
making it difficult for ethnically Rennish Temerians to depart Temeria.

In the City of Velen clashes between demonstrators and police resulted in fatalities.
Allegedly Lyrian Intelligence Service agent was arrested by Temerian Police after apprehended
driving a truck with load of demonstrators.

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 Temeria began building a wall on the border between Temeria and Lyria which was
later declared by Lyrian Government to be an act of aggression.

Construction of the hall was stopped by artillery fire coming from Velen directed to
Temeria. Barricade was damaged and 59 people majority of whom coming from Temerian
Armed Forces (TAF) and the Temerian Police Force were killed while sleeping in their barracks
when the attack happened. RLF claimed responsibility of the attack. Weapons used were
identified as the same system used by the armed forces of several States in the region, including
the Lyrian Defence Force (LDF).

Over the course of the next week the RLF clashed with the Temerian police. There were
casualties from the protesters, Temerian law enforcements, and the RLF. Also, the construction
site and supplies for such was raided by armed persons wearing colors of the of the RLF.

RLF made further attacks against TAF with heavy weapons which forced the latter to
be displaced outside the city of Velen. RLF developed a system of seniority, denoted by the
number and arrangement of white stars displayed on a member’s armbands, also, Recruitment
of new members was highly successful. Later, the border from Lyria and the City of Velen was
declared by the RLF to be a “liberated zone”.

Later, Temerian Cabinet leaked a footage of the arrested Lyrian Intelligence Agent
wearing a prison uniform, claiming that MP Red Geralt was a member of the leadership of the
RLF and was also using the Central Bank of Lyria to fund the RLF, also, Members of the
Rennish Freedom Party, the political party of MP Red Geralt, made private donations of
medical supplies for a field hospital in the “liberated zone”.

Weapons captured by TAF during clashes were the same model issued by the LDF,
further reported in the news that RLF was supplying its operations in Velen from a headquarters
located on the mountainous area (Skillig) of Lyrian territory. The Lyrian Government strongly
denied any link with the RLF and further claimed it was not aware of any RLF operations on
its territory.

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 Red Geralt resigned from the Lyrian parliament and afterwards released a YouTube
video calling for an end of President Letta’s tyranny and identifying himself as the new political
leader of the RLF.

Reputable journals showcased RLF training camps conducted by LDF in Skillig.

Temerian Times reported that LDF were embedded as the advisers for the RLF. TAF was able
also to identify the mortal remains of one casualty in the border attack as a former LDF officer.
Republic of Lyria issued a statement claiming that the man held a valid Temerian visa and that
the officer had been de-commissioned from the LDF the previous year.

After long months, TAF had regained control of nearly half of the “liberated zone”
which enabled them to conduct operations on the southernmost part of Velen. But Velen
remained a strong RLF position having the liberated zone as the heart of its operations.
Although there were always clashes in and around the city, the city itself had remained relatively
free from violence and a large civilian population remained, composed of both Rennish and
non-Rennish Temerians.

Considering that the terrain is well known to RLF and that Velen being a historical city
having fortified inner and outer walls surrounding it, TAF operations inside the walls led to
massive TAF casualties. High civilian casualties were also reported, caused by the use of
explosive weapons in populated areas and the heavy fire around.

After a month, TAF began successfully intercepting the RLF’s supply chain to the city
from the north. But further attempted operations within the city continued to produce casualties
for the TAF and also for the civilians in Velen.

Therefore, TAF area commander, Colonel Rivia, issued directive 66 to all TAF Units in
the Velen area saying that the means of fighting of the RLF should be cut off by all necessary
means. TAF conveyed a message thru thousands of leaflets and used cell towers directed to
South and West of Velen informing residents of the 48 hour period to evacuate the area, also,
leaflets contained messages for RLF fighters to surrender or else they will face the end of the
conflict not in a nice way. 30,000 people of Velen was able to evacuate, 2,000 of which were
Rennish.

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 As exits were sealed and units were on patrol all over the perimeter, a “shoot on sight”
policy was also initiated by the TAF for anyone seen on the wall.

Due to lockdown, there were reports of starvation within the city. Due also to the damage
to infrastructures from the use of explosives, part of the water mains and sewage system
between the South and East quarters of the city collapsed which caused the outbreak of cholera
for the next months.

TAF supervised the evacuation of civilians from the city which was impaired by
exchanges of fire between TAF and RLF members as the RLF members were attempting to
enter the city dressed as humanitarian workers and carrying relief supplies for their comrades.

A month after, international pressure on the government of Temeria to permit the

delivery of humanitarian assistance to Velen. The General Assembly passed a resolution
condemning the humanitarian crisis in the city and several States unilaterally imposed arms
embargoes and economic sanctions.

