TC 88 Defendant

12TH AMITY INTERNATIONAL MOOT COURT COMPETITION

MEMORIAL FOR DEFENDANT

TEAM CODE: TC-88

12th AMITY INTERNATIONAL MOOT COURT

COMPETITION, 2022
Before the Trial Chamber,
International Criminal Court
IN THE CASE OF
THE PROSECUTOR
versus
JIM CLIPMAN
FOR THE OFFENCES CHARGED UNDER:

ARTICLE 8 BIS (1), ARTICLE 8(2)(B)(I), ARTICLE 8(2)(B)(II),
ARTICLE 8(2)(B)(IV), ARTICLE 8(2)(B)(IX) OF THE ROME STATUTE
MEMORIAL ON BEHALF OF THE DEFENDANT
0
TABLE OF CONTENTS
1. TABLE OF ABBREVIATIONS …………………………………………………………… 4
2. INDEX OF AUTHORITIES ............................................................................................ 5
3. STATEMENT OF JURISDICTION............................................................................. 10
4. QUESTIONS PRESENTED .......................................................................................... 11
5. STATEMENT OF FACTS............................................................................................. 12
6. SUMMARY OF PLEADINGS ...................................................................................... 14
7. PLEADINGS ................................................................................................................... 16
I. Whether the accused can be held liable for the war crime of aggression under Article
8 bis (1) of the Rome Statute? …………………………………………………………….16
A. The perpetrator planned, prepared, initiated, or executed an act of aggression; is not
satisfied………………………………………………………………………………….16
B. The perpetrator was a person in a position effectively to exercise control over or to direct
the political or military action of the State which committed the act of aggression; is not
satisfied………………………………………………………………………………….17
II. Whether the accused can be held liable for the war crime of intentionally directing
an attack against the civilian population and causing the death of 18 crew members
under Article 8(2)(B)(i) of the Rome Statute?...................................................................18
A. The perpetrator directed an attack; is not satisfied………………………………………18
B. The perpetrator intended the civilian population as such or individual civilians not taking
direct part in hostilities to be the object of the attack; is not satisfied……………………19
C. The perpetrator intended the civilian population as such or individual civilians not taking
direct part in hostilities to be the object of the attack; is not satisfied…………………...20
D. The perpetrator was aware of factual circumstances that established the existence of an
armed conflict; is not satisfied…………………………………………………………..20
III. Whether the accused can be held liable for the war crime of intentionally directing
an attack against a civilian object, MV Sitra under Article 8(2)(B)(ii) of the Rome
Statute?.................................................................................................................................21
A. The conduct was associated with the armed conflict, is not satisfied…………………….21
1
B. The object of the attack was a civilian object, that is, objects that are not military in nature;
is not satisfied. …………………………………………………………………………..22
C. The attack was directed intentionally……………………………………………………23
IV. Whether the accused can be held liable for the war crime of intentionally launching
an attack knowing that such attack will cause incidental loss of life, or damage to MV
Sitra or widespread, long-term, severe damage to natural environment under Article
8(2)(B)(iv) of the Rome Statute?.........................................................................................25
A. The attack was such that it was not excessive in relation to the concrete and direct overall
military advantage anticipated; is not satisfied……………………………………………26
B. The perpetrator did not know nor could have known that the attack would cause excessive
casualties and damage to the natural environment; is not satisfied……………………….27
i. Knowledge of Damage………………………………………………………………..27
ii. Anticipated Advantage………………………………………………………………...28
iii. Knowledge of Excessiveness…………………………………………………………..28
V. Whether the accused can be held liable for the war crime of directing cyber-attack
on civilian objects, hospitals and schools under Article 8 (2)(b)(ix) of the Rome
statute?..................................................................................................................................29
A. The perpetrator directed the attack; is not satisfied………………………………………30
B. The object of the attack was one or more buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals or places where the sick and
wounded are collected, which were not military objectives; is not satisfied……………32
C. The perpetrator intended such building or buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals or places where the sick and
wounded are collected, which were not military objectives, to be the object of the attack;
is not satisfied……………………………………………………………………………32
D. The perpetrator was aware of the factual circumstances that established the existence of
an armed conflict; is not satisfied………………………………………………………...33
2
VI. The arrest of the President, Jim Clipman, is unlawful since it violates the customary
norm of Head of State immunity and contravenes the Geneva Convention………….34
A. The President being the de facto political head and the Commander in Chief of Muona’s
army on the international stage, personal immunity is extended to him………………..34
B. Head of State Immunity is a recognised norm of customary international law which when
ignored violates Article 98 of the Statute……………………………………………….35
PRAYER ……………………………………………………………………………………36
3
TABLE OF ABBREVIATIONS
Abbreviation Term
Art. Article
AP Additional Protocol
Cl. Clause
Ed., Edn. Edition

IHL International Humanitarian Law
ICTR International Criminal Tribunal for
Rwanda
ICTY International Criminal Tribunal for the
former Yugoslavia
ICJ International Court of Justice
ICC International Criminal Court
ICSC Ixanian Cyber Security Centre

ILR International Law Report
MLA Muonese Liberation Army
Rep Report
UN United Nations
UNGA United Nations General Assembly
UNTS United Nations Treaty Series

USV Unmanned Surface Vehicle
U. S United States
v. Versus
¶ Paragraph
4
INDEX OF AUTHORITIES
CASES
1. The Prosecutor v. Ephrem Setako (Judgment and Sentence), Case No. ICTR-04-81-T,
International Criminal Tribunal for Rwanda (ICTR), 25 February 2010………………… 19
2. The Prosecutor v. Ephrem Setako (Appeal Judgement), Case No. ICTR-04-81-A,
International Criminal Tribunal for Rwanda (ICTR), 28 September
2011…………………………………………………………………………………….....19
3. The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07 OA 8,

International Criminal Court (ICC), 25 September 2009…………………………………20
4. The Prosecutor v. Germain Katanga, ICC-01/04-01/-7-717 30 September 2008
…………………………………………………………………………………………... 20
5. Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013…….20
6. Prosecutor v. Naletilić and Martinović ("Tuta and Štela"), "Appeals Judgement", IT-98-
34-A, 3 May 2006 ……………………………………………………………………….. 21
7. Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Appeal
judgment, IT-96-23/1-T 12 June 2002,…………………………………………………....22
8. Prosecutor v. Mitar Vasiljevic (Trial Judgement), IT-98-32-T, International Criminal

Tribunal for the former Yugoslavia (ICTY), 29 November 2002 ………………………..22
9. Prosecutor v. Momčilo Perišić, IT-04-81-A, (ICTY) 28 February 2013………………….24

10. Prosecutor v. Milan Martić, Case No. IT-95-11-T, Trial Chamber Judgment, 12 June
2007………………………………………………………………………………........... 24
11. Prosecutor v. Bemba, ICC PT. Ch., Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-
01/05-01/08-424, 15 June 2009 …………………………………………………………. 24
12. Prosecutor v. Lubanga, ICC T. Ch., Judgment pursuant to Article 74 of the Statute, ICC-
01/04-01/06-2842, 14 March 2012 ……………………………………………………… 24
13. Prosecutor v. Lubanga, ICC A. Ch., Judgment on the Appeal of Mr. Thomas Lubanga Dyilo
against his conviction, ICC-01/04-01/06-A-5, 1 December 2014 ………………………. 24
14. The Prosecutor v. Germain Katanga, ICC-01/04-01/07, July 2021
…………………………………………………………………………………………….24
5
15. Blaskic, IT-95-14-T, Judgement (“Blaskic Trial Judgement”), 3 March 2000, para. 180,
Judicial Supplement No. 13 ………………………………………………………………25
16. Hostage Case, United States v List (Wilhelm) and ors, Trial Judgment, Case No 7,
(1948)…………………………………………………………………………………….. 26
17. Prosecutor v. Stanilav Galic, IT-98-29-A, ICTY, 2006 ………………………………… 27
18. Corfu Channel, United Kingdom v. Albania, Judgement (Merits), ICJ GL No 1, 9 April 1949
…………………………………………………………………………………………….30
19. Kupreskic et al., AC, (IT-95-16-A), 23 October 2001 para 138 …………………………. 31
20. Nicaragua v. United States of America (Merits), 27 June 1986 …………………… …….32
21. Oil Platforms, Iran v United States, Judgment, merits, ICJ GL No 90, 6th November 2003
………………………………………………………….. ………………………………..32
22. Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda),
19 December 2005 ………………………………………………………………………..32
23. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Request for advisory opinion), ICJ GL NO 131, 9 July 2004 …………………………... 32
24. Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-424, Decision

