T11A

Team Code: T11

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SVKM’s KIRIT P. MEHTA SCHOOL OF LAW’S 4th

INTERNATIONAL MOOT COURT COMPETITION,
2022
The Pre-Trial Chamber 1
Case before the International Criminal Court:

Prosecutor v. Ken Adams of the Union Provinces of Ramen
The Office of the Prosecutor’s Submission in the Pre-Trial

Chamber on the conflict pertaining to the use of lethal
Autonomous weapons as a tool against humanity leading to
dispute between Ramen and Xacuti in terms of violations
under International Humanitarian Law and other treaties
SVKM’s KIRIT P. MEHTA SCHOOL OF LAW’S 4th INTERNATIONAL MOOT COURT
COMPETITION, 2022
TABLE OF CONTENTS
TABLE OF CONTENTS………………………………………………………...............
LIST OF ABBREVIATIONS…………………………………………………………….
INDEX OF AUTHORITIES………………………………………………………………
Treaties and Conventions……………………………………………………………….

Articles………………………………………………………………………………….
Books……………………………………………………………………………….........
Cases ……………………………………………………………………………………
STATEMENT OF FACTS……………………………………………………...........
STATEMENT OF ISSUES……………………………………………………………
SUMMARY OF ARGUMENTS ………………………………………………………
ARGUMENTS ADVANCED………………………………………………………….
A. Whether the ICC has jurisdiction to prosecute and hear the case against Mr. Ken Adams.
1. The ICC has Temporal Jurisdiction over the crimes pursuant to Article 11 of the
Rome Statute………………………………………………………………………….
a. The crime was committed after the Statute’s entry into force…………………………….
b. The crime was committed after the Statute’s entry into force in the State of Xacuti…...
2. The ICC has Territorial Jurisdiction over the crimes pursuant to Article 12 of the
Rome Statute…………………………………………………………………………….
a. The crime was committed on the territory of Xacuti which is a party to the Rome Statute.
b. The ICC held that it has jurisdiction over crimes committed in the territory of a state….
party irrespective of the nationality of the perpetrators in the Afghanistan situation……
3. The ICC has Material Jurisdiction over the crimes committed…………………….
a. The crimes perpetrated constitute CAH pursuant to Articles 7(1)(a) & 7(1)(k) …………
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b. The crimes perpetrated constituted War Crimes pursuant to Articles 8 (2) (e)(i) & 8(2)
(e)(iv) ……………………………………………………………………………………………….
c. The crimes perpetrated fall under NIAC……………………………………………………….
B. Whether the case against Mr. Ken Adams is admissible before the ICC under Article
17 of the Rome Statute. ………………………………………………………………………
1. The case cannot be deemed inadmissible in the court based on Complementarity
pursuant to Article 17 of the Rome Statute ……………………………………………….
a. The State was unwilling to genuinely carry out the prosecution of Mr. Ken Adams…….
b. There was an undue delay before the State approved Mr. Adam’s prosecution………….
c. Reports by NGOs are admissible in this court………… ……………………………………...
d. Ramen must provide material evidence regarding the prosecution and investigation in
order to challenge admissibility in this court ………………………………………………….
2. The case cannot be deemed inadmissible in the court based on insufficient gravity……
2.1 Sufficient Gravity is a criterion already examined in the Prosecutor’s Policy before he
commences an investigation………………………………………………………………………………
2.2 The conduct in question was systematic and large scale…………………………………………
2.3 The conduct in question resulted in immense social alarm………………………………………..
3. The conduct concerned must be systematic or large-scale…………………………………………
4. The social alarm caused to the community should be taken into account………………………..
5. The suspect should be one of the most senior leaders in the situation under investigation……
5.1 The regard should be had to the role played by him and the role played by the State or
Organization in the overall commission of the crimes……………………………………………………
C. Whether there is sufficient evidence and reasonable grounds to believe that Mr. Ken
Adams is criminally responsible for war crimes and crimes against humanity committed in
the territory of Xacuti?....................................................................................................................
1. The crimes committed are not of an international character……………………………….
2. The crimes committed were widespread and systematic …………………………………….
3. Mr.Ken Adams meets all the elements of the crime under the said charges
3.1 The crimes perpetrated constitute crimes against humanity under Article 7(1)(a) of the
Statute and satisfy the elements of those
crimes…………………………………………………………….
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3.2 The elements of the crimes against humanity of other inhumane acts pursuant to Article 7(1)
(k) of the Rome Statute are
satisfied……………………………………………………………………..
4. The crimes perpetrated constitute war crimes under Article 8(2)(c)(i), Article 8(2)(e)(i)
and (iv) of the Rome Statute and satisfy the elements of those
crimes…………………………
4.1 The elements of the war crimes of violence to life and person pursuant to Article 8(2)(c)(i) of
the Rome Statute are satisfied……………………………………………………………………………….
4.1.2 Ken Adams had the knowledge of the chance of the drones attacking civilian objects……….
4.2 The elements of war crime of intentionally directing an attack against civilian population
pursuant to Article 8(2)(e)(i) of the Statute are
satisfied…………………………………………………
4.2.1 The perpetrator was aware of factual circumstances that established the existence of an
armed conflict………………………………………………………………………………………………….
5. The elements of war crime of intentionally directing an attack against buildings dedicated
to education, hospitals etc. pursuant to Article 8(2)(e)(iv) of the Statute are satisfied
5.1 The strike on civilian objects is attributed to Ken Adams…………………………………………
D. Whether use of Swishblade 300 violates international law and Mr. Ken Adams can be
held criminally liable for its use.
………………………………………………………………………
1. The use of Swishblade 300 violates International Law………………………………………
1.1 As per of the Customary IHL, Ken Adams has violated International Humanitarian Law……..
2. By deploying Swishblade 300 Ken Adams has violated IHL…………………………………
2.2 There is a violation of article 8 of Protocol II of PROTOCOL ON PROHIBITIONS OR
RESTRICTIONS ON THE USE OF MINES, BOOBY-TRAPS AND OTHER DEVICES……………...
3. Ken Adams had the mens rea of the attack on civilian objects………………………………
3.1 Ken Adams consciously disregarded the possibility of civilian casualties……………………….
3.2 Ken Adams had requisite mens rea regarding the fact that the drone strike could damage
civilian objects……………………………………………………………………………………………
PRAYER……………………………………………………………………….
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LIST OF ABBREVIATIONS
Abbreviations Terms
¶ Paragraph
AC Appeals Chamber
CH Chapter
Elements Elements of Crimes
ICC International Criminal Court
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
ICRC The International Committee of the Red Cross
NGO Non-Governmental Organization
NIAC Non-International Armed Conflict
OTP Office of the Prosecutor
PTC Pre-Trial Chamber
Statute Rome Statute of the International Criminal Court
TC Trial Chamber
RTP Right to Privacy
UK United Kingdom
UN United Nations
UNGA United Nations General Assembly
VCLT Vienna Convention on the Law of Treatie
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INDEX OF AUTHORITIES
Treaties and Conventions
1. Elements of Crimes of the International Criminal Court (adopted 9 August 2000) UN