By this point, the siege had taken a serious toll on the operations of the RLF. The RLF
had lost control of a significant portion of Velen and TAF units were now stationed precariously
within sections of the city. These TAF Units operated with relative autonomy given
communication difficulties and the rapidly changing front line. The RLF retained a stronghold
in the large Eastern Quarter, where a large number of civilians also remained trapped without
supplies.

President Letha announced that the International Committee of the Red Cross (ICRC)
had the agreement of all parties, including the Temerian government, to enter Velen on 5
February to provide the first distribution of food and medical supplies to the Eastern quarter of
the city. Red Geralt made a broadcast on his YouTube channel on 4 February 2014 in which he
recognised the “fundamental right of the civilians in Velen to independent, impartial and neutral
humanitarian assistance” and welcomed the assistance of the ICRC in Velen. Red Geralt
expressed his wish to be present to distribute the aid to the besieged civilians personally. The
government of Lyria issued a statement in which it declared that it “unreservedly supports the

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right of all people to humanitarian assistance and considers the obstruction of humanitarian
assistance to be contrary to international law.”

TAF received intelligence that Red Geralt may have crossed the border from Lyria into
Temeria. Colonel Rivia issued an order to all TAF Units in and around Velen to “fire at will” if
they had eyes on Red Geralt.

A convoy of eight land cruisers passed through the TAF Command Centre directing
TAF operations in and around the city of Velen. Carrying primarily food items, water, etc. The
convoy was driven by ICRC delegates, accompanied by several doctors and nurses from the
Temerian Red Cross Society. The delegates confirmed the expected delivery time in Velen was
shortly after 07.00. The Red Cross emblem was displayed prominently on the bonnets and sides
of the vehicles and all personnel wore vests displaying the same emblem on their chests and
backs.

The convoy radioed back to the Command Centre as they entered the city of Velen,
informing Colonel Rivia that the convoy was entering the outer fortified wall via the eastern
gate as planned. As the convoy penetrated further into the Quarter, radio contact was lost.

The convoy passed an RLF checkpoint without incident. Reaching a flooded section of
road, the convoy attempted to continue by fording the filthy water. The lead two vehicles
became heavily bogged in the water up to the window line. The convoy successfully extracted
personnel from the vehicles but were unable to pull the mired land cruisers from the water using
tow lines attached to other vehicles. The bonnets of the two towing vehicles were sprayed with
thick mud and oil slick in the process. Given the dire situation of the civilians in the Eastern
Quarter, the decision was made to attempt delivery via an alternative route. An attempt was
made to radio the TAF Command Centre. The TAF signals operator informed Colonel Rivia of
the attempted communication from the convoy, reporting the only clear word “water”.

TAF Unit 52, holding a temporary checkpoint in the Southern Quarter, was successfully
ram-raided by a small truck. One-unit member suffered minor injuries. Lieutenant Metz of Unit
52 contacted the Command Centre, reporting that armed RLF members were seen in the vehicle

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as it forced its way through the checkpoint and that Unit 52 was now on high alert for further
attacks.

TAF Unit 45 was positioned in the absolute perimeter of the Eastern Quarter, at some
distance from the nearest RLF-held buildings but with surveillance vision of one of the expected
assistance distribution points. At 07.00, and again at 07.30, Unit 45 contacted the TAF
Command Centre to report that they had not sighted the convoy.

Lieutenant Metz of Unit 52 contacted the Command Centre, reporting the approach of
unidentified vehicles in the Southern Quarter of Velen, close to the border of the Eastern
Quarter. Communication was patchy.

COL Rivia: “How many vehicles do you see?”

LT Metz: “Six vehicles. Preparing to engage.”

COL Rivia: “Do you see a cross on the vehicles?”

LT Metz: “We .... front vehicles... camouflaged... mud.”

COL Rivia: “Can you confirm it is the RLF?”

LT Metz: “.... red .... red ............ RLF. Preparing to fire.”

Unit 52 fired on the convoy, wounding eight humanitarian personnel. The wounded
were taken to a field hospital and later transferred to hospital in Novigrad to recover. One doctor
required amputation of a leg as a result of his injuries. All further assistance to Velen was
delayed and the international community strongly condemned the incident.

Colonel Rivia withdrew Unit 52 from Velen as a disciplinary measure and posted it to
the north-western border region, outside the former “liberated zone”.

A cease fire agreement was signed between President Letha and Red Geralt on behalf
of the RLF. Humanitarian assistance was finally able to reach the civilian population in Velen.

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 Large protests and sporadic violence continued, mainly in the former “liberated zone”,
reaching a low with the 2016 peace negotiations. As a key component of these peace
negotiations, Colonel Rivia was delivered into the custody of the International Criminal Court
on 15 July 2016.