Pursuant to Article 61(7)(a) and (b) of the Rome Statute (June 15, 2009) ……………… 34
25. ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Trial Judgement 21 March 2016 …. 34
26. United States v. Noriega, 117 F.3d 1206 (l 1th Cir. 1997) ………. ……………………….34
27. Democratic Republic of the Congo v Belgium, [2002] ICJ Rep 3 ………………………. 34
BOOKS, REPORTS, JOURNALS
1. Official Records of the Review Conference of the Rome Statute of the International Criminal
Court, Kampala, 31 May -11 June 2010 (International Criminal Court publication, RC/11),
part II……………………………………………………………………………………...16
2. Knut Dörmann, Elements of War Crimes under the Rome Statute of the International
Criminal Court, War Crimes, 2003, p.55 …………………………………………………21
6
3. Arsanjani, M.H., The Rome Statute of the International Criminal court. (1999) 93(1)
American Journal of International Law, 22-43………………………………………...17,19
4. Roger S. Clark, Negotiating Provisions Defining the Crime of Aggression, its Elements and
the Conditions for ICC Exercise of Jurisdiction Over It (2009) 20(4) European Journal of
International Law, 1103–1115…………………………………………………………….17
5. Kress, C., The crime of aggression before the first review of the ICC Statute. (2007) 20(4)
Leiden Journal of International Law,.851-865…………………………………………… 18
6. Robinson D and von Hebel H, “War Crimes in Internal Conflicts: Article 8 of the ICC
Statute” (1999) 2 Yearbook of International Humanitarian Law 193 ……………………..21
7. Rojas DA, “Petroleum and the Humanitarian Law” (2004) 3 International Law: Revista
Colombiana de Derecho Internacional 275………………………………………………..22
8. Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication,
Operations Series, ADFP 37-Interim Edition, 1994, § 527(e) ……………………………22
9. Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication,
Operations Series, ADFP 37 Supplement 1- Interim Edition, 7 March 1994, §951………22
10. Yoram Dinstien, Legitimate Military Objective in Current Jus in Bello, 78 Int'l Law Studies
139, 146 (2002)……………………………………………………………………………23
11. Dinstein Y,War, Aggression and Self-defence, (6th Cambridge University Press 2017),
p.155………………………………………………………………………………………23
12. Albin Eser, ‘Mental Elements: Mistake of Fact and Mistake of Law’ in A Cassese, P Gaeta
and JRWD Jones (eds), The Rome Statute of the International Criminal Court: A
Commentary, vol 1 (OUP 2002) 907 ……………………………………………………..24
13. Sara Porro “Risk and Mental Element: An Analysis of National and International Law on
Core Crimes” (OUP 2004) 177……………………………………………………………24
14. Finnin S, “Mental Elements Under Article 30 of the Rome Statute of the International
Criminal Court: A Comparative Analysis” (2012) 61 International and Comparative Law
Quarterly…………………………………………………………………………………24
15. Clark, R.S. “The Mental Element in International Criminal Law: The Rome Statute of the
International Criminal Court and the Elements of Offences” (2001) 12 Criminal Law Forum
308. ……………………………………………………………………………………….24
16. Stewart JG, The future of the grave breaches regime: segregate, assimilate or abandon?
(2009) 7(4) J Int Crim Justice, 855-877……………………………………………………25
7
17. Kenneth Anderson and Matthew C Waxman, ‘Law and Ethics for Autonomous Weapon
Systems: Why a Ban Won’t Work and How the Laws of War Can’ (Research Paper No
2013-11, American University Washington College of Law, 2013) 22……………………25
18. Office of the Judge Advocate General, ‘The Law of Armed Conflict at the Operational and
Tactical Level’ (1999) 4………………………………………………………………...…26
19. Cassese, International Criminal Law (2003) 14…………………………………………...27
20. Cf. Drumbl, IHR, International Humanitarian Law, and Environmental Security: Can the
International Criminal Court Bridge the Gaps? (2000) 6 ILSA J. INTíL & COMP. L. 305,
319………………………………………………………………………………………...28
21. C. TAPPER (ed) Cross and Tapper on Evidence, 2007, 169 et seq; K. BROUN (ed)
McCormick on Evidence, II 2006, CITED ON Kinsch, Patrick. On The Uncertainties
Surrounding The Standard Of Proof In Proceedings Before International Courts And
Tribunals, INDIVIDUAL RIGHTS AND INTERNATIONAL JUSTICE, Giuffrè Editore,
Milan – 2009………………………………………………………………………………30
22. Laura-Liisa Laving, The Reliability of Open Source Evidence In the International Criminal
Court (MPhil these, University of Lund 2014) 39…………………………………….30,31
23. David Clark and Susan Landau, “Untangling Attribution” (2011) 2 Harvard Security Journal
533………………………………………………………………………………………...31
24. David E. Graham, Cyber Threats and the Law of War, Journal of National Security Law &
Policy, Vol. 4, p. 92……………………………………………………………………….32
25. Rick Lehitnen et Al., Computer Security Basics 81 (2d ed. 2006)………………………..32
26. Paolo Gaeta, "Does President Al Bashir Enjoy Immunity from Arrest?" (2009) 7 Journal of
International Criminal Justice 315 at 320………………………………………………….34
27. France, Gaddafi, Court of Appeal of Paris, judgment of 20 October 2000, and Court of
Cassation, judgment of 13 March 2001, 125, ILR, 490 and 508…………………………...35
COMMENTARIES AND DIGESTS

1. ICRC Commentary, supra note 3 at para. 2022……………………………………………23
2. Waldemar Solf & others, New Rules For Victims Of Armed Conflicts: Commentary on The
Two 1977 Protocols Additional To The Geneva Conventions Of 1949, (1982) 329………23
8
3. Claude Pilloud et al., Article 57—Precuations in Attack, in COMMENTARY ON THE

ADDITIONAL PROTOCOL OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF
12 AUGUST 1949, no. 2209 (Yves Sandoz et al. eds., 1987)……………………………...26
4. Commentary on the Additional Protocols to the Geneva Conventions, International
Committee of the Red Cross (ICRC Study), para.2209……………………………………26
5. Dormann, Elements of War Crimes Under the Rome Statute of the International Criminal
Court: Sources and Commentary 166 (2003)……………………………………………...27
6. Schmitt MN, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations
(2nd edn Cambridge University Press 2017)………………………………………………31
STATUTES, CONVENTIONS AND TREATIES