Doc PCNICC/2000/1/Add.2 [Elements of Crime]
2. Rome Statute of the International Criminal Court, 17 Jul 1998 (as amended 2010), 2187
UNTS 3 [ICCSt]
3. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) 1155 UNTS 331 [VCLT].
Articles
1. Thomas Davis, ‘How the Rome Statute Weakens the International Prohibition on
Incitement to Genocide’ (2009) 22 HarvHumRtsJ [Davis (2009)]
2. International Criminal Court and the Elements of Offences” (2001) 12 Criminal Law
Forum 291 [Clark]
Books
1. Byron, War crimes and Crimes against Humanity in the Rome Statute of the
International Criminal Court (Manchester University Press, 1st Edn 2009)
COMMENTARY 1962 ¶19 (2016).
2. OTTO TRIFFTERER AND KAI AMBOS, THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT
3. SCHABAS, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL
COURT: A COMMENTARY (2010)
4. William A. Schabas, An Introduction to the International Criminal Court (5th edn, CUP
2017)
Cases
1. Prosecutor v. Tadic, Jurisdiction, 02 October 1995 [IT-94-1-AR72]
2. Prosecutor v. Limaj, Trial Judgment, 30 November 2005 [IT-03-66-T]
3. Prosecutor v. Germain Katanga, Judgment, 25 September 2009, [ICC-01/09-02/11 O A]
4. Prosecutor v. Saif-al-islam Gaddafi and Muammar Gaddafi, Judgment, 10 December
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2014 [ICC-01/11-01/11-577]
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5. Prosecutor v. Bemba Gombo, Charges, 03 March 2009, [ICC-01/05-08-388]

6. Prosecutor v. Abu Garda, Charges, 07 May 2009 [ICC 02/05-02/09]
7. Prosecutor v. Al Bashir, Warrant, 12 July 2010 [ICC-02/05-01/09]
8. Prosecutor v. Ndindiliyimana, Judgment, 17 May 2011 [ICTR-00-56-T]
9. Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Judgment, 22
February 2001 [IT-96-23-T]
10. Prosecutor v. Ngirabatware (Augustin), Judgment, 30 0ctober 2009 [ICTR-99-54-T]
11. Prosecutor v. Dario Kordic and Mario Cerkez, Appeals Judgment, 17 December 2004,
[IT-95-14/2-A]
12. Prosecutor v. Tihomir Blaskic, Judgment, 03 March 2000 [IT-95-14-T]
13. Prosecutor v. Elizaphan and Gérard Ntakirutimana, Judgment, 21 February 2003
[ICTR- 96-10]
14. Prosecutor v. Vasiljevic, Appeal Judgment, 25 February 2003 [IT-92-38-A]
15. Prosecutor v. Radislav Krstic, Appeal Judgment, 19 April 2004 [IT-98-33-A]
16. Prosecutor v. Milan Lukic and Sredoje Lukic, Judgment, 20 July 2009 [IT 98-32/1-T]
17. Prosecutor v. Jean De Dieu Kamuhanda, Judgment, 22 January 2004 [ICTR-99-54A-T]
18. Prosecutor v. Momicilo Perisic, Judgment, 28 February 2013 [IT-04-81-A]
19. Prosecutor v. Laurent Semanza, Trial Judgment, 15 May 2003 [ICTR-97-20-T]
20. Prosecutor v. William Samoei Ruto, Judgment, 05 April 2016 [ICC-01/09-01/11]
21. United States of America v. Karl Brandt, 21 November 1946 [1995.A.0970]
22. Prosecutor v. Mladen Naletilic, Judgment, 31 March 2003 [IT-98-34-T]
23. Prosecutor v. Daniel Ongwen, Judgment, 23 March 2015 [ICC-02/04-01/15-422-Red]
24. Prosecutor v. Callixte Mbarushimana, Charges, 23 December 2011 [ICC 01/04-01/10]
25. Prosecutor v. Milosevic, Judgment, 20 April 2005 [IT-02-54-A-R77.4]
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STATEMENT OF FACTS
1. Republic of Xacuti is a coastal nation with a majority population following the Waterlulu
religion and a 10% minority practicing Mondulu religion. With internal socio-political
instability, a rebel group called red faction rose to power and took over the city of
Asgard. This group claim to be a champion of Mondulu rights.
2. United Provinces of Ramen (“Ramen”) is an oil-rich country with an authoritarian regime
subscribed to the Waterlulu faith. Since coming to power, Ken Adams has actively
supported the government of Xacuti in its fight against the Red Faction. The Red Faction,
on the other hand is supported financially and militarily by Mondulu nation of Zekovo.
3. On December 08, 2020, Red Faction launched explosive-laden drones towards Samra, the
capital city of Ramen. The attack damaged civilian infrastructure in Samra and resulted in
death of three civilians. As a counterattack, Ken Adams launched 5 deadly autonomous
drone missiles called ‘Swishblade 300’ towards Asgard. Two of these missiles changed
course due to technical difficulties and wreaked havoc in the villages inhabited by
civilian population adjacent to Asgard.
4. Mr. Ken Adams issued a statement that the attack was to end attacks by red faction and
bring peace and stability to Xacuti. The death of civilians was collateral damage. The
autonomous missile changing its course due to the glitch is unprecedented.
5. The government of Ramen after a delay, prosecuted Ken Adams after 15 days of
investigation, a domestic court in Ramen discharged Mr. Ken Adams on the ground that
crimes committed by the autonomous missile cannot be attributed to Mr. Ken Adams.A
prominent newspaper in Ramen reported that the trial was rigged to absolve Mr. Adams
of the charges against him. A well-organized NGO, the Human Rights Clinic published a
report on the issue. It stated about the harms of using autonomous drones.
6. Based on the aforementioned report, the office of the prosecutor of the ICC announced
opening of an investigation against war crimes and crimes against humanity allegedly
committed by Ken Adams.
7. The Pre-Trial Chamber directed the counsels for the prosecution and the defense to file
detailed written submissions and decided to address the questions of jurisdiction and
admissibility in the hearing for confirmation of charges.
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STATEMENT OF ISSUES
a) Whether the ICC has jurisdiction to prosecute and hear the case against Mr. Ken Adams.
b) Whether the case against Mr. Ken Adams is admissible before the ICC under Article 17
of the Rome Statute.
c) Whether there is sufficient evidence and reasonable grounds to believe that Mr. Ken
Adams is criminally responsible for war crimes and crimes against humanity committed in the
territory of Xacuti.
d) Whether use of Swishblade 300 violates international law and Mr. Ken Adams can be held
criminally liable for its use.
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SUMMARY OF ARGUMENTS
A. Whether the ICC has jurisdiction to prosecute and hear the case against Mr. Ken
Adams.
1. The court can exercise Jurisdiction Ratione Temporis as per Article 11 as the crime
occurred after the entry into force of the statute in Xacuti, which is party to the Rome
Statute.
2. The court can exercise Territorial Jurisdiction as the conduct in question took place in the
territory of the State Party irrespective of the fact that Mr. Adams is not a national of a
state party.1
3. The court can exercise material jurisdiction over the matter as all the 5 charges of crimes
committed fall under the ambit of the Rome Statute2
B. Whether the case against Mr. Ken Adams is admissible before the ICC under Article 17
of the Rome Statute
1. The case is admissible in the Court in accordance with the principles of complementarity
as the domestic court in Ramen was unwilling to genuinely carry on the prosecution. Both
the criteria for proving unwillingness is present in this case. Further, the detailed report by
the NGO upon investigation confirmed the court’s unwillingness to prosecute Mr. Adams.
2. There is sufficient gravity for the case to be admissible in the ICC. The conduct is found
to fit both the criteria given in the case of Ntaganda which are (i) The conduct must be
systematic or large-scale (ii) The social alarm caused to the community should be taken
into account (iii) The suspect should be one of the most senior leaders in the situation
under investigation. (iv) The regard should be had to the role played by him and the role
played by the State or Organization in the overall commission of the crimes.
1
see the Afghanistan situation
2
Article 5, RS
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Adams is criminally responsible for war crimes and crimes against humanity
committed in the territory of Xacuti?
1. The crimes that were committed are not of an international character.