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 SUMMARY OF THE PLEADINGS

I. No crime cognizable under the Rome Statute has been committed. The elements under the
Rome Statute for the alleged crime has not been satisfied. The specific purpose of the directive
66 of Colonel Rivia is to cut the means of fighting of the RFL in order to regain ground lost
on the part of TAF which is a valid military strategy. The Means of fighting means
ammunitions, firearms which entries toward the headquarters of RFL be cut off by enforcing
a blanket no-entry or exit policy will inconvenience the enemy or reduce his fighting strength
which will in turn avoid further casualties.

II. There was no intention on the part of Col. Rivia to perpetrate the attack against the
humanitarian personnel. Certain circumstance caused the vehicles to be sprayed with thick
mud and oil covering the cross emblems placed in the different parts of the vehicles, which led
him to believe that it was the indeed them who were in the vehicle and not the Red Cross
volunteers. No malicious intent, apart from any link between the conduct in question and the
damage that took place.

III. The war crime of declaring that no quarter will be given punishable under Article
8(2)(b)(xii) of this Court’s Statute was not committed. The first element of declaring or
ordering that there shall be no survivor is not present in the subject directive. The fourth
element of occurrence of the crime in the context of and associated with an international armed
conflict is not present in this case. Defendant cannot be deemed as individually criminally
liable for the commission of the alleged act.

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 PLEADINGS AND AUTHORITIES

2. FIRST COUNT

2.1 The war crime of 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 under the Rome Statute (Footnote 1) was not committed. The elements 1 under
the Rome Statute for the alleged crime has not been satisfied.

2.2 The cutting of supplies is not considered an attack within the meaning of International
Humanitarian law. In international humanitarian law, “attack” 2 refers to a particular category
of military operations. There was no violence employed in intercepting the supplies intended
for RLF nor the sealing one of the remaining exits fortified by the RLF.

2.3 The supplies belonged to RLF and the TAF are within their rights to intercept the
supplies that aid their enemy and a non-violent method of resolving the conflict the
soonest possible time. To further their operations in the city would result to more casualties
from both sides.

2.4 Since there was no attack in intercepting enemy supplies within the meaning of
international humanitarian law, other elements of the crime cannot be said to have taken
effect.

2.5 Granting without conceding that there was an attack, such cutting off and sealing of one
of the remaining exits is not the attack that would cause incidental death or injury to
civilians or damage to civilian objects or widespread, long-term and severe damage to the
natural environment and that such death, injury or damage would be of such an extent

1
Elements: Article 8(2)(b)(iv) of the Rome Statute, War crime of excessive incidental death, injury, or damage
2
Article 49(1) of the 1977 Additional Protocol I to the 1949 Geneva Conventions defines “attacks”

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 as to be clearly excessive in relation to the concrete and direct overall military advantage
anticipated.

2.6 There is no showing that TAF knew their actions in cutting off the RLF supplies and one
of the two remaining exits would result to incidental death or injury to civilians or
damage to civilian objects or widespread, long-term and severe damage to the natural
environment and that such death, injury or damage would be of such an extent as to be
clearly excessive in relation to the concrete and direct overall military advantage
anticipated. The damaged to infrastructure such as the collapse of the water mains and sewage
system that resulted to cholera outbreaks was not intended and foreseen by the forces and
employed to advantage.

2.7 This is not a case of international conflict.3 The conduct is not within the purview of armed
conflict which may arise between two or more of the High Contracting Parties nor this is a
case of partial or total occupation of the territory of a High Contracting Party. The Lyrian
Government strongly denied any link with the RLF and further claimed it was not aware of
any RLF operations on its territory.

2.8 The conduct of cutting of supplies was not made pursuant to armed conflicts in which
peoples are fighting against colonial domination, alien occupation, or against racist
régimes in the exercise of their right of self-determination.4 The leader of the RLF, Red
Geralt, never claimed any of such causes in their takeover of the city belonging to the Republic
of Temeria.

3
GC I-IV common Article 2.
4
Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States

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 3. SECOND COUNT

3.1 On basis of command responsibility, the war crime of intentionally directing attacks
against personnel, installations, material, units or vehicles involved in a humanitarian
assistance or peacekeeping mission was not committed. The elements for the war crime
under Article 8 (2)(b)(iii) are as follows:
1. The perpetrator directed an attack.
2. The object of the attack was personnel, installations, material, units or vehicles involved
in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the
United Nations.
3. The perpetrator intended such personnel, installations, material, units or vehicles so
involved to be the object of the attack.
4. Such personnel, installations, material, units or vehicles were entitled to that protection
given to civilians or civilian objects under the international law of armed conflict.
5. The perpetrator was aware of the factual circumstances that established that protection.
6. The conduct took place in the context of and was associated with an international armed
conflict.
7. The perpetrator was aware of factual circumstances that established the existence of an
armed conflict.