1. Rome Statute of the International Criminal Court
2. The Charter of the United Nations 1945.
3. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field. Geneva, 12th August, 1949.
4. Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea. Geneva, 12th August, 1949.
5. Geneva Convention (IV) relative to the Protection of Civilian Persons in Times of War
(1949).
6. Protocol Additional to the Geneva Conventions of 12th August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8th June, 1977.
7. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 8th June, 1977.
8. International Covenant on Civil and Political Rights 1966.
9
STATEMENT OF JURISDICTION
The office of the Prosecutor has approached the International Criminal Court through the
Prosecutor who initiated an investigation with respect to such a crime in accordance with
Article 151 as conferred under Article 13(c)2 of the Rome Statute of the International Criminal
Court.
The Defence reserves the right to contest the same and submits that this petition is not
maintainable. The present memorial puts forth the facts and contentions of the case at hand.
1
Rome Statute of the International Criminal Court, art. 15, ¶1, July 17, 1998, 2187 U.N.T.S. 90.
2
Rome Statute of the International Criminal Court, art. 13, ¶c, July 17, 1998, 2187 U.N.T.S. 90.
10
QUESTIONS PRESENTED
I. WHETHER THE ACCUSED CAN BE HELD LIABLE FOR THE WAR CRIME OF AGGRESSION
UNDER ARTICLE 8 BIS (1) OF THE ROME STATUTE?
II. WHETHER THE ACCUSED CAN BE HELD LIABLE FOR THE WAR CRIME OF INTENTIONALLY
DIRECTING AN ATTACK AGAINST THE CIVILIAN POPULATION AND CAUSING THE DEATH OF
18 CREW MEMBERS UNDER ARTICLE 8(2)(B)(I) OF THE ROME STATUTE?
III. WHETHER THE ACCUSED CAN BE HELD LIABLE FOR THE WAR CRIME OF INTENTIONALLY
DIRECTING AN ATTACK AGAINST A CIVILIAN OBJECT, MV SITRA UNDER ARTICLE
8(2)(B)(II ) OF THE ROME STATUTE?
IV. WHETHER THE ACCUSED CAN BE HELD LIABLE FOR THE WAR CRIME OF INTENTIONALLY
LAUNCHING AN ATTACK KNOWING THAT SUCH ATTACK WILL CAUSE INCIDENTAL LOSS OF
LIFE, OR DAMAGE TO MV SITRA OR WIDESPREAD, LONG -TERM, SEVERE DAMAGE TO
NATURAL ENVIRONMENT UNDER ARTICLE 8(2)(B)(IV) OF THE ROME STATUTE?
V. WHETHER THE ACCUSED CAN BE HELD LIABLE FOR THE WAR CRIME OF CYBER-ATTACK
AGAINST BUILDINGS DEDICATED TO RELIGION, EDUCATION , ART, SCIENCE OR CHARITABLE
PURPOSES, HISTORIC MONUMENTS, HOSPITALS AND PLACES WHERE THE SICK AND
WOUNDED ARE COLLECTED UNDER ARTICLE 8(2)(E)(IV) OF THE ROME STATUTE?
VI. WHETHER THE ARREST OF PRESIDENT JIM CLIPMAN WAS LAWFUL?
11
STATEMENT OF FACTS
BACKGROUND:
1. The Republic of Ixania is a country to the south of the continent Nasia. The Ixanian
Constitution describe it as a secular, democratic republic. From being a comparatively
destitute country in 1951, Ixania has become a fast-growing major economy and a hub for
information technology services which accounted for 18% of GDP in 2020. It hosts more
than 600 wildlife sanctuaries and 20 biosphere reserves, 6 of which are a part of the World
Network of Biosphere Reserves; 35 wetlands are registered under the Ramsar Convention.
2. Ixania has tense relations with neighbouring Muona, and has gone to war in 1966 and 1999
respectively. Both wars were fought over the disputed territory of Masenia province located
to the southeast corner of Ixania. Additionally, they are involved in maritime disputes over
maritime zone of Masenia province.
3. Muona is a people’s democratic dictatorship and a one-party state. Its economy is the largest
in the world and has one of the most powerful militaries. It has Ground Force, Navy and Air
Force, and the SSF to improve the ability to fight and projection capabilities in space,
cyberspace and electronic warfare. Jim Clipman elected as Muona's president in early 2013
and later reelected in 2019.
4. Muonese Liberation Army (MLA) infiltrated 129 km inside the contentious Masenia
province in 2019. The disputed Ixania-Muona border was the scene of a standoff between
the two armies in 2017. Muona's close ties with Raksita and its funding of separatist groups
in Northeast Ixania continue to raise concerns. Muona actively engages in a propaganda
campaign against the Ixanian people, particularly in the northeastern part of the country.
THE UNFOLDING OF EVENTS:
• January 2020- Nesiapost, an international news agency reported that a high-profile

secretive meeting was called by the President of Muona, to discuss the strategy to counter
Ixania. The details of the meetings and discussions were however not known.
● February 2020- a huge cyber-attack was carried out against Ixania, which knocked out
more than 7,000 websites, including websites of Ixanian parliament, ministries, defense and
high-tech companies, public service portals and allowed hackers to obtain confidential data.
● March 2020- The attack on part of Ixania's electricity grid left 7,40,000 people in the
Caniga, the capital city of Ixania without power for 60-72 hours.
12
● April 2020- High-speed trains and caniga airport were disrupted after ransomware
encrypted hard drives. There were cancelled flights and a 48-hour ban on banking
transactions. The cyber operations that disrupted hospital computers and life-saving
procedures also had an impact on the healthcare industry. In the months of February, March,
and April, there were reportedly more than 1 lakh covid deaths in Ixania.
• The Ixanian Cyber Security Centre (ICSC) discovered that Muona was "almost certainly"
responsible for the attacks. Several reputable news organizations also claimed that
Muonese hackers were involved in these cyber-attacks. These allegations of cyberwarfare
were denied by Muona and called them as an effort to defame the nation.
• September 2020- Ixania deployed its armed forced contingent and advanced long-range
artillery systems in Masenia Province. Muona also positioned an autonomous unmanned
surface vehicle (USV) 'Ocean hunter' within its maritime zone. Captain Vin Padro was
assigned the full responsibility of monitoring and operating Ocean hunter.
• 11th October 2020- A missile launched by Ocean Hunter hit oil tanker MV Sitra. On 20th
October, it sank having spilt 2,60,000 metric tonnes of crude oil into the Ixanian ocean.
The missile attack and explosion claimed the lives of 18 crew members. The explosion
and oil spill off the coast of Ixania caused extensive environmental damage lasting several
decades. The fishing industry was estimated to have lost $180million as a result of post-
spill fisheries closure. Tourism loss was projected to cost 20 billion through 2020.
• Muona has refuted allegations that it deployed 'ocean hunter' without sufficient testing and
trials. Muona also stated that it has a "right to protect its territorial integrity" and
accordingly acted in self-defence and claimed that the attack on oil tanker MV Sitra was
not intentional but was caused due to 'software error'.
• August 2021- the General Assembly of the United Nations adopted a resolution
denouncing the unprovoked attack on the MV Sitra and the environmental harm done to
Ixania as a result of Ixania's vigorous lobbying.
• 20th October 2021- the ICC Prosecutor informed both Prime Minister Frankman and
President Clipman that they found there to be sufficient evidence to open an investigation.
President Clipman ordered his troops to retreat from the Masenia border.
• 14th March 2022- the ICC issued an arrest warrant against President Clipman. He was
arrested in Dhupan and produced before the Dhupan's Court which subsequently
transferred him to the ICC for trial.
13
SUMMARY OF PLEADINGS
I. WHETHER THE ACCUSED CAN BE HELD LIABLE FOR THE WAR CRIME OF AGGRESSION
UNDER ARTICLE 8 BIS (1) OF THE ROME STATUTE?
The counsel contends that the Respondent is not liable for the war crime of aggression
under Article 8 bis (1) of the Rome Statute since he neither planned, prepared, initiated,
or executed the attacks. Although the defendant was a person to exercise control over
political or military actions of the state, the attack MV Sitra was not a result of such
control since it was a consequence of a software error and therefore had no human
involvement.
II. WHETHER THE ACCUSED CAN BE HELD LIABLE FOR THE WAR CRIME OF INTENTIONALLY
DIRECTING AN ATTACK AGAINST THE CIVILIAN POPULATION AND CAUSING THE DEATH OF
18 CREW MEMBERS UNDER ARTICLE 8(2)(B)(I) OF THE ROME STATUTE?