2. The crimes that were committed were both widespread and systematic.
3. The crimes perpetrated constitute crimes against humanity under Article 7(1)(a) of the Statute
and satisfy the elements of those crimes as Mr. Ken Adams attacked and killed 500 civilian
population.
4. Mr. Ken Adams also tisfy the elements of crimes under Article 7(1)(k) RS as well since he
sent Mr. Bashir to set up camp in Asgard and at the same time spread a virus that infected more
than 2000 people and killed many.
5. Mr. Ken Adams also has committed war crimes under Article 8(2)(c)(i) and Article 8(2)(e)(i)
as Mr. Ken Adams has the knowledge that the drones commissioned would harm the civilian
population. He was well aware of the factual circumstances that established the existence of an
armed conflict.
6. Mr. Ken Adams will also be liable for attacking civilian objects under Article 8(2)(e)(iv). Two
primary health centres and one educational institution were damaged due the drone that was
deployed by Mr. Ken Adams.
1. Ken Adams has violated international law and must be held criminally liable for the death of
civilian objectives by Swishblade 300
2. The use of Swishblade 300 by Mr. Adams violated rules 14 and 16 of customary IHL
3. By deploying Swishblade 300 Ken Adams has violated Protocol 2 of Convention on

prohibitions or restrictions on the use of certain conventional weapons which may be deemed to
be excessively injurious or to have indiscriminate effects, 1980
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4. Swishblade 300 is a prohibited weapon as per the convention and Ken Adams is to be held
liable for violating article 4 and 7 of Protocol II
5. Ken Adams consciously disregarded the possibility of civilian casualties.
6. Ken Adams had requisite mens rea regarding the possibility of civilian deaths by Swishblade
300.
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ARGUMENTS ADVANCED
A. Whether the ICC has jurisdiction to prosecute and hear the case against Mr. Ken
Adams.
It is humbly submitted before the hon’ble court that in this case, All the three kinds of
jurisdiction laid down by the legal framework for preliminary examination abiding which the
Office of The Prosecutor has requested to initiate an investigation is fulfilled, namely:
a) Temporal Jurisdiction
b) Territorial Jurisdiction
c) Material Jurisdiction
d) Personal Jurisdiction
In the following ways:
1. Jurisdiction Ratione Temporis:
Article 11 of the Rome Statute talks about temporal jurisdiction. It lays down the following
condition in order for the ICC to have temporal jurisdiction-
a) The Court has jurisdiction only with respect to crimes committed after the entry into
force of this Statute
b) If a State becomes a Party to this Statute after its entry into force, the Court may exercise
its jurisdiction only with respect to crimes committed after the entry into force of this
Statute for that State, unless that State has made a declaration under article 12, paragraph
3.3
Both conditions are satisfied as the crime was committed after the entry into force of the statute
as well as after the statute’s entry into that state (Xacuti)
3
Article 11, Rome Statute of the International Criminal Court, 1998
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2. Territorial Jurisdiction:
The airstrikes took place in and around Asgard, a part of the territory of the Republic of Xacuti.
Considering that the Republic of Xacuti has ratified the Rome Statute of the International
Criminal Court (1998)4. The court may exercise its jurisdiction if the state on the territory of
which the conduct in question took place is a party to the Rome Statute5.
2.1 The Afghanistan Situation: The Office of the Prosecutor via Proprio Motu6 previously had
requested to open an investigation into the ‘Afghanistan Situation’.7
Although the pre-trial chamber denied the request with the rationale that investigation into the
situation in Afghanistan at this stage would not serve the interests of justice 8, both the pre-trial
chamber as well as appeals chamber recognized the ICC’s jurisdiction over crimes that happened
on the territory of Afghanistan and that took place on the territory of other state parties to the
convention in the context of the armed conflict in Afghanistan even despite American nationals
arguing that they could not be prosecuted for the aforesaid crimes because The United States of
America had not ratified The Rome Statute of the International Criminal Court, 1998. The
Appeals Chamber found that the Pre-Trial Chamber's decision contained all the necessary factual
findings and confirmed that there is a reasonable basis to consider that crimes within the ICC
jurisdiction have been committed in Afghanistan.9
3. Jurisdiction Ratione Materiae:
It is humbly submitted to the court that the crime committed falls under armed conflict not of an
international nature. Under Article 3 common to the Geneva Conventions of 12 August 1949,
non- international armed conflicts are armed conflicts in which one or more non-State armed
groups are involved.10 The ICTY developed the notion of non-international conflict by
describing it as
4
Annexure B, Moot Proposition
5
Article 12(2)(a), Rome Statute of the International Criminal Court, 1998
6
Article 15(1), Rome Statute of the International Criminal Court, 1998
7
The Prosecutor of the International Criminal Court, Fatou Bensouda, requests judicial authorization to
commence an investigation into the Situation in the Islamic Republic of Afghanistan
Image, www.icc-cpi.int
8
ICC judges reject opening of an investigation regarding Afghanistan situation, www.icc-cpi.int
9
Afghanistan: ICC Appeals Chamber authorizes the opening of an investigation, www.icc-cpi.int
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10
Non-International Armed Conflict, www.icrc.rg
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“protracted armed violence between governmental authorities and organized armed groups or
between such groups within a State.”11
 One of the criteria of NIAC provided by both the Geneva Conventions and the Tadić
case gives importance to the parties involved in the conflict for the following
determination. To qualify, the non-state group in question must possess a particular
level of organization.
 The second characteristic of NIAC is that the hostilities must reach a certain level of
intensity.
The “Red Faction” is an organized non-state group that has been terrorizing Xacuti as well as the
surrounding areas. It was found by the court in Prosecutor v. Limac that the ability of the non-
state armed group to constantly engage in armed conflict with state forces and be a part of such
“varied operations” is an indicator of its level of organization. 12 Red Faction had been engaged in
armed conflict with Ramen frequently which led to a “full-blown proxy war” since 2019 in
Xacuti. Additionally, Ramen has also directed offensive attacks against ships passing through the
coast of Asgard with advanced weaponry funded and provided by Zekovo.13 This proves the level
of organization in Red Faction and hence constitutes a characteristic in NIAC.
The second characteristic of NIAC is also fulfilled because of the intensity of the attacks which
is violative article 3 common to the four Geneva conventions; some of these violations are:
1) Intentionally directing attacks against the civilian population as such or against individual
civilians not taking direct part in hostilities.
2) 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. 14
It is submitted that the court has complete jurisdiction to hear this particular matter due to the
aforementioned reasons.
11
. Tadić, Jurisdiction, See also Rome Statute, art. 8(2)(f).
12
Prosecutor v. Limaj
13
See moot proposition ¶5
14
Article 8 (2)( c) of the Rome Statute
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B. Whether the case against Mr. Ken Adams is admissible before the ICC under Article 17
of the Rome Statute.
It is humbly submitted before the hon’ble court that in this case, the two factors to determine
admissibility laid down by the legal framework for preliminary examination abiding which the
Office of The Prosecutor has requested to initiate an investigation is fulfilled, namely:
a) Complementarity
b) Gravity
The case at hand is admissible in the ICC due to the following reasons:
1. Complementarity:
In accordance with Article 17 of the Rome Statute, A case will be rendered inadmissible in the
court if the investigation or prosecution by a state which has jurisdiction over the case is
unwilling or unable to genuinely carry out the investigation or prosecution; Also, as given as the
second test to admissibility in the court provided by this very court15.
In accordance with the facts of the case, the United Provinces of Ramen had approved the
prosecution of Mr. Ken Adams after a delay of about two months, and after merely 15 days of
investigation, Mr. Adams was discharged.
Considering the two-month delay in approving prosecution as well as the short span of
investigation before which Mr. Adams was acquitted of the reports produced by the newspaper,
Ramen Chronicle cannot be brushed off as mere baseless allegations. Henceforth, it can be
proved that the court was unwilling to genuinely carry out the prosecution in question.
Furthermore, it was clarified in the “Gaddafi case” that the state challenging admissibility must
produce concrete evidence that the prosecution and investigation were facilitated successfully
and genuinely.16
15
Katanga Judgment
16
situation in libya in the case of the prosecutor v. saifal-islam gaddafi attd abdullah al-senussi
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The decision by the Appeals Chamber was highlighted in the pre-trial chamber’s judgment in the
Gaddafi case as follows: the state challenging admissibility "bears the burden of proof to show
that the case is inadmissible" and that, to discharge this burden, "the State must provide the Court
with evidence with a sufficient degree of specificity and probative value that demonstrates that it
is indeed investigating the case. It is not sufficient merely to assert that investigations are
ongoing."17
The court, by nature of the unwillingness criteria, has a difficult task of ascertaining the state’s
motives. Priorly, this court had admitted reports by non-governmental organizations (NGOs) into
evidence in the trial of Congolese opposition leader Jean-Pierre Bemba.18
Therefore, sources such as the thoroughly investigated NGO report should be taken into
consideration, wherein it was found that the use of Swishblade 300 violates international
humanitarian law and that the spread of microbial agents in the areas adjacent to Asgard was
attributable to an individual who was sent to the said location by Mr. Ken Adams. This goes on
to prove that clearly the prosecution of Mr. Ken Adams by the domestic courts in the United
Provinces of Ramen was not conducted independently or impartially. Hence, this case cannot be
deemed inadmissible in the ICC based on complementarity pursuant to Article 17(2) of the Rome
Statute which lay down the essentials to determine unwillingness of the state.19
2. Gravity:
2.1 Prosecutor’s Policy Firstly, the Gravity of the case is priorly considered before he decides to
open an investigation. The office of the prosecutor has stated that it regards factors relevant in
assessing gravity as including the scale of the crimes, the nature of the crimes, the manner of
their commission, and their impact as approved by the Pre-Trial Chamber in its confirmation
decision.20 In this case, the OTP had already decided to commence an investigation and hence the
prosecutor by means of due
17
Appeals Chamber, "Judgment on the Appeal of the Republic of Kenya against the decision of Pre-
Trial Chamber II of 30 May 2011 entitled 'Decision on the Application by the Government of Kenya
Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute'"
18
The Prosecutor v. Jean-Pierre Bemba Gombo
19
Rome Statute of the International Criminal Court
20
Situation in Darfur, Sudan (Bahar Idriss Abu Garda) Decision on the Prosecutor’s Application under
Article 58 ICC
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process of law must have reviewed the situation completely and found the presence of sufficient
gravity in order to commence the investigation.
2.1. The Scale of the Crimes-
Although there is no specific threshold for gravity given by the ICC, the meaning of the gravity
criterion was examined by the Appeals Chamber in the case of Ntaganda. The Pre-Trial
Chamber had held that the following criteria must be met:
3. The conduct concerned must be systematic or large-scale
It is humbly’ submitted to the court that the conduct in question was both systematic and
large- scale.
Systematic- The term ‘systematic’ has been defined by the most recent cases in this Court as
“the organized nature of the acts of violence and the improbability of their random
occurrence”.21 Here, Mr. Ken Adams (in accordance with the material against the perpetrator
produced by the OTP) has ‘set the ground’ for the attack and (in accordance with the
investigation report by the NGO) by sending a man named “Bashir” to join the forces of Red
Faction which resulted in the spread of microbial agents in the areas surrounding the attack.
These actions by Mr. Ken Adams fit under the definition of ‘systematic’
Large scale- The attack caused the death of 1575 persons which included a large number of
civilians as well, hence it cannot be denied that there was a large-scale commission of the
crime.
4. The social alarm caused to the community should be taken into account
The missile attack accident wreaked havoc in the villages near to the attack location which
resulted in the death and injury of more than 100 civilians which must have been caused
immense social alarm in the community.
5. The suspect should be one of the most senior leaders in the situation under investigation
21
Al Bashir, Arrest warrant
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The suspect is the prime minister of Ramen, the state from which the autonomous drone
missiles called “Swishblade 300” was launched.
5.1 The regard should be had to the role played by him and the role played by the State or
Organization in the overall commission of the crimes
Mr. Ken Adams is the person who authorized the launch of the autonomous missiles to attack the
headquarters of the Red Faction without evacuating the civilians nearby despite having
knowledge that there might be a possibility of civilian injury and deaths.22
Therefore, it is submitted that there is sufficient gravity in this case for it to be admissible in the
ICC.
22
Situations in the DRC ICC
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Adams is criminally responsible for war crimes and crimes against humanity
committed in the territory of Xacuti?
1. The crimes committed are not of an international character.
It is humbly submitted to the court that the crime committed falls under armed conflict not of an
international nature. Under Article 3 common to the Geneva Conventions of 12 August 1949,
non- international armed conflicts are armed conflicts in which one or more non-State armed
groups are involved23. This has already been established in Issue 124
2. The crimes committed were widespread and systematic
This was an attack conducted as part of a widespread and systematic attack as not only was the
attack large in scale but it was organized crime looking for a particular outcome.
In the case of Prosecutor v. Augustin25 "The term “widespread” refers to the large-scale nature of
the attack and the number of victims, whereas the term “systematic” refers to “the organised
nature of the acts of violence and the improbability of their random occurrence”. 26With respect
to the mens rea, the perpetrator must have acted with knowledge of the broader context of the
attack, and with the knowledge that his acts (or omissions) formed part of the widespread or
systematic attack against the civilian population."
According to the Appeals Chamber in Kunarac27 et al.,
23
Non-International Armed Conflict, www.icrc.rg
24
See issue 1, ¶3
25
Augustin, Judgment
26
Prosecutor v. Augustin NDINDILIYIMANA, François-Xavier NZUWONEMEYE et Innocent SAGAHUTU,
Judgement (AC), 11 February 2014,
27
Kunarac, Judgment
23
COMPETITION, 2022
"In order to amount to a crime against humanity, the acts of an accused must be part of a
widespread or systematic attack directed against any civilian population'. This phrase has been
interpreted as encompassing five elements:
o There must be an attack