3.2 Clearly, the 3rd and 5th element of the alleged crime is absent in this case. There was no
intention on the part of Col. Rivia to perpetrate the attack against the humanitarian personnel.
The unquestionable evidence led him to believe that it was the RLF fighters who were in the
vehicle and not the Red Cross volunteers. The mens rea to commit the crime against the
humanitarian personnel was indeed absent. Foremost, there was already an agreement by all
parties including the Temerian Government and TAF Commander Col. Rivia to allow the
ICRC to enter Velen to provide the distribution of medical and food supplies. The intent of
Col. Rivia was to neutralize belligerent forces consequently his actions were based on the
intelligence provided to him by his ground units primarily Unit 52. Under the additional
protocol of June 1977, the mens rea required to establish responsibility must be so serious that

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 it is tantamount to malicious intent, apart from any link between the conduct in question and
the damage that took place. (pages 157, 1012).

3.3 The communication between Rivia and his forces was also “patchy” thus he was made to
believe that the persons who were on the vehicle was Red Geralt and the RLF forces and
not the ICRC team who was unfortunately there. Furthermore, there was nothing on the
evidence presented that Col. Rivia ordered to fire on the vehicle. As stipulated, the
communication ended with Lt. Metz saying, “…. red … red ………RLF. Preparing to fire.”
There was nothing in the evidence nor in the facts which was presented that Col. Rivia ordered
Lt. Metz to fire on the vehicle.

4. THIRD COUNT

4.1 The war crime of declaring that no quarter will be given punishable under Article
8(2)(b)(xii) of this Court’s Statute was not committed. According to Article 22(2) of this
Court’s Statute, The definition of a crime shall be strictly construed and shall not be extended
by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person
being investigated, prosecuted or convicted.5

4.2 It is alleged by the prosecution that on October 15 defendant issued directive 66 to all
TAF units in the Velen area to all TAF Units in the Velen area to “take all necessary
measures to cut off the RLF’s means of fighting” and “remember who we’re fighting, the
RLF are barbarians, they take no prisoners”. The issued directive is not contemplated as
punishable under Article 8(2)(b)(xii) of this Court’s Statute or the war crime of denying
quarter. The elements of the aforementioned war crime that must concur is that the perpetrator
must have declared or ordered that there shall be no survivors, it was given in order to threaten
an adversary or conduct hostilities, he was in a position of effective command or control over
the subordinate forces, conduct took place in the context of and was associated with an

5
Rome Statute, Article 22(2).

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 international armed conflict and the perpetrator was aware of factual circumstances that
established the existence of an armed conflict..6

4.3 The first element of declaring or ordering that there shall be no survivor is not present
in the subject directive. As alleged by the prosecution the directive only instructed the TAF
units to take all necessary measure to cut off the RLF’s means of fighting. Nothing in the
subject directive did the accused declared or ordered to his subordinates that there shall be no
survivor or to kill all the enemies. Following the principle of Nullum crimen sine lege, any
crime must be strictly construed, and any ambiguity shall be interpreted in favor of the accused.

4.4 The fourth element of occurrence of the crime in the context of and associated with an
international armed conflict is not present in this case. As previously mentioned, the armed
conflict was between the Republic of Temeria and Rennish Liberation Front. Moreover, Lyrian
Government strongly denied any link with the RLF and that they further claimed that it was
not aware of any RLF operations in its territory as a result this case should not be viewed as an
International Armed Conflict.7

4.5 Defendant cannot be deemed as individually criminally liable for the commission of the
alleged act. For individual criminal responsibility to attach two elements must occur (i) the
accused’s conduct contributed to the commission of an illegal act, and (ii) knowledge or intent,
that is awareness by the actor of his participation in a crime.8 The issuance of the alleged
directive is not an illegal act as contemplated in this Court’s Statue as already explained in the
above discussion. Arguendo that the act of the accused constitutes a crime there is still absence
of knowledge or intent by the accused to commit such crime.

4.6 Defendant’s alleged act was justified by necessary and reasonable means to avoid
imminent serious bodily harm. Article 31(1)(d) of this Court’s Statute postulates that conduct
which is alleged to constitute a crime within the jurisdiction of the Court if done with necessary

6
Rome Statute, Article 8(2)(b)(xii)
7
Moot Problem p.4.14
8
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 198

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 and reasonable means to avoid imminent death or serious bodily harm extinguished the liability
of the perpetrator.9 The issuance of the alleged directive 66 was meant to prevent further harm
to the sovereignty of Temeria and the lives of the residents and nationals living therein.

5. PRAYER

5.1 It is respectfully submitted that there is no sufficient evidence to establish substantial

grounds to believe that the defendant committed any of the crimes charged. Accordingly,
it is requested that this Honorable Court decline to confirm all the charges.

All of which is humbly prayed,

Counsels for the Defendant

9
Rome Statute, Article 31(1)(d)

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