The defence counsel submits that the defendant is not liable under Article 8(2)(i) of the
Rome Statute. The counsel bases its arguments on the conditions that firstly, the
defendant did not direct the attack; second, the defendant did not intend to make the
civilian population object of the attack; third; the attack did not take place in association
with an international armed conflict; fourth, the defendant was not aware of the factual
circumstances that established the armed conflict.
III. WHETHER THE ACCUSED CAN BE HELD LIABLE FOR THE WAR CRIME OF INTENTIONALLY
DIRECTING AN ATTACK AGAINST A CIVILIAN OBJECT, MV SITRA UNDER ARTICLE
8(2)(B)(II ) OF THE ROME STATUTE?
The defence counsel submits that the defendant is not liable under Article 8(2)(ii) of the
Rome Statute. The counsel bases its arguments on the conditions that firstly, the attack
was not in association with an armed conflict; second, the object of the attack was not a
civilian object; third, the attack was not directed intentionally. Therefore, the counsel
established that there was no mens rea, knowledge or intention in any form thus, the
essential elements constituting this crime stands absolved.
14
IV. WHETHER THE ACCUSED CAN BE HELD LIABLE FOR THE WAR CRIME OF INTENTIONALLY
LAUNCHING AN ATTACK KNOWING THAT SUCH ATTACK WILL CAUSE INCIDENTAL LOSS OF
LIFE, OR DAMAGE TO MV SITRA OR WIDESPREAD, LONG -TERM, SEVERE DAMAGE TO
NATURAL ENVIRONMENT UNDER ARTICLE 8(2)(B)(IV) OF THE ROME STATUTE?
The defence counsel submits that the defendant is not liable under Article 8(2)(iv) of the
Rome Statute. The counsel bases its arguments on the conditions that firstly, the nature
of the attack was not such that it was excessive in relation to the concrete and direct
overall military advantage anticipated; second, the defendant did not know nor could
have known that the attack would cause such excessive casualties and damage to the
civilian object and the natural environment.
V. WHETHER THE ACCUSED CAN BE HELD LIABLE FOR THE WAR CRIME OF CYBER-ATTACK
AGAINST BUILDINGS DEDICATED TO RELIGION, EDUCATION , ART, SCIENCE OR CHARITABLE
PURPOSES, HISTORIC MONUMENTS, HOSPITALS AND PLACES WHERE THE SICK AND
WOUNDED ARE COLLECTED UNDER ARTICLE 8(2)(E)(IV) OF THE ROME STATUTE?
The defence humbly submits that the accused should not be charged under Article
8(2)(b)(ix) of the Rome Statute. The required elements of War crime of attacking
protected objects were not satisfied to constitute it. The cyber-attack against Ixania was
not conducted by the accused and the prosecution does not have any evidence of such.
The accused cannot be held guilty on baseless assumptions.
VI. WHETHER THE ARREST OF PRESIDENT JIM CLIPMAN WAS LAWFUL?
The defence humbly submits that the arrest of the President was unlawful. The counsel
bases its contentions on the conditions that, first, the president being the de facto political
head and the commander in chief of Muona’s army, personal immunity is extended to
him. Further, head of state is a recognized norm under international law and his arrest
violates Article 98 of the statute thereby making it unlawful.
15
PLEADINGS
I. Whether the accused can be held liable for the war crime of aggression under Article
8 bis (1) of the Rome Statute?
1. The defence humbly submits that the elements of the war crime of aggression of planning,
preparation, initiation, or execution, by a person in a position effectively to exercise control
over or to direct the political or military action of a State, of an act of aggression which, by
its character, gravity and scale, constitutes a manifest violation of the Charter of the UN in
Article 8 bis (1) of the Rome Statute.3”
2. The counsel humbly submits that Article 8 bis (1)4 of the Rome Statute comprising elements
of the war crime of intentionally directing attacks against the civilian population are not
satisfied, that is, the perpetrator planned, prepared, initiated or executed an act of aggression
(A); the perpetrator was a person in a position effectively to exercise control over or to direct
the political or military action of the State which committed the act of aggression (B).
A. The perpetrator planned, prepared, initiated, or executed an act of aggression; is not

satisfied.
3. There have been differences between Ixania and Muona for a very long time. Both nations
have gone to war two times: in 1966, and 19995. In 2017, the two armies got engaged in a
standoff at the disputed Ixania-Muona border. Since then, armed standoffs and skirmishes
at multiple locations along the entire Ixanian- Muona border escalated.6 This proves that
there have been clashes between both parties, and there has been no planning and execution
required for it.
4. In the summer 2019, the MLA had infiltrated inside the disputed Masenia Province, in
response to that Ixania had also attacked back. The counsel establishes that because of the
heated disputes these attacks took place. Neither Ixania nor Muona planned, prepares or
executed before the occurrence of the crime.
3 Rome Statute of the International Criminal Court art. 8 bis, July 17, 1998, 2187 U.N.T.S. 90 (entered into force
July 1, 2002), rev. 2010 (emphasis added) [hereinafter Rome Statute].
4 As amended by resolution RC/Res.6; see Official Records of the Review Conference of the Rome Statute of the
International Criminal Court, Kampala, 31 May -11 June 2010 (International Criminal Court publication, RC/11),
part II.
5 Moot Proposition ¶ 5
16
5. In the meeting of Jan 2020, the facts state that a meeting was called by the president of
Muona to discuss the strategy to counter Ixania.7 The agenda of the meeting is to only
discuss strategies as to how to tackle with Ixania during their next attack because last time
the Ixania army had completely pushed back the Muonese Army. Thus, it was a mere
meeting wherein only strategy to counter was discussed. One cannot assume that this was
preparation or planning for a crime of aggression. Thus, it does not satisfy the element of
Article 8 Bis 1.8
6. Similarly, with respect to the attack on MV Sitra solely, there was no planning and
preparation, when Muona had deployed soldiers and ferrous dome. And even the execution
was not performed by the defendant.
7. As a matter of fact, Muona only deployed soldiers and ferrous dome when the Ixanian army
had deployed its armed forced contingent and advanced long-range artillery systems in
Masenia Province. It was just an act of being prepared for what might come. The facts
clearly state that positioning of ‘ferrous dome’ an air defence system designed to intercept
and destroy short-range rockets and artillery shells, along the border. Thus, Muona was just
acting in self-defence and was not preparing or planning specifically for any crime.
8. The facts state that Ocean Hunter can patrol without human guidance, using optical guidance
and radar to avoid hitting obstacles or other watercraft.9 Thus, when the missile was shot
because of a software error, no human was involved, and thus, there was no planning,
initiating or execution.
Thus, none of the aforementioned elements of the crime is satisfied.10
B. The perpetrator was a person11 in a position effectively to exercise control over or to

direct the political or military action of the State which committed the act of
aggression; is not satisfied.
9. The essential clearly states that the perpetrator should be a person in a position effectively
to exercise control over or to direct the political or military action of the State which
committed the act of aggression. In the present case, when the act of aggression took place,
7
Moot Proposition ¶ 10
8 Arsanjani, M.H., The Rome Statute of the International Criminal court. (1999) 93(1) American Journal of
International Law, 22-43.
10 Roger S. Clark, Negotiating Provisions Defining the Crime of Aggression, its Elements and the Conditions for
ICC Exercise of Jurisdiction Over It (2009) 20(4) European Journal of International Law, 1103–1115.
11 With respect to an act of aggression, more than one person may be in a position that meets these criteria.
17
it happened due to a software error.12 The missile was launched due to a software error and
was not fired because of a human. There was no human involved in the crime of aggression.
Thus, it does not satisfy the essential.
10. In the facts, it is clearly stated, that the attack on oil tanker MV Sitra was not intentional
but was caused due to ‘software error’13. Thus, we cannot hold the President liable for a
crime he did not commit. And in the essentials, it clearly states that there should be any
person/persons involvement. Captain Vin Padro did not launch the missile by himself and
therefore, the President, Jim Clipman was not involved in the said attack.
11. In this crime of aggression14, there is no human being involved therefore it does not satisfy
the essential elements of a crime under Article 8 bis 1.
II. Whether the accused can be held liable for the war crime of intentionally directing an
attack against the civilian population and causing the death of 18 crew members under
Article 8(2)(B)(i) of the Rome Statute?
12. The defence submits that the elements of the war crimes of intentionally directing attacks
against the civilian population as such or against individual civilians not taking direct part
in hostilities under article 8(2) (b) (i) of the Statute are not satisfied since the attack against
civilian population is not satisfied.
13. The counsel humbly submits that Article 8(2)(b)(i) of the Rome Statute comprising elements
of the war crime of intentionally directing attacks against the civilian population is not
satisfied that is, the perpetrator did not direct the attack (A); The perpetrator did not intend
the civilian population as such or individual civilians not taking direct part in hostilities to
be the object of the attack (B); The conduct did not take place in the context of and was
associated with an international armed conflict (C); The perpetrator was not aware of factual
circumstances that established the existence of an armed conflict (D).
14 Kress, C., The crime of aggression before the first review of the ICC Statute. (2007) 20(4) Leiden Journal of
International Law,.851-865.
18
A. The perpetrator directed an attack; is not satisfied.

14. The essential clearly states that there should be a direct indication of the attack being
directed to the civilians. The perpetrator must have the intention to cause harm to the
civilians. But according to the facts presented in the case15, it is clearly stated that the launch
of the missile on MV Sitra was not done intentionally, and thus was a software error.
15. In the case of The Prosecutor v. Ephrem Setako16, The Appeals Chamber recalls that it has
dismissed Setako's challenges to the Trial Chamber's finding that he ordered the 11 May
Killings. The Appeals Chamber recalls the Trial Chamber's findings that, on 11 May 1994,
Setako gave instructions to kill nine or 10 Tutsis he had brought in his vehicle to Mukamira
camp; that these Tutsis were killed on the same day near the armoury of the camp; and that
Setako's instructions substantially contributed to the killings. 17
16. In the present case the defendant did not direct the act so the charges against him are invalid.
B. The perpetrator intended the civilian population as such or individual civilians not
taking direct part in hostilities to be the object of the attack; is not satisfied.
17. This essential is very important for us to understand the charges against war crimes. For a
person to be tried for war crimes against civilians one needs to intent to attack the civilian
population.
18. The war crime provided for in article 8(2)(b)(i) of the Statute is the first in the series of war
crimes for which one essential element is that the crime must be committed during the
conduct of hostilities (commonly known as 'conduct of hostilities crimes'). Accordingly, this
crime is applicable only to attacks (acts of violence) directed against individual civilians not
taking direct part in the hostilities, or a civilian population, that has not yet fallen into the
hands of the adverse or hostile party to the conflict to which the perpetrator belongs.18
19. The standard requirement of mens rea in accordance with Article 30 of the Statute, was not
satisfied since the defendant did not intend to make individual civilians not taking part in
the hostilities or civilian population the object of the attack. The presence of dolus directus
of the first degree is not evident.19
15
Moot Proposition ¶ 18
16 The Prosecutor v. Ephrem Setako (Judgment and Sentence), Case No. ICTR-04-81-T, International Criminal
Tribunal for Rwanda (ICTR), 25 February 2010.
17 ICTR, Setako Appeal Judgment, 28 September 2011, para. 258
18 Arsanjani MH, “The Rome Statute of the International Criminal Court” (1999) 93 American Journal of
International Law 22
19
ICC, Katanga and Chui Decision on the confirmation of charges , 30 September 2008, para. 271.
19
20. Additionally, the defendant did not perceive the attack on MV Sitra nor the consequences
to have acted knowingly or wilfully, thereby not satisfying dolus directus of the second
degree.20
21. This essential focuses on the fact that there must be intention without reasonable doubt that
the perpetrator wanted to attack the civilian population. Thus, here the act done by the
defendant does not fall into the ambit of Article 8(2)b(i) as it is clearly stated that the attack
on MV Sitra was not intentional.
C. The conduct took place in the context of and was associated with an international
armed conflict; is not satisfied.
22. According to the Pre-Trial Chamber in Katanga and Chui:21
"The Chamber has defined that a crime has taken place in the context of, or in association
with an armed conflict where 'the alleged crimes were closely related to the hostilities.”
23. It is implied that the armed conflict must play a substantial role in the perpetrator's decision,
in his ability to commit the crime or in the manner in which the conduct was ultimately
committed. However, is not necessary, for the armed conflict to have been regarded as the
ultimate reason for the criminal conduct, nor must the conduct have taken place in the midst
of the battle.22
24. In the present case this is not the situation, the attack on MV Sitra was not in context with
any pre-existing armed conflicts between Ixania and Muona.
Muona had deployed “ocean hunter” just to protect its territorial integrity and had placed it
within its maritime zone.23
25. The missile launch on MV Sitra was not intentional and was caused only due to a software
error on the part of “ocean hunter” and it is clear that the conduct of the defendant was not
in association with the armed conflict.
D. The perpetrator was aware of factual circumstances that established the existence of
an armed conflict; is not satisfied.
26. The Naletilić and Martinović ("Tuta and Štela") Appeals Chamber established:
20
Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 192
21 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07 OA 8, International
Criminal Court (ICC), 25 September 2009.
22 ICC, Katanga and Chui Decision on the confirmation of charges, 30 September 2008, para. 380
20
"The Appeals Chamber concludes that the existence and international character of an armed
conflict are both jurisdictional prerequisites (as established in Tadić) and substantive
elements of crimes pursuant to Article 2 of the Statute24. The fact that something is a
jurisdictional prerequisite does not mean that it does not at the same time constitute an
element of a crime. If certain conduct becomes a crime under the Statute only if it occurs in
the context of an international armed conflict, the existence of such a conflict is not merely
a jurisdictional prerequisite: it is a substantive element of the crime charged. Thus, the
Prosecution's obligation to prove intent also encompasses the accused's knowledge of the
facts pertinent to the internationality of an armed conflict."25
27. The defendant did not have the knowledge that his crimes had a nexus to an international
armed conflict, or at least that he had no knowledge of the factual circumstances.26
28. In the present case, the attack was done due to a software error and thus the defence had no
intent or knowledge that was associated with an international armed conflict.
III. Whether the accused can be held liable for the war crime of intentionally directing an
attack against a civilian object, MV Sitra under Article 8(2)(B)(ii) of the Rome Statute?
29. The defence submits that the elements of the war crime of intentionally directing attacks
against civilian objects under Article 8(2)(b)(ii)27 of the Statute are not satisfied since the
attack on MV Sitra was accidental and there was no intention to attack.
30. The counsel submits that Article 8(2)(b)(ii) of the Rome Statute comprising elements of the
war crime of intentionally directing an attack against a civilian object is not satisfied, that
is, the attack was not associated with the armed conflict (A); the perpetrator did not direct
the attack (B); the object of the attack was military in nature (C); the attack was not directed
intentionally (D);
A. The conduct was associated with the armed conflict, is not satisfied.
24
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, War
Crimes, 2003, p.55
25 ICTY, Prosecutor v. Naletilić and Martinović ("Tuta and Štela"), "Appeals Judgement", IT-98-34-A.
26 Robinson D and von Hebel H, “War Crimes in Internal Conflicts: Article 8 of the ICC Statute” (1999) 2
Yearbook of International Humanitarian Law 193
27
Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90, entered into force July 1, 2002.
21
31. As per the Kunarac Appeals Chamber, "The armed conflict need not have been causal to the
commission of the crime, but the existence of an armed conflict must, at a minimum, have
played a substantial part in the perpetrator's ability to commit the crime, his decision to
commit it, the manner in which it was committed or the purpose for which it was committed.
Hence, if it can be established that the perpetrator acted in furtherance of or under the guise
of the armed conflict, it would be sufficient to conclude that his acts were closely related to
the armed conflict."28
32. In the present case, it is observed that the attack on MV Sitra was directed without any
association with the armed conflict. The attack was independent of any existing conflict
between Ixania and Muona. In furtherance to the deployment of an armed forced contingent
and long-range artillery system by Ixania, Muona positioned the unmanned surface vehicle
‘ocean hunter’ within its maritime zone.29
33. The attack on MV Sitra was caused by the accidental launching of the missile by ‘ocean
hunter.’ Therefore, it is evident that the conduct of the defendant was not in association with
the armed conflict.
B. The object of the attack was a civilian object, that is, objects that are not military in
nature; is not satisfied.
34. It is contended that the object of attack that is MV Sitra was a civilian object that was or
could be used for military action and it hence acquired a military objective character.
35. An object keeps its civilian nature as long as it is kept out of hostilities, thereby losing it
when used for military operations, then ipso facto acquires the character of a military
objective.30
36. Australia’s Defence Force Manual specifies that “civilian aircraft, vessels, vehicles and
buildings which contain combatants, military equipment or supplies” are also military
objectives.31
28
ICTY, Kunarac et al. Appeal judgment, 12 June 2002, para. 58. See also ICTY, Vasiljević Trial Judgment, 29 November 2012,
para. 25.
29
Moot Proposition, ¶13.
30 Rojas DA, “Petroleum and the Humanitarian Law” (2004) 3 International Law: Revista Colombiana de
Derecho Internacional 275.
31 Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP
37-Interim Edition, 1994, § 527(e); see also Law of Armed Conflict, Commanders’ Guide, Australian Defence
Force Publication, Operations Series, ADFP 37 Supplement 1- Interim Edition, 7 March 1994, §951.
22
37. It is contended that ‘nature’ as a factor for military objectives denotes the intrinsic character
of the object. To meet this touchstone, an object must be endowed with ingrained
characteristics that are efficacious in military action.32 The oil tanker owing to its nature and
use in providing and transporting fuel to the military bases constitutes a military objective.
38. The oil tanker can be converted into transporting and storing fuel for military action,33 an
intended future use may be sufficient to turn it into a military objective. 34
39. Further, the prerequisite for effective contribution denotes military action in general and
there need not be any ‘direct connection’ with specific combat operations.35 By virtue of
their effective contribution to military actions, oil tankers are regarded as a military
objective.
C. The attack was directed intentionally
40. It is submitted before the Hon’ble court that the attack on MV Sitra was not intentional and
thereby does not satisfy the essential element in a war crime against a civilian object.
41. An essential condition to be met to commit an offence under Article 8(2)(b)(ii) of the Statute
is that the perpetrator must have intended the civilian object to be the sole object of attack.
42. The ICTY observed that the “attack must have been conducted intentionally in the
knowledge, or when it was impossible not to know, that civilians or civilian property were
being targeted not through military necessity.36
43. It is contended that the default rule of Article 30 of the ICC Statute would not accommodate
any standard of mens rea below the threshold of knowledge of the result in terms of practical
certainty. 37
32 Yoram Dinstien, Legitimate Military Objective in Current Jus in Bello, 78 Int'l Law Studies 139, 146 (2002).
33 Dinstein Y,War, Aggression and Self-defence, (6th Cambridge University Press 2017), p.155.
34 ICRC Commentary, supra note 3 at para. 2022.
35 Waldemar Solf & others, New Rules For Victims Of Armed Conflicts: Commentary on The Two 1977 Protocols
Additional To The Geneva Conventions Of 1949, (1982) 329.

36 Blaškić, para. 180. See also Perišić, para. 320; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Trial Chamber
Judgment, para. 60 (12 June 2007).

37 Prosecutor v. Bemba, ICC PT. Ch., Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the
Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, paras. 359
ff; Prosecutor v. Lubanga, ICC T. Ch., Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14
March 2012, para. 1011; Prosecutor v. Lubanga, ICC A. Ch., Judgment on the Appeal of Mr. Thomas Lubanga
Dyilo against his conviction, ICC-01/04-01/06-A-5, 1 December 2014.
23
44. In the present case, the missile launched by ‘ocean hunter’ hit the oil tanker MV Sitra.38
Ocean Hunter is an autonomous unmanned surface vehicle controlled and driven by a
computer.39 The attack on the oil tanker had no mens rea associated with it since it was a
software error.40
45. Article 30(2)(a) of the ICC statute merely requires that the conduct be accomplished as a
result of the agent’s free determination to act. Furthermore, intent in relation to conduct
would be established unless the action or omission was performed during unconsciousness,
a state of automatism or otherwise involuntary.41 In furtherance, this article would impose
an additional element of conscious will to engage in the conduct, or awareness to engage in
it. This is to say, the agent, that is, Captain Vin Padro would be required to have known the
factual circumstances qualifying the action or omission as relevant to the criminal law.42
46. The present case does not satisfy the pre-requisites of Article 30(2)(A) ICC statute that
proves the intention behind the said attack since the attack was a result of a software error
thereby showing no intention on the part of the agent.43 Furthermore, Captain Vin Padro
who was assigned the full responsibility of monitoring and operating Ocean Hunter had no
motive and was under a mistake of fact as to the accuracy of the software algorithm to launch
the missile.44
47. As far as mens rea is concerned it is observed that “such an attack must have been conducted
intentionally in the knowledge, or when it was impossible to know, that civilians or civilian
property were being targeted not through military necessity.”45
38 Moot Proposition, ¶ 14.

39 Moot Proposition, ¶13.
40 Moot Proposition, ¶18.
41 Albin Eser, ‘Mental Elements: Mistake of Fact and Mistake of Law’ in A Cassese, P Gaeta and JRWD Jones
(eds), The Rome Statute of the International Criminal Court: A Commentary, vol 1 (OUP 2002) 907; Sara Porro
“Risk and Mental Element: An Analysis of National and International Law on Core Crimes” (OUP 2004) 177.
42 Finnin S, “Mental Elements Under Article 30 of the Rome Statute of the International Criminal Court: A
Comparative Analysis” (2012) 61 International and Comparative Law Quarterly.

43 ICC Trial Chamber in Katanga confirmed that dolus eventualis is excluded from art 30: Katanga (n 33) [775].
44 Clark, R.S. “The Mental Element in International Criminal Law: The Rome Statute of the International
Criminal Court and the Elements of Offences” (2001) 12 Criminal Law Forum 308.
45 Blaskic, IT-95-14-T, Judgement (“Blaskic Trial Judgement”), 3 March 2000, para. 180, Judicial Supplement
No. 13.
24
48. An unintentional error in the USV’s algorithmic programming that causes it to engage a
target indiscriminately will not necessarily result in a specific outcome in response to a set
circumstance.46
49. At the time the lawful attack occurred in this case, there was no basis for finding or showing
the intention behind the attack47 either by the Captain or any other superior or commander
who ordered such an attack.
50. Therefore, the absence of mens rea, intention and knowledge in any form proves that the
defendant is not liable for the attack on the civilian object MV Sitra.
IV. Whether the accused can be held liable for the war crime of intentionally launching an
attack knowing that such attack will cause incidental loss of life, or damage to MV
Sitra or widespread, long-term, severe damage to natural environment under Article
8(2)(B)(iv) of the Rome Statute?
51. Article 8(2)(b)(iv) criminalizes “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.”
52. The counsel submits that the defendant is not liable for the attack on MV Sitra that
consequently resulted in oil pollution and damage to the natural environment. Therefore,
the attack does not satisfy the elements, that is, the attack was such that it was not excessive
in relation to the concrete and direct overall military advantage anticipated (A); the
perpetrator did not know nor could have known that the attack would cause excessive
casualties and damage to the natural environment (B); needed for the application of Article
8(2)(b)(iv).
46 Stewart JG, The future of the grave breaches regime: segregate, assimilate or abandon? (2009) 7(4) J Int
Crim Justice, 855-877.
47 Kenneth Anderson and Matthew C Waxman, ‘Law and Ethics for Autonomous Weapon Systems: Why a Ban
Won’t Work and How the Laws of War Can’ (Research Paper No 2013-11, American University Washington
College of Law, 2013) 22.
25
A. The attack was such that it was not excessive in relation to the concrete and direct
overall military advantage anticipated; is not satisfied.
53. The expression 'concrete and direct overall military advantage'48 refers to a military
advantage that is foreseeable by the accused at the relevant time. Such advantage may or
may not be temporally or geographically related to the object of the attack.
54. International war crimes court in the Hostage case declared that there must be some
'reasonable connection' between the destruction of the property and the overcoming of the
enemy forces,49 and the advantage concerned should be substantial and relatively close and
the long-term advantages would be disregarded.50
55. In this case, the military advantage is not established since the objective of the armed
conflict was to gain control over the Masenia Province and no such advantage was availed
in this regard.
56. In addition, the aftermath of the attack on oil tanker MV Sitra resulted in civilian casualties
and damage to the natural environment which does not constitute direct or concrete military
advantage owing to their long-term nature.
57. Relying on footnote 37 of the elements of crime requires a value judgement based on
requisite information available whether the attack is excessive in relation to the concrete
direct overall military advantage. It is further enunciated in the Canadian Military Manual
that an attack on a legitimate target may cause civilian casualties or damage to civilian
objects and such damage doesn’t amount to unlawful attack. 51
58. Therefore, the attack on MV Sitra was not excessive in relation to the concrete direct and
overall military advantage gained.
48
Additional Protocol I (API), Art 51(5) (b).
49
Hostage Case, United States v List (Wilhelm) and ors, Trial Judgment, Case No 7, (1948), at 1254
50
Claude Pilloud et al., Article 57—Precuations in Attack, in COMMENTARY ON THE ADDITIONAL
PROTOCOL OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, no. 2209 (Yves
Sandoz et al. eds., 1987); Commentary on the Additional Protocols to the Geneva Conventions, International
Committee of the Red Cross (ICRC Study), para.2209.
51
Office of the Judge Advocate General, ‘The Law of Armed Conflict at the Operational and Tactical Level’
(1999) 4.
26
B. The perpetrator did not know nor could have known that the attack would cause
excessive casualties and damage to the natural environment; is not satisfied.
59. Knowledge of the circumstances requires that the perpetrator assess the possible casualties
based on requisite information which enables him to know the excessive damages as a
consequence of the attacks.52
60. The perpetrator violates Article 8(2)(b)(iv) only if the perpetrator knew that the attack would
cause incidental widespread, long-term, and severe damage to the natural environment and
that such damage would be of such an extent as to be clearly excessive in relation to the
53
concrete and direct overall military advantage anticipated. This implies that the
perpetrator who launches an attack that is objectively disproportionate will still only be
criminally responsible under Article 8(2)(b)(iv) of the statute if he
i. Knew in advance that the attack would cause “widespread, long-term and severe”
environmental damage;
ii. Subjectively foresaw military advantage to the attack even if it is minute
iii. Consciously concluded that, as a result, the attack would be “clearly excessive.”54
i. Knowledge of Damage
61. Article 8(2)(b)(iv) requires that the perpetrator shall be required to have the knowledge that
the attack will result in damages that are ‘widespread, long-term and severe’ to the
environment.
62. In the present case, it is observed that neither the captain of Ocean Hunter who was assigned
the full responsibility of monitoring and operating the vessel nor the defender had the
knowledge that the missile would misfire and hit the oil tanker MV Sitra, in turn, resulting
in disastrous consequences for the environment.
63. The absence of the key aspect of knowledge in this context absolves the liability of the
defender for the attack and the subsequent environmental damages.
52
Prosecutor. v Galic, para.58.
53
DORMANN, ELEMENTS OF WAR CRIMES UNDER THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT: SOURCES AND COMMENTARY 166 (2003) (suggesting that the
Article is based on Protocol I).
54
CASSESE, INTERNATIONAL CRIMINAL LAW (2003) 14.
27
ii. Anticipated Advantage

64. Article 8(2)(b)(iv) requires that the excessiveness of damage to the nonhuman environment
be determined “in relation to the concrete and direct overall military advantage anticipated”
by the perpetrator. The elements limit the anticipated military advantage not to one that was
“reasonably foreseeable,” but to one that was “foreseeable by the perpetrator at the relevant
time,”55 thereby the perpetrator’s claimed advantage should be evident not its
reasonableness.
65. In the Nuremberg Military Tribunal’s acquittal of General Lothar Rendulic, the NMT
concluded that the scorched earth policy of General Rendulic employed in Norway to halt
the advance of Russian troops did not constitute wanton destruction of property because the
General honesty- though unreasonably- believed that policy necessary in light of the
military situation as he perceived it at the time.56
66. In the present case, it was highly unlikely for the perpetrator to have foreseen the military
advantage at the time of attack since the attack was due to the misfire of the missile.
Therefore, at the time of the attack, the defendant could not have possibly foreseen any kind
of military advantage that he would have gained.
67. The military advantage is not simply required but as per the circumstances present in a given
moment, a defined military advantage must be present. The attack on the oil tanker does not
provide a defined military advantage for they do not contribute to weakening the opponent.
Given the context of the attack, there was no perceived military advantage. Thus, the
consequences of the oil spill do not amount to military advantage.
iii. Knowledge of Excessiveness
68. To constitute a criminally disproportionate attack under Article 8(2)(b)(iv) it is not sufficient
for the perpetrator to have knowledge that the attack would cause “widespread, long-term,
and severe damage” to the nonhuman environment and anticipated that it would lead to
significant military advantage but the perpetrator must have consciously concluded in the
light of those two facts that launching the attack would be ‘clearly excessive.’
55
Cf. Drumbl, IHR, International Humanitarian Law, and Environmental Security: Can the International
Criminal Court Bridge the Gaps? (2000) 6 ILSA J. INTíL & COMP. L. 305, 319.
56
The Elements make use of the latter construction in other war crimes. See, e.g., Elements of Crimes, art.
8(2)(b)(xxvi).
28
69. In Prosecutor v. Galic, the ICTY Trial Chamber indicated that “in determining whether an
attack was proportionate it is necessary to examine whether a reasonably well-informed
person in the circumstances of the actual perpetrator, making reasonable use of the
information available to him or her, could have expected excessive civilian casualties to
result from the attack.”57
70. This requirement is sui generis in the elements of this crime wherein it states that “with
respect to mental elements associated with elements involving value judgment… it is not
necessary that the perpetrator personally completed a particular value judgment, unless
otherwise indicated.” In Article 8(2)(b)(iv), it is otherwise indicated that as opposed to the
general rule set forth under Article 4… this knowledge element requires that the perpetrator
make the value judgement as described therein.58
71. Therefore, considering the fact that the missile launched by ocean hunter was unintentional
and in the absence of knowledge of the damage, its excessiveness and any kind of military
advantage, the criminal liability of the defender under Article 8(2)(b)(iv) of the Statute is
absolved.
V. Whether the accused can be held liable for the war crime of directing cyber-attack on
civilian objects, hospitals and schools under Article 8 (2)(b)(ix) of the Rome statute?
72. The defence submits that the elements of War crime of 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 in Article 8(2)(b)(ix) of the Rome Statute are not satisfied, that
is, the perpetrator did not direct the attack (A); The object of the attack was not one or more
buildings dedicated to religion, education, art, science or charitable purposes, historic
monuments, hospitals or places where the sick and wounded are collected, which were not
military objectives (B); The perpetrator did not intend such building or buildings dedicated
to religion, education, art, science or charitable purposes, historic monuments, hospitals or
places where the sick and wounded are collected, which were not military objectives, to be
57
Galić Trial Judgment, para. 58.
58
Elements of Crimes, art. 8(2)(b)(iv), n. 37.
29
the object of the attack (C); The perpetrator was not aware of the factual circumstances that
established the existence of an armed conflict (D).
A. The perpetrator directed the attack; is not satisfied.
73. The cyber-attacks against Ixania cannot be attributed to Muona since the standard of proof
to be used must be evidence beyond a reasonable doubt.
74. In light of the actori incumbit probatio principle, which has consistently been upheld by this
Court, the State of Ixania bears the burden of proof to substantiate its claims because it is
attempting to establish a violation of international law committed by Muona. Since truth
and justice are the foundation of international law, any assertion that the parties have not
agreed to must be supported by sufficient evidence before the court.
75. International law has made it absolutely clear that when a serious claim is made against a
state, the evidence must be totally conclusive.59 This makes it apparent that the standard of
proof to be applied is the standard of evidence beyond a reasonable doubt, similar to what
would occur in criminal cases in most domestic and international jurisdictions, at least in
cases of grave claims, like the case at hand.60
76. Ixania failed to provide sufficient conclusive evidence linking the alleged cyber-attacks to
Muona.
77. Any piece of evidence's admissibility in a foreign court will typically depend on its
probative value.61 The source from which the parties obtain the information must be
considered as part of the process of determining this probative value because it is crucial to
assess the independence and impartiality of the source.62 While the sources of the evidence
are considered in the initial reliability assessment, the credibility assessment focuses on the
information provided by the source and determines whether or not it should be believed.
59
ICJ, 9.4.1949, United Kingdom v Albania, ICJ Rep 1949, 4, 17-18
60
C. TAPPER (ed) Cross and Tapper on Evidence, 2007, 169 et seq; K. BROUN (ed) McCormick on Evidence,
II 2006, CITED ON Kinsch, Patrick. On The Uncertainties Surrounding The Standard Of Proof In Proceedings
Before International Courts And Tribunals, INDIVIDUAL RIGHTS AND INTERNATIONAL JUSTICE,
Giuffrè Editore, Milan - 2009
61
Rome Statue, art, 69(4)
62
Laura-Liisa Laving, The Reliability of Open Source Evidence In the International Criminal Court (MPhil
these, University of Lund 2014) 29
30
78. The Court must evaluate the probative value of the evidence Ixania presented, which, for
this specific claim, appears to consist of a report produced by the Ixanian Cyber Security
Centre (ICSC) in light of this standard. Despite the fact that this institution has been referred
to as "a well-known research-intensive academic institution," the fact that it is Ixanian in
origin and the defendant's absence from the examinations raise concerns about whether the
impartiality of the evidence, which is necessary for it to have any probative value, will be
maintained.
79. Even if the Court were to believe this source, the fact that it can be trusted as a source of
information does not necessarily imply that the data it contains is trustworthy.63 In fact,
reputable sources can make errors; for instance, "an NGO that has consistently provided
reliable information in prior reports may still make errors in its preparation and research."64
80. This is crucial when assessing this specific alleged action because cyber attackers are
frequently very careful to hide their tracks in order to blame an innocent person,
organization, or government. They do this by using sophisticated deception techniques that
can trick even the most reputable institutions.
81. This practice, known as "spoofing," entails commandeering one computer and using code
to turn it into a platform for attacking a second computer while "spoofing" other IP addresses
to make the message that was originally sent appear to have come from a different
machine.65
82. The Tallinn Manual's Rule 7 stated in the same vein that "simply launching or otherwise
originating from governmental cyber infrastructure is not sufficient evidence for attributing
the operation to that State."66
83. “Cyberwarfare” is, more narrowly, the conduct of a cyber operation by military means in
order to achieve military objectives. Means of cyberwarfare “are cyber weapons and their
associated cyber systems.67
84. The source of the attack was a non-state actor or a ‘hacktivist.’ Acts of aggression by a non-
state actor cannot have any military objectives nor can their intentions be linked with the
military of Muona.
63
Kupreskic et al., AC, (IT-95-16-A), 23 October 2001 para 138
64
Laura-Liisa Laving, The Reliability of Open Source Evidence In the International Criminal Court (MPhil these,
University of Lund 2014) 39.
65
David Clark and Susan Landau, “Untangling Attribution” (2011) 2 Harvard Security Journal 533
66
Tallinn Manual 2.0 rule 7.
67
Ibid.
31
85. From the above contentions, the counsel would like to bring to notice that Muona had no
part in the planning, preparation, initiation or execution of the said attack, neither does the
state of Ixania have evidence of such. Thus, the charges are invalid.
B. The object of the attack was one or more buildings dedicated to religion, education,
art, science or charitable purposes, historic monuments, hospitals or places where the
sick and wounded are collected, which were not military objectives; is not satisfied.
86. As the ICJ said in the Nicaragua case: ‘The prohibition of armed attacks may apply to the
sending by a state of armed bands to the territory of another state, if such an operation,
because of its scale and effects would have been classified as an armed attack rather than a
mere frontier incident had it been carried out by regular armed forces.’68
87. The ICJ made similar assessments of the ‘scale and effects’ of violent action in the Oil
Platforms69 case, the Wall Advisory Opinion70, and the DRC v Uganda case71. The Stuxnet
attack while unlawful was not the equivalent of an armed attack.
88. Moreover, attribution has not been affirmed at the international evidentiary standard in any
of the three cases. State practice indicates that the case for attribution would have to be made
with clear and convincing evidence. The defence would like to highlight that Ixania has no
evidence against Muona and is defaming the nation by baseless assumptions.
89. “Given the anonymity of the technology involved, attribution of a cyber-attack to a specific
state may be very difficult. While a victim state might ultimately succeed in tracing a cyber-
attack to a specific server in another state, this can be an exceptionally time-consuming
process, and even then, it may be impossible to definitively identify the entity or individual
directing the attack. For example, the ‘attacker’ might well have hijacked innocent systems
and used these as ‘zombies’ in conducting attacks.”72
68
Case concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States
of America) (Merits), 27 June 1986, para 195.
69 Case Concerning Oil Platforms (Iran v. United States of America), 6 November 2003
70 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Request for advisory
opinion), 9 July 2004

71 Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), 19 December 2005
72 David E. Graham, Cyber Threats and the Law of War, Journal of National Security Law & Policy, Vol. 4, p.
92; Rick Lehitnen et Al., Computer Security Basics 81 (2d ed. 2006)
32
90. Hence, the counsel concludes that the defendant is not liable as the prosecution has no clear
or convincing evidence that Muoana actually perpetuated these attacks in the very first
place.
C. The perpetrator intended such building or buildings dedicated to religion, education,

art, science or charitable purposes, historic monuments, hospitals or places where the
sick and wounded are collected, which were not military objectives, to be the object of
the attack; is not satisfied.
76. It is contended that any standard of mens rea below the bar of knowledge of the outcome in
terms of practical certainty would not be permitted by Article 30 of the ICC Statute's default
rule.
77. The ICC statute's Article 30(2)(a) only demands that the conduct be carried out as a result
of the agent's free decision to act. According to this article, engaging in the conduct would
also require conscious will or awareness.
78. This means that in order to qualify the action or omission as relevant under criminal law,
the agent would have needed to be aware of the relevant factual circumstances.
79. Therefore, the defence submits that Muoana had no intention to attack building or buildings
dedicated to religion, education, art, science or charitable purposes, historic monuments,
hospitals or places where the sick and wounded are collected, which were not military
objectives, as it was not aware of the happening of the event.
D. The perpetrator was aware of the factual circumstances that established the existence
of an armed conflict; is not satisfied.
80. The counsel states that the cyber-attack carried out against Ixania in February 2020 was not
intentional as Muona was not aware of the factual circumstances.
81. The perpetrator must be aware of factual circumstances that established the existence of an
armed conflict. As noted by ICC Trial Chamber in The Prosecutor v. Jean-Pierre Bemba
Gombo73:
82. "In this respect, the Introduction to Article 8 of the Elements of Crimes provides the
following clarification: (a) there is no requirement for a legal evaluation by the perpetrator
73
Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-424, Decision Pursuant to Article
61(7)(a) and (b) of the Rome Statute (June 15, 2009).
33
as to the existence of an armed conflict or its character as international or non-international;

(b) in that context there is no requirement for awareness by the perpetrator of the facts that
established the character of the conflict as international or non-international; (c) there 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".
83. As in the case of the contextual elements of crimes against humanity, the relevant awareness
for these purposes is that of the perpetrators of the crimes." 74
84. The defence would like to bring to notice that President Jim clipman had no knowledge of
the existence of the upcoming cyber-attack. Hence, the elements of Article 8(2)(b)(ix) of
the Rome Statute are not satisfied. The charges against the defendant are invalid.
VI. The arrest of the President, Jim Clipman, is unlawful since it violates the customary
norm of Head of State immunity and contravenes the Geneva Convention.
85. The defence submits that Mr Jim Clipman, President of Muona was arrested unlawfully
since he is entitled to immunity under the Head of State immunity norms provisioned under
the customary laws.
86. Customary international law has held that the Head of the State is not subject to the
jurisdiction of foreign courts.75 This principle was reaffirmed by the Arrest Warrant case76
and the rationale behind this norm is to protect the sovereignty and respect among nations,
and also to grant freedom to the head of state to act without any fear of repercussions.77
A. The President being the de facto political head and the Commander in Chief of
Muona’s army on the international stage, personal immunity is extended to him
87. Jim Clipman, was re-elected as the President of Muona in 201978, thereby making him the
Head of the State since it is a one-party socialist state led by Muonese Communist Party.79
74 ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Trial Judgement 21 March 2016, para. 146-147.
75 United States v. Noriega, 746 F. Supp. 1506, 1519 (S.D. Fla. 1990) affd, 117 F.3d 1206 (l 1th Cir. 1997); In re
Grand Jury Proceedings, Doc No. 700, 817 F.2d 1108, 1110 (4th Cir. 1987).
76 Case Concerning the Arrest Warrant of I April 2000 (Democratic Republic of the Congo v Belgium), [2002]
ICJ Rep 3.
77 Paolo Gaeta, "Does President Al Bashir Enjoy Immunity from Arrest?" (2009) 7 Journal of International
Criminal Justice 315 at 320.

34
The President is also the Commander in Chief of the navy and he ordered the deployment
of soldiers along the border, ordered the positioning of air defence systems and the
unmanned Surface hunter ‘Ocean Hunter.’80 Therefore, he is validly entitled to Head of
State immunity.
B. Head of State Immunity is a recognised norm of customary international law which

when ignored violates Article 98 of the Statute.
91. Article 27 and Article 98 outline the Head of State Immunity provision before the ICC.81
Article 27 states that neither the immunity of a Head of State nor the official position of a
suspected international criminal will prevent the ICC from exercising its jurisdiction.82
Nevertheless, this provision is read in conjugation with Article 98, which states that
obligations relating to immunities arising either from customary international law or treaties
may conflict with the ICC request for the surrender of a specific person.83
92. Under the Customary International Law, the head of state, that is, President Jim Clipman
enjoys ‘rationae personae’ immunity i.e absolute personal immunity for every action taken
while in office.
93. Further, the ICTY held that ‘although sovereign immunity was meant to apply to relations
between states inter se, it must and had been respected by international organisations and
international courts. 84
94. The personal immunities of a President bar Dhupan to arrest Mr Jim Clipman even over
matters relating to war crimes.85 Hence, the President cannot be arrested or detained in
Dhupan.
95. Consequently, the arrest of Mr Jim Clipman violated the provisions of Head of State
Immunity under the Rome Statute.

81 Rome Statute, supra note 52, arts. 27, 98.
82 Id. art 27.
83 An Introduction to the ICC, supra note 56, at 79.
84 Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, T.C. Judgement, ¶ 206, (I.C.T.Y. 3 Mar. 2000).
85 France, Gaddafi, Court of Appeal of Paris, judgment of 20 October 2000, and Court of Cassation, judgment of
13 March 2001, ILR, vol. 125, pp. 490 and 508.
35
PRAYER
Wherefore, it is most humbly pleaded and implored before the International Crime
Court, in light of the facts given, reasons advanced, and authority cited, that it may be
graciously pleