GesmundoProsecution

Prosecutor

v.

Shelly Duval

December 2019

Page 1 of 15
 TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................ 2

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

STATEMENT OF FACTS ...................................................................................................... 4

SUMMARY OF PLEADINGS ............................................................................................... 6

PLEADINGS ............................................................................................................................ 7

I. PRELIMINARY MATTERS ...................................................................................... 7

A. Admissibility of the case under the Rome Statute ...................................................... 7

B. Nature of the Conflict................................................................................................. 7

C. Burden of Proof.......................................................................................................... 8

II. DUVAL IS CRIMINALLY RESPONSIBLE FOR THE CRIME AGAINST

HUMANITY OF EXTERMINATION ............................................................................... 8

A. The crime against humanity of extermination ........................................................... 8

III. WAR CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST

BUILDINGS DEDICATED TO RELIGION .................................................................. 11

A. Individual criminal responsibility for ordering the commission of war crime ........ 11

1. Duval is responsible for the destruction and/or damage of the Pinky Shrine .......... 11

2. Colonel Duval had personal knowledge of the location and purpose of the assembly

of TLO Leaders ............................................................ Error! Bookmark not defined.

B. Colonel Duval is liable for commanding an attack against protected objects ........ 12

1. The attack was located in a UNESCO World Heritage which served as a sacred

place ............................................................................................................................. 12

IV. NAZIR IS LIABLE FOR WAR CRIME OF TORTURE ....................................... 13

A. Colonel Duval is criminally liable for the war crime of torture .............................. 13

Page 2 of 15
CONCLUSION/PRAYER FOR RELIEF ........................................................................... 15

Page 3 of 15
 INDEX OF AUTHORITIES

STATEMENT OF FACTS

Tegi Territory: Dispute between Beshtea and Tiktikels

The Republic of Beshtea and the State of Tiktikels were among the Founding States of the Commented [WU1]: Hi! Please indent, thanks

Gharl Union. One of the outstanding issues in Gharl is the territorial dispute between Beshtea
and Tiktikels over the cultural province of Tegi in Beshtea. Tiktikels believes that Tegi was
its territory, but when Beshtea and Tiktikels gained independence from colonial powers in
1965, the territory was given to Beshtea. This resulted to the involvement of armed forces
from both countries.

Tegi’s Independence: formation of TLO Commented [WU2]: Abbreviations should be spelled out in the
beginning to not to confuse the reader

Despite the political turmoil, new developments started taking place in the Province of Tegi.
However, certain sections of the people of Tegi felt that they are discriminated against in
employment and economically in Beshtea and that their culture and language are constantly
disrespected and undermined. Dissatisfaction with the Beshtean government has driven
educated youth to demand the liberation of the people of Tegi, which led to the formation of
the Tegi Liberation Organization.

On April 10, 2016, the TLO held its first conference in Ashanti, capital city of Tegi and
adopted its Action Plan which sought to achieve independence and statehood for Tegi and
establish democracy in the future State of Tegi. In the following days, nearly two thousand
people led by TLO gathered in Ashanti to support the TLO. Following these events, the
government of Tiktikels stated that Tiktikels were of the view that the formation of TLO was
the consequence of negligence perpetuated in every field by the Beshtea government, and that
Tiktikels would extend moral and other forms of support to TLO, as needed.

Attack against TLO Leaders

It was exposed that the TLO was acquiring weapons from Tiktikels across the border and
that TLO leaders were seen returning from Tiktikels to Tegi. On 6 September 2016, the
President of Beshtea made a nationally televised announcement of the deployment of
military forces under the command of Colonel Shelly Duval to the Province of Tegi within

Page 4 of 15
the next three days. Several armed confrontations between the Beshtean security forces and
TLO activists.

Local media in Tegi reported a major clash between the military forces led by Colonel Duval
and suspected TLO activists on 2 November 2016. Colonel Duval claimed that according to
reliable intelligence he had received, the leaders of TLO were in a meeting with more than
two hundred armed cadres in the closed community hall of the northern suburban locality of
Ashanti city. Thus, Beshtean military personnel under his command were deployed to the
venue of the meeting. TLO claimed that none of the its top leaders were at the meeting since
it was convened by local residents in preparation for the upcoming festival of the Owver
religion.

Pinky Café’s Attack: The Destruction of Pinky Shrine

On 28 December 2016, pursuant to an intelligence information he received, Colonel Duval

immediately ordered an attack against the TLO leaders in the Pinky Café, a cafe next to the
Pinky Shrine. Accordingly, TLO leaders were having a preparatory meeting in said café for
their next operation with members of Tiktikelian armed forces. This resulted to the death and
injury of a number of people while the shrine, holy grails, the massive murals, and the wall,
were damaged. The next day, Tegi Human Rights Forum reported that nearly one hundred
and fifty Teginian people were taken into custody when they were taking part in the religious
procession in the western part of Ashanti. It was later discovered that the arrested persons
were brought to an abandoned government building where they were allegedly treated
inhumanely; while several detainees committed suicide. Commented [WU3]: Please separate into two paragraphs

Page 5 of 15
 SUMMARY OF PLEADINGS

First, the case brought before the Trial Chamber is admissible pursuant to Article 19
of the ICC Statute.