o The acts of the perpetrator must be part of the attack
o The attack must be directed against any civilian population
o The attack must be widespread or systematic
o The perpetrator must know that his acts constitute part of a pattern of widespread
or systematic crimes directed against a civilian population and know that his acts
fit into such pattern.
In the present case, there was an attack, and the act of Mr. Ken Adams is part of the attack, and
the act was done knowing that there are civilian population surrounding Red Faction’s
establishments. The attack was launched with the knowledge that the act of Mr. Ken Adams
would likely result in the damage of civilian objects and the death of the civilian population.
The term widespread has been defined in various ways and generally connotes the ‘large scale
nature of the attack and the number of victims’ 28. While ‘widespread’ typically refers to the
cumulative effect of numerous inhumane acts, it could also be satisfied by a singular massive act
of extraordinary magnitude. 29
The term systematic can be defined as ‘pattern or methodical plan’, ‘organized nature of the acts’
or ‘organized pattern of conduct’. It has also been defined as ‘the organized nature of the acts of
violence and the improbability of their random occurrence. Mr. Adam's attack was not only
widespread but also systematic. It was an attack done in a large-scale manner killing thousands
of individuals and it was
1. Plan or objective,
28
Tadic´ ICTY T. Ch. II 7.5.1997 para. 206
29
Kordic´ ICTY T. Ch. 26.2.2001 para. 176;
24
COMPETITION, 2022
2. Large-scale or continuous commission of linked crimes

3. Significant resources
4. Implication of high-level authorities 30
Mr. Adams attack had an objective, it was a large-scale commission of crime due to the number
of deaths involved, it had significant resources as the attack was done with 5 missiles and it had
the implication of high-level authorities.
3. The crimes perpetrated constitute crimes against humanity under Article 7(1)(a) and
(k) of the Statute and satisfy the elements of those crimes.
3.1 The elements of the crimes against humanity of murder pursuant to Article 7(1)(a)
of the Rome Statute are satisfied. The following are the elements for murder under
Article 7(1)(a) -
1. The perpetrator killed one or more persons.
2. The conduct was committed as part of a widespread or systematic attack directed against a
civilian population.
3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a
widespread or systematic attack against a civilian population.
Mr. Ken Adams by launching the Swishblade 300 to the territory of Xacuti has harmed and
killed an overall 1,200. The missiles that were launched by Ramen, not only destroyed the
establishments of Red Factions but also resulted in the death of 500 civilians.
30
Blaškic´ ICTY T. Ch. 3.3.2000 para. 203
25
COMPETITION, 2022
The objective element of extermination is made out. To satisfy this element, there must be a
mass killing of members of a civilian population in which the perpetrator killed one or more
persons.31 While there is no numerical minimum to meet this requirement32, the extermination
must be collective in nature and not directed at singled out individuals. 33 However, there need not
be discriminatory intent to destroy the group on specific grounds.34 A mass killing of at least 60
persons in an attack directed against a neighborhood35 would satisfy this element. Here, Mr. Ken
Adams had used the drones to kill 500 civilians.36
The attacks must have been directed against a civilian population, and they must have been the
primary object of the attack. The entire civilian population does not have to be targeted; only
more than a limited and randomly selected number37. The drone attack was widespread, large
scale, carried out as part of a premeditated governmental plan 38 and directed against part of the
civilian population resulting in the death of hundreds of civilians.
Furthermore, Mr. Ken Adams knew the drones would be used for the purpose of a widespread
attack and would likely cause casualties to the wider population as they were civilians living
close to the residing area of the Red Faction. Accordingly, the elements of Article 7(1)(a) of the
Crimes against humanity of murder are satisfied in the present case.
3.2 The elements of the crimes against humanity of other inhumane acts pursuant to
Article 7(1)(k) of the Rome Statute are satisfied. The following are the elements.
1. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical
health, by means of an inhumane act.
31
Elements of Crimes (n 121), Article 7(1)(b)(1) and (2)
32
Ntakirutimana, Judgment [516].
33
Vasiljević, Judgment [227]
34
Krstić, Judgment [500].
35
Lukić, Judgment [544].
36
Kamuhanda, Judgment [694]
37
TC I Perišić [83]; TC II Đorđević [1591-1592]; TC I Gotovina et al. [1704]; TCIII Semanza [330]; PTC II
Kenyatta [110]
38
PTC II Ruto et al. [210]
26
COMPETITION, 2022
2. Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the
Statute.
3. The perpetrator was aware of the factual circumstances that established the character of the act.
4. The conduct was committed as part of a widespread or systematic attack directed against a
civilian population.
5. 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.
The use of unmanned weapons not only led to indiscriminate killing of civilians but also
destroyed critical infrastructure including two primary health care centres and one school in the
villages adjacent to Asgard.39 Mr. Ken Adams was aware that there was a possibility of the drone
harming the civilians but launched the drone. Therefore, the elements of crime of Article 7(1)(k),
the crimes against humanity of other inhumane acts are satisfied.40
On the 25th of December, 2020, Mr. Ken Adams launched 5 missiles 41. Even prior to the attack,
Bashir, who was working with Adams had travelled to Xacuti in order to set up camp and
prepare for the airstrikes. Bashir too was killed in the airstrikes. Prior to the attack, there were
reports of several individuals in Xacuti being affected by cough, fever and muscular pain. The
cases which were not diagnosed timely led to pneumonic plague and the death of several
individuals. The first cases of infection were found in Asgard amongst the fighters of the Red
Faction.
By looking at the timeline of events and the travelling of Bashir to Asgard, there is a possibility
that the person behind this was Mr. Ken Adams and this particular infection called the Yerisina
Pestis killed a number of people of the Red Faction and moreover, spread to the civilian
population in Xacuti and infected around 2,800 civilians and led to 375 deaths. The Human
Rights Clinic, which is a well-recognized non-governmental organization, conducted an
independent investigation and revealed that the spread of microbial agents in the areas
surrounding Asgard was
27
COMPETITION, 2022
39
Moot Proposition ¶12
40
Elements of crime p6
41
28
COMPETITION, 2022
attributable to an individual named Bashir who travelled from Ramen into Xacuti to join the
forces of the Red Faction on the orders of Mr. Adams.
The IMT in the case of US v. Brandt42 held that biological experiments and acts causing serious
physical and mental injury43 fall within the ambit of ‘other inhumane acts.
The ICTY in Prosecutor v. Vasiljević, 44

held that even an attempt to murder and physical injury
falling short of torture45 would qualify as an inhumane act. The requisite nature of “other
inhumane acts” is met if it causes injury to a human being in terms of physical or mental
integrity, health or human dignity and includes any type of severe bodily harm.46 Further, it has
been recognised that a multi-layered crime is not accounted in any provision and can be
prosecuted under “other inhumane acts”.47
Therefore, Mr. Ken Adams fulfils the elements of crime against humanity of other inhumane by
using this infection as a biological weapon and killing hundreds of individuals. Mr. Ken Adams
inflicted great suffering and caused serious injury to the body and the physical health of people
through this inhumane act. Mr. Ken Adams also was aware that this infection is contagious and
can spread to several people including the civilian population as they live close to the territory
occupied by the Red Faction.
42
Brandt case ¶183; IMT Judgement ¶247
43
Blaskic Trial ¶239.
44
Vasiljević Trial ¶238.
45
Naletilić Trial ¶233; Simić Trial ¶78.
46
Tadic Trial ¶729.
47
Chea Summary ¶7,39-41; Ongwen PTC ¶ 87-90
29
COMPETITION, 2022
4. The crimes perpetrated constitute war crimes under Article 8(2)(c)(i), Article 8(2)(e)(i)
and (iv) of the Rome Statute and satisfy the elements of those crimes.
4.1 The elements of the war crimes of violence to life and person pursuant to Article 8(2)(c)
(i) of the Rome Statute are satisfied. The following are the elements under Article 8(2)
(c)(i) of the Rome Statute -
1. The perpetrator killed one or more persons.
2. Such person or persons were either hors de combat or were civilians, medical personnel, or
religious personnel taking no active part in the hostilities.
3. The perpetrator was aware of the factual circumstances that established this status.
4. The conduct took place in the context of and was associated with an armed conflict, not of an
international character.
5. The perpetrator was aware of factual circumstances that established the existence of an armed
conflict.
There were 1,200 including 100 juvenile fighters and 500 civilians because of the airstrikes
which were launched from Ramen by Mr. Adams. The Red Faction were primarily set up in
Asgard and the villages adjacent to Asgard were inhabited by civilians. In the transcript of the
telephonic conversation between Mr. Adams and Mr. Raya Habibi, it is clear that Mr. Adams
was well aware of the possibility of the civilians getting harmed and killed but continued to
launch the operation.
4.1.2 Ken Adams had the knowledge of the chance of the drones attacking civilian objects
30
COMPETITION, 2022
One of the elements under Article 8(2)(c)(i) is that ‘the perpetrator was aware of factual
circumstances that established the existence of an armed conflict’. It is not required that the
perpetrator had detailed knowledge of the attack or its characteristics. 48 But the difference in this
case is that Mr. Adams had detailed knowledge of the attack and there was an objective behind
the attack as well. In most conceivable circumstances, the existence of a widespread or
systematic attack would be notorious and knowledge could not credibly be denied. Thus,
knowledge may be inferred from the relevant facts and circumstances.49
From the telephonic conversation between Mr. Raya Habibi and Mr. Ken Adams, it is distinctly
indicated that Mr. Adams had an option of evacuating the civilian population but deliberately
chose not to do so thus making Mr. Adams criminally responsible for the crimes under Article
8(2)(e)(i) and Article 8(2)(c)(iv) of the Rome Statute.
Moreover, The Elements of Crimes clarify that, while the Prosecutor must establish the threshold
elements of war crimes, he or she need not prove that the perpetrator had knowledge of whether
or not there was an armed conflict, or whether it was international or non-international.
According to the Elements, ‘[t]here is only a requirement for the awareness of the factual
circumstances that established the existence of an armed conflict that is implicit in the terms
“took place in the context of and was associated with”50
4.2 The elements of war crime of intentionally directing an attack against civilian
population
pursuant to Article 8(2)(e)(i) of the Statute are satisfied. The following are the elements
–
1. The perpetrator directed an attack.

2. The object of the attack was a civilian population as such or individual civilians not taking
direct part in hostilities.
48
ICC Elements, Crimes Against Humanity; see also Blaskic ICTY T. Ch. I 13.3.2000 para 251.
49
ICC Elements, General Introduction, para. 3.
50
Elements of Crimes, Art. 8, Introduction.
31
COMPETITION, 2022
3. The perpetrator intended the civilian population as such or individual civilians not taking
direct part in hostilities to be the object of the attack.
4. The conduct took place in the context of and was associated with an armed conflict not of
an international character.
4.2.1 The perpetrator was aware of factual circumstances that established the existence of
an armed conflict.
The objective elements are satisfied. To satisfy these elements, there must be an attack 51 which
includes any act of violence against an adversary. 52 A civilian population would have to be the
object of the attack,53though it need not be the sole and exclusive target.54 The use of
indiscriminate weaponry that fails to distinguish between civilian objects and potential military
objects would satisfy this requirement.55This prohibition against targeting civilians is absolute
and cannot be counterbalanced by military necessity.56
An individual who participates in crimes against humanity but who is unaware that they are part
of a widespread or systematic attack on a civilian population may be guilty of murder and
perhaps even of war crimes but cannot be convicted by the
International Criminal Court for crimes against humanity. However, according to the Elements
of Crimes, this does not require ‘that the perpetrator had knowledge of all characteristics of the
attack or the precise details of the plan or policy of the State or organization’57
Mr. Adams is responsible for directing attacks against a civilian population and intentionally
directing attacks against buildings dedicated to education, hospitals etc. Mr. Adams was aware of
the fact of the civilian population inhabiting villages next to Asgard making the civilian
population extremely prone to the airstrikes that were launched.
51
Elements of Crimes (n 121), Article (8)(2)(e)(i)(1); Katanga 7 March TC, [796].
52
Katanga 7 March TC id, [798].
53
Elements of Crimes (n 121), Article (8)(2)(e)(i)(2).
54
Mbarushimana PTC, [142].
55
Galić, [36]; Katanga 7 March TC, [802]; Milošević, [948]
56
Katanga 7 March TC id, [800].
57
Elements of Crimes, para. 2.
32
COMPETITION, 2022
Therefore, Mr. Adams satisfies all the elements of Article 8(2)(e)(i).
5. The elements of war crime of intentionally directing an attack against buildings

dedicated to education, hospitals etc. pursuant to Article 8(2)(e)(iv) of the Statute are
satisfied. Article 8(2)(e)(iv) criminalizes:
The elements are satisfied as the attack not only led to indiscriminate killing of civilians but also
destroyed critical infrastructure including two primary health care centers and one school in the
villages adjacent to Asgard.58
Moreover, 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.
The health centres are school was not a military advantage as its destruction would not have
offered a definite military advantage. When there is a doubt on where there is such an advantage,
the safety of the civilian population must be taken into consideration 59 and Mr. Ken Adams
deliberately chose not to evacuate the civilians around the residing territory of the Red Faction.
The application of this test therefore requires an assessment of:
(a) The anticipated civilian damage or injury;

(b) The anticipated military advantage; and
(c) Whether (a) was excessive in relation to (b)
In the present case the anticipated civilian damage or injury was excessive to the military
advantage since Mr. Ken Adams knew that there are villages surrounding Asgard and there is
civilian population residing in these villages. An attack towards the Red Faction had high risk of
the civilian population being harmed and with this anticipation, Mr. Adams went forward with
his anticipated military advantage of killing the Red Faction.
58
59
ICRC Commentary (n 134), [2024].
33
COMPETITION, 2022
5.1 The strike on civilian objects is attributed to Ken Adams.
It is humbly submitted before the honorable court that the civilian deaths caused by Swishblade
3000 can be attributed to Ken Adams through the principle of superior responsibility.
According to Article 28(b) of the Rome statute which reads that a superior shall be criminally
responsible for crimes within the jurisdiction of the Court committed by subordinates under his
or her effective authority and control, because of his or her failure to exercise control properly
over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that
the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of
the superior;
and (iii) The superior failed to take all necessary and reasonable measures within his or her
power to prevent or repress their commission or to submit the matter to the competent authorities
for investigation and prosecution.
- In the case of civilian superiors, it must be shown that the offender either knew
consciously disregarded information which clearly indicated that the subordinates were
committing or about to commit such crimes. It can be understood as the act of
consciously disregarding vital information amounts to recklessness60.
60
Schabas, W., n.d. An introduction to the International Criminal Court.
34
COMPETITION, 2022
- From the Bagilishema61 case, it was further stated in the trial chamber that a superior,
whether military or civilian, may be held liable under the principle of superior
responsibility on the basis of his de facto position of authority
From the above mentioned statute we can infer that whether the effective control
descends from the superior to the subordinate culpable of the crime through intermediary
subordinates is immaterial as a matter of law; instead, what matters is whether the
superior has the material ability to prevent or punish the criminally responsible
subordinate. When compared to the current issues at hand it is clearly visible that from
the telephonic conversation with Raya Habibi and the basic fact about such strikes it was
a clear chance for Ken Adams to understand that there is a chance of the drones attacking
civilian objects.
The separate question of whether – due to proximity or remoteness of control – the superior
indeed possessed effective control is a matter of evidence, not of substantive law. Likewise,
whether the subordinate is found to have participated in the crimes through intermediaries is
immaterial as long as his criminal responsibility is established beyond reasonable doubt.
Collateral damage of civilians still takes place with drone combat, although some have argued
that it greatly reduces the likelihood. Although drones enable advanced tactical surveillance and
up-to- the-minute data, flaws can become apparent.
It is also submitted that as per the Halilovic62 judgment of the ICTY, the term ‘superior
responsibility’ is attributed to imposing liability on the superior for the ‘Principal Crime’ which
in this case is the destruction of civilian objects.
61
(ICTR-95-1A-A), Judgment, 3 July 2002
62
(IT-01-48-A), Judgment, 16 October 2007.
35
COMPETITION, 2022
1. The implication of using swishblade 300 violates International Law

It is humbly submitted before the court that the use of the internationally condemned
swishblade 300 is a violation of International Humanitarian Law.
1.1 As per customary IHL, Mr. Ken Adams had violated IHL.
The IHL states that the methods and means used in military action must be proportionate to the
military objective. Tactics or the excessive use of power or force that causes unnecessary death
or destruction among civilians is prohibited63.
The International Humanitarian Law states that civilians and civilian objects are not to be made
the object of direct attack, though some proportionate collateral damage is considered
unavoidable and therefore not illegal.
Firstly, it is important for the case to understand is a ‘military objective’. Rule 864 defines it as
“In so far as objects are concerned, military objectives are limited to those objects which by their
nature, location, purpose or use make an effective contribution to military actions and whose
partial or total destruction, capture or neutralization, in the circumstances ruling at the time offers
a military advantage”.
In assessing the expected incidental civilian harm when applying the rule of proportionality in
attack, in addition to the direct effects of the attack, its indirect or reverberating effects must also
be considered, insofar as they are reasonably foreseeable in the circumstances. . Attacks that are
assessed as proportionate might in fact be considered disproportionate if all reasonably
foreseeable
63
Rule 14, Customary IHL
64
Customary IHL
36
COMPETITION, 2022
reverberating effects were taken into account,5 as required by the rules on proportionality and
precautions in attack65.
The position under IHL would arguably be that honest and reasonable mistake of fact as to
distinction and proportionality – i.e. those that relate to the identification of the target and to
anticipated civilian losses – could excuse the state. But this will only be the case if all reasonable
precautions were taken, and in particular if all feasible measures were taken to verify that the
target was a military objective66.
In the particular case, although there was a previous attack by the red faction on a territory of
United Provinces of Ramen, the proportionality of counter-attack used by Ken Adams, in terms
of using a set of 5 deadly autonomous drone missile67, whilst not drawing attention to the
precautionary aspect of the rule68, clearly shows that Ken Adams has violated International
Humanitarian Law.
2. By deploying Swishblade 300 Ken Adams has violated Protocol 2 of Convention on

prohibitions or restrictions on the use of certain conventional weapons which may be
deemed to be excessively injurious or to have indiscriminate effects, 1980
According to Article 2(5) of Protocol II of the convention 69 on prohibitions or restrictions on the
use of mines, booby traps and other devices which states that: “Other devices” means manually
emplaced munitions and devices including improvised explosive devices designed to kill, injure,
or damage and which are actuated manually, by remote control or automatically after a lapse of
time.
65
ICRC IHL written paper submission - 10 February 2020 - DFA, Principles and rules of international humanitarian
law applicable to the use of explosive weapons in populated areas,
https://www.dfa.ie/media/dfa/ourrolepolicies/peaceandsecurity/ewipa/ICRC-IHL-Written-Paper-Submission---10-
February-2020.pdf (last visited Jul 23, 2022).
66
67
Moot proposition, Para. 8
68
69
Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be
excessively injurious or to have indiscriminate effects, 1980
37
COMPETITION, 2022
It can be inferred from the definition that the definition refers to devices which are not like mines
but does include remotely activated and time-delay devices70.
2.1 The deployment of Swishblade 300 violates article 3(3) of Protocol II71
Article 3(3)(c) states that: The indiscriminate use of weapons to which this Article applies is
prohibited. Indiscriminate use is any placement of such weapons:
Which may be expected to cause incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive in relation to the concrete
and direct military advantage anticipated.
Here, civilian objects according to the statute are those which are not military objects72.
2.2 There is a violation of article 4 of the Protocol II73

The statute states that: It is prohibited to use weapons to which this Article applies in any city,
town, village or other area containing a similar concentration of civilians in which combat
between ground forces is not taking place or does not appear to be imminent, unless either:
(a) they are placed on or in the close vicinity of a military objective belonging to or under the
control of an adverse party; or
(b) measures are taken to protect civilians from their effects, for example, the posting of warning
signs, the posting of sentries, the issue of warnings or the provision of fences.
70
A. P. V. Rogers, A Commentary on the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-
Traps and Other Devices, 26 MIL. L. & L. WAR REV. 185 (1987).
71
Protocol on prohibitions or restrictions on the use of mines, booby-traps and other devices
72
Rogers, Supra Note 6
73
Protocol on prohibitions or restrictions on the use of mines, booby-traps and other devices
38
COMPETITION, 2022
For the purpose of the argument, imminent can be understood as when the opposition
commander or entity can predict that the combat will occur74
As per the facts, it is noticed that the communication between Raya and Ken Adams indicates
that there are civilian objects close to the target i.e., the villages close to the Asgardian
stronghold of the Red Faction75.
Therefore, by having Ken Adams commission the use of Swishblade on such territories, he will
be violating the Protocol on Prohibitions or restrictions on the use of mines, booby-traps and
other devices.
3. Ken Adams had the mens rea of the attack on civilian objects
3.1 Ken Adams consciously disregarded the possibility of civilian casualties

According to Article 28(b)(i)76, it is stated that the superior either knew, or consciously
disregarded information which clearly indicated, that the subordinates were committing or about
to commit such crimes;
This statute can be interpreted that the superior showed ‘willful blindness’ to certain information
that could have prevented the principal crime from occurring.
There is a clear standard as well for civilian superiors due to their role allowing them to not get
direct and quick information.
The standard has therefore been identified to entail that it is necessary to establish that: (1)
information clearly indicating a significant risk that subordinates were committing or were about
to commit offences existed, (2) this information was available to the superior, and (3) the
superior,
74
Rogers, Supra Note 6
75
Moot Proposition, Annexure A
76
Rome Statute
39
COMPETITION, 2022
while aware that such a category of information existed, declined to refer to the category of
information77.
Now, when we compare the statute and interpretation to the facts provided it is clear that there
was a violation of article 28(b)(i) by Ken Adams when he commissioned the use of Swishblade
300, knowing that there is a slight chance of it attacking civilian objects.
This information when provided by Raya Habibi was turned a blind eye by Ken Adams, stating
that it can be attributed to ‘Collateral Damage’.
Therefore, it is put forth that Ken Adams willfully disregarded crucial information which could
have prevented the principal crime.
3.2 Ken Adams had requisite mens rea regarding the fact that the drone strike could damage
civilian objects
It is humbly submitted before the honorable court that Ken Adams while deploying the
Swishblade 3000 had full knowledge about the proximity of the civilian settlements which could
be affected.
Article 30(2) of the Rome Statute states that For the purposes of this article, 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.
30(3). For the purposes of this article, "knowledge" means awareness that a circumstance exists,
or a consequence will occur in the ordinary course of events.
Here, firstly the ‘material elements’ of a crime refers to the non-mental elements of the definition
of crimes as defined in articles 5-8. The term conduct described in the definition, any
consequences
77
Otto Triffterer and Roberta Arnold, "Article 28", in Otto Triffterer and Kai Ambos (eds.), The Rome Statute of the
40
COMPETITION, 2022
International Criminal Court: A Commentary, 3rd ed., C.H. Beck/Hart/Nomos, Munich/Oxford/Baden-Baden, 2016,
p. 1102 (http://www.legal-tools.org/doc/040751/).
41
COMPETITION, 2022
that may be specified in addition to the conduct, and any circumstances that must exist 78. The
material element here is the attack of civilian objects by Swishblade 300.
Secondly, in a traditional sense, ‘intent’ encompasses not only a ‘volitional’ aspect but also a
‘cognitive’ aspect i.e., where there is knowledge that the consequence will occur or will be
caused79.
Lastly, in terms of understanding ‘awareness that a circumstance exists’ is that the state of mind
where a person greatly suspects the true state of affairs but deliberately avoids steps to ascertain
their validity or deliberately shuts his or her eyes to an obvious means of knowledge. This is
referred to as “willful blindness”
From this we can infer that there is a necessary mental element required regarding the crime in
question or a consequence occurred due to the fact that Ken Adams before the launch of
Swishblade 300 was given adequate information and knowledge regarding the risks as well as
damage that it might cause on civilian objects80.
78
article 8 para. 2 (b) (x), which defines a crime that contains all three types of material elements: conduct
(‘subjecting persons….to physical mutilation or to medical or scientific experiments’); circumstances (‘who are in
the power of an adverse power’) and consequences (‘which cause death to or seriously endanger the health of
such person or persons’).
79
Otto Triffterer & amp; Kai Ambos, Commentary on the Rome statute of the International Criminal Court:
Observers' notes, article by Article (2016).
80
Moot Proposition, Annexure A
42
COMPETITION, 2022
PRAYER
Wherefore in light of the issues raised, arguments advanced, and authorities cited, the Defence
counsel respectfully requests this Court to reverse the impugned decision of the PTC and adjudge
and declare that:
1. The ICC has jurisdiction to prosecute and hear the case against Mr. Ken Adams
2. The case against Mr. Ken Adams is admissible before the ICC under Article 17 of the
Rome Statute
3. There is sufficient evidence and reasonable grounds to believe that Mr. Ken Adams is
criminally responsible for war crimes and crimes against humanity committed in the
territory of Xacuti
4. The use of Swishblade 300 violates international law and that Mr. Ken Adams can be held
criminally liable for its use.
On behalf of the prosecution
COUNSEL FOR THE PROSECUTION
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SVKM’s KIRIT P. MEHTA SCHOOL OF LAW’S 4th

The Pre-Trial Chamber 1

Case before the International Criminal Court:

The Office of the Prosecutor’s Submission in the Pre-Trial

Treaties and Conventions……………………………………………………………….

SUMMARY OF ARGUMENTS ………………………………………………………

Elements Elements of Crimes

ICC International Criminal Court

ICJ International Court of Justice

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the Former Yugoslavia

ICRC The International Committee of the Red Cross

NGO Non-Governmental Organization

NIAC Non-International Armed Conflict

OTP Office of the Prosecutor

PTC Pre-Trial Chamber

Statute Rome Statute of the International Criminal Court

RTP Right to Privacy

UNGA United Nations General Assembly

VCLT Vienna Convention on the Law of Treatie

Treaties and Conventions

1. Elements of Crimes of the International Criminal Court (adopted 9 August 2000) UN

5. Prosecutor v. Bemba Gombo, Charges, 03 March 2009, [ICC-01/05-08-388]

of the Rome Statute.

criminally liable for its use.

1. The crimes that were committed are not of an international character.

3. By deploying Swishblade 300 Ken Adams has violated Protocol 2 of Convention on

5. Ken Adams consciously disregarded the possibility of civilian casualties.

In the following ways:

1. Jurisdiction Ratione Temporis:

3. Jurisdiction Ratione Materiae:

2.1. The Scale of the Crimes-

3. The conduct concerned must be systematic or large-scale

1. The crimes committed are not of an international character.

2. The crimes committed were widespread and systematic

According to the Appeals Chamber in Kunarac27 et al.,

o There must be an attack

2. Large-scale or continuous commission of linked crimes

1. The perpetrator killed one or more persons.

The ICTY in Prosecutor v. Vasiljević, 44

1. The perpetrator killed one or more persons.

1. The perpetrator directed an attack.

Therefore, Mr. Adams satisfies all the elements of Article 8(2)(e)(i).

5. The elements of war crime of intentionally directing an attack against buildings

The application of this test therefore requires an assessment of:

(a) The anticipated civilian damage or injury;

5.1 The strike on civilian objects is attributed to Ken Adams.

1. The implication of using swishblade 300 violates International Law

2. By deploying Swishblade 300 Ken Adams has violated Protocol 2 of Convention on

2.2 There is a violation of article 4 of the Protocol II73

3.1 Ken Adams consciously disregarded the possibility of civilian casualties

On behalf of the prosecution

COUNSEL FOR THE PROSECUTION

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