Second, the conflict between the Beshtean armed forces and the TLO was an
international armed conflict. Commented [WU4]: Indicate legal basis why

Third, Duval is individually criminally responsible for committing the crime against
humanity of extermination under Article 7(1)(b) of the ICC Statue, with respect to the acts
committed at the community hall on 2 November 2016.

Fourth, Duval is individually criminally responsible for ordering, soliciting, or

inducing the commission of the war crime of intentionally directing attacks against buildings
dedicated to religion under Article 8(2)(b)(ix) of the ICC Statue, with respect to the acts
committed against the Pinky Shrine on 28 December 2016.

Fifth, Duval is criminally liable on the basis of command responsibility for the war
crime of torture under Article 8(2)(a)(ii) of the ICC Statute, with respect to the treatment of
persons who were arrested on 28 December 2016 and detained in the old building.

Page 6 of 15
 PLEADINGS

I. PRELIMINARY MATTERS

Duval faces the Pre-Trial Chamber I for the confirmation of charges, 1 where under
such proceeding, the Prosecutor shall provide with sufficient evidence to establish substantial
grounds to believe that Duval committed the crime charged.2 The Prosecutor shall offer
concrete and tangible proof demonstrating a clear line of reasoning underpinning its specific
allegations.3 The Chamber must be thoroughly satisfied that the Prosecutor’s allegations are
sufficiently strong to commit Duval to trial.

A. Admissibility of the case under the Rome Statute

The case at bar falls within the jurisdiction of the International Criminal Court as set
forth in the Rome Statute. The ICC has the power to exercise its jurisdiction over persons for
the most serious crimes of international concern so long as those crimes were committed after
the Rome Statute entered into force for the State Party.4 The Statute also provides that the
jurisdiction of the ICC shall be complementary to national criminal jurisdictions.5

B. Nature of the Conflict

The conflict at bar is an international armed conflict as defined under the Geneva
Convention. Commented [WU5]: For the footnotes below, don’t number
them if you don’t have sources to cite with

1 Facts ¶33.

2 Rome Statute [Statute], art. 61(5).

3 Prosecutor v. Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-

02/09, ¶37.
4

Page 7 of 15
 International armed conflicts (IACs) occur when one or more States have recourse to
armed force against another State, regardless of the reasons or the intensity of this
confrontation. These conflicts occur in cases of declared war or of any other armed conflict
which may arise between two or more of the High Contracting Parties, even if the state of
war is not recognized by one of them.6

i. EXPLAIN FURTHER THE IAC AND ELEMENTS.

C. Burden of Proof

The Prosecutor shall provide sufficient evidence to establish substantial grounds to

believe that Duval committed the crime charged. The Chamber must be thoroughly satisfied
that the Prosecutor’s allegations are sufficiently strong to commit the person to trial pursuant
to the concrete and tangible proof, which the Prosecution shall offer, demonstrating a clear
line of reasoning underpinning its specific allegations, going beyond ‘mere suspicion’ of the
crime charged against Duval.7 Commented [WU6]: Please observe the spacing between your
primary arguments

II. DUVAL IS CRIMINALLY RESPONSIBLE FOR THE CRIME AGAINST

HUMANITY OF EXTERMINATION

Duval is individually responsible for the crime against humanity of extermination

committed on 2 November 2016.

A. The crime against humanity of extermination

The elements of crimes against humanity of extermination include the following: 1)

The perpetrator killed one or more persons, including by inflicting conditions of life
calculated to bring about the destruction of part of a population; 2) The conduct constituted,

6 Geneva Conventions [Conventions], Common Art. 2.

7 Rome Statute [Statute], art. 61(5).

Page 8 of 15
or took place as part of, a mass killing of members of a civilian population; 3) The conduct Commented [WU7]: Number them as “3.)” much more formal

was committed as part of a widespread or systematic attack directed against a civilian

population; 4) The perpetrator knew that the conduct was part of or intended the conduct to
be part of a widespread or systematic attack directed against a civilian population.8

In the present case, there is no doubt that Colonel Shelly Duval actively committed
and participated in all phases of the armed conflict with respect to the attack in the closed
community hall of Ashanti on 2 November 2016, by the ordering of the deployment of two
hundred fifty-six (256) Beshtean military personnel under his command to said place.
Furthermore, he had ordered the military forces to surround and secure the vicinity, pursuant
to a reliable intelligence Duval had received which provided that the leadership of TLO were
in a meeting with more than two hundred (200) armed cadres in the closed community hall of
the northern suburban locality of Ashanti city.9

1. Duval killed one or more persons to bring about the destruction of part of a
population Commented [WU8]: Introduce the defendant as his full name
first, then in the paragraphs, his last name would suffice

On the night of the attack, the Beshtean military personnel found fifty six (56) dead
bodies and arrested seventy two (72) people. Colonel Duval confirmed that during the attack,
his forces acted swiftly, caused the least number of casualties and prevented a major attack by
disrupting the TLO meeting.10 By this statement, it can be inferred that Colonel Duval
admitted his responsibility with the death of one or more persons on the 2 November 2016
attack.

2. Duval’s conduct constituted a mass killing of civilians

Acting upon a reliable information Duval had received, he had ordered an attack on
the Pinky Café and deployed two hundred and fifty six (256) Beshtean military personnel
under his command. During the attack, the military personnel were systematically grouped

8 Elements art 7 (1) (b).

9 Facts ¶15.

10

Page 9 of 15
and placed to surround the venue as ordered by Colonel Duval. 11 The mere act of Duval in
deploying a number of military force is already a clear showing his intent to commit a
widespread killing of civilians which were done in an organized manner.12

ADD.

3. Duval’s conduct was committed against a civilian population Commented [WU9]: Arguments of 2 and 3 can be joined
together

 ADD.

4. Duval had knowledge of the systematic attack

Colonel Duval had knowledge of the systematic attack since he was the one who
ordered the deployment of the military personnel and their grouping to surround the
community hall.13 --- add

B. Intent and knowledge are present in the case at bar

The Rome Statute specifically provides that “unless otherwise provided, a person
shall be criminally responsible and liable for punishment for a crime within the jurisdiction of
the Court only if the material elements are committed with intent and knowledge.” A person
has intent where: (a) in relation to conduct, that person means to engage in the conduct; (b) in
relation to a consequence, that person means to cause that consequence or is aware that it will
occur in the ordinary course of events. Knowledge means awareness that a circumstance
exists or a consequence will occur in the ordinary course of events. 14

1. Colonel Duval is aware of the consequence of his conduct --- add

11

12

13
Facts ¶15.

14

Page 10 of 15
III. WAR CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST
BUILDINGS DEDICATED TO RELIGION

Colonel Shelly Duval is individually responsible for ordering the commission of the
war crime of intentionally directing an attack against a building dedicated to religion on
December 28, 2016.

A. Individual criminal responsibility for ordering the commission of war crime

Colonel Shelly Duval is individually and criminally responsible for ordering the
commission of the war crime for planning and successfully attacked TLO leaders and killed
twelve (12) people, seven (7) wounded and the Shrine was damaged. An individual is
criminally responsible if he perpetrates, takes part in or attempts to commit a crime. 15 He is
particularly responsible through ordering the commission of the war crime. The position of a
Colonel presupposes a higher position due to the fact that such position entails the power
and authority to control vis-à-vis command persons to commit a crime (actus reus) and
personally are aware (mens rea) of this control are considered principals. Commented [WU10]: You can split this into two paragraphs

1. Duval is responsible for the destruction and/or damage of the Pinky Shrine

Colonel Duval is said to have participated in the commission of the war crime as
defined in The Krnojelac Trial Chamber which provides the forms of participation in a joint
criminal enterprise. A joint criminal enterprise is a legal doctrine used during war crimes
tribunals to allow the prosecution of members of a group for the actions of the group. This
doctrine considers each member of an organized group individually responsible for crimes
committed by group within the common plan or purpose.

Colonel Duval, by the position he holds, directed the commission of the attack against
the TLO leaders, where without which, the attack would not have taken place. To order an
attack is tantamount to ordering a crime since an attack is defined as an aggressive and
violent action to be taken against a place or an enemy with weapon or force. As a Colonel
who has superior authority over the legal and effective control over the soldiers and TPP

15 Remarks on the General Part of International Criminal Law, 4 J. INT'L CRIM.

JUST. 663 (2006)

Page 11 of 15
personnel who were driven by the order to attack and target TLO forces which eventually led
to massive killings and destruction of the Pinky Shrine and other cultural properties.

Colonel Duval received an intelligence information from TPP indicating the assembly of
TLO leaders in the Pinky Café which is located next to Pinky Shrine. The attack was
carefully planned as to not cause panic among the people in the area.16 The fact that Colonel
Duval had personal knowledge of the location of the attack and its effects to the people
around it is deliberated as if he is fully aware of the substantial likelihood that not only will
the Shrine be damaged but also the possibility that such attack would affect innocent persons.
In this case, Colonel Duvel received an intelligence information which is considered to be a
gallant information, and yet as the appointed commander charged with military experience
and tactical skills, should have taken precautionary steps to protect a UNESCO World
Heritage Site which is a sacred place for the Owver religion and for community gatherings of
Teginians, as well as that it would be filled and occupied with individuals Teginians or
otherwise.

B. Colonel Duval is liable for commanding an attack against protected objects

Colonel Duval had personal knowledge of the location and the substantial likelihood
of the effects of the attack considering that he is the appointed commander charged with
military experience and skills as well as furnished with an intelligence information and yet
he still ordered much less with intent to further the attack despite knowing fully well that
such action would result to the destruction and damage to the Shrine and its religious murals
and objects of the same kind.

1. The attack was located in a UNESCO World Heritage which served as a sacred
place

Colonel Duval ordered the commission of the attack notwithstanding the possibility
that such attack is located in a place devoted to religious worship and gathering and that it is
occupied and filled with innocent people with the purpose of doing acts related to their
religion. The Shrine is considered to be a protected property due to its character and nature
such that an attack and/or destruction to it constitute as a blatant disregard to the Rome Statue

16 Id.

Page 12 of 15
to which the state is a signatory to. Colonel Duval was only motivated to attack the Shrine
not knowing that the people occupying the location is indeed military objects. He did not
exercise proper diligence in ensuring the safety of the cultural property and the people within
the vicinity. Thus, he should be held liable for the blatant neglect of duty to protect and
exclude objects or people that are not considered as military objects.

Such attack which took place within the vicinity of a UNESCO World Heritage does
not justify military necessity because for it to be considered a justifiable act, the property in
question must have “by its function, been made into a military objective”, on the one hand,
and there must be “no feasible alternative available to obtain a similar military advantage”,
on the other.17

IV. NAZIR IS LIABLE FOR WAR CRIME OF TORTURE

A. Colonel Duval is criminally liable for the war crime of torture

Colonel Duval having a superior position with the authority to command and order its
soldiers and personnel has responsibility to ensure that the acts of the soldiers would benefit
rather than destroy or inflict harm against individuals not considered as a military object.

During the press conference initiated by the Owver Charity Association (OCA),
twenty two (22) iindividuals who claimed to have been arrested along with others on the
night of December 28 2016 when they were participating in a religious procession that they
were taken to an old abandoned building in the eastern suburb of Ashanti. It was testified that
the building had no electricity, running water supplu or even toilets. Detainees were kept in
isolation in a closed cell which is only four (4) to five (5) square meters with no visible
means of sunlight. Along with that they were only able to move out of the inhumane cell once
a week. They were also given with only two glasses of water and a slice of bread which is not
enough to give an ordinary person enough nutrients and energy as a normal person would
have acquired on a normal day. Furthermore, it was reported that the detainees are sleepless
and became ill due to the conditions that they were put through by the black uniformed Commented [WU11]: On footnote 17, please change the font
size

17 Second Protocol to the Convention for the Protection of Cultural Property in the

Event of Armed Conflict

Page 13 of 15
guards without medical attention. Last but not the least, there were six (6) detainees who
committed suicide. The people who were lawlessly taken through the order of Colonel Duval
would rather choose death rather than experiencing and facing the pain and suffering they had
to go through under the command of Colonel Duval. This is a breach of a State’s duty of
prohibition against ill-treatment of civil internments.

Moreover, the testimonies also stated that they recalled Colonel Duval’s visit to the
building in the first week of their confinement. They saw him talking to the black uniformed
personnel who were guarding the building and one of the inmates heard him saying that
security and order in Tegi needs to be restored, such that the religion and language of Beshtea
should be imposed in Tegi, among other measures to be adopted. They also said that they saw
new people being brought to the building every day. Many of them were injured and yet were
not provided with medical assistance. Such act is a blatant disregard of the Geneva
Convention and Rome Statute. Commented [WU12]: Legal basis

The Teginians were unlawfully taken away during a religious gathering vis-à-vis visit
to the heritage site whilst being suspected of being affiliated with TLO who only wanted to
be an independent state, these people were not verified to be military objects such that they
were unlawfully taken and made to suffer just because they were in the vicinity when the
attack happened. Commented [WU13]: Please add notes

Page 14 of 15
 CONCLUSION/PRAYER FOR RELIEF

Based on the rules and evidence stated above, it is respectfully requested before this
Honorable Chamber to adjudge and declare that the charges against Colonel Michell Nazir be
confirmed. Commented [WU14]: It could help that state your legal basis
for the prosecution.

RESPECTFULLY SUBMITTED,

Counsel for the Prosecution Commented [WU15]: Please do observe the proper spacing,
and substantiate your arguments based on our intl laws. Good
luck!!

Page 15 of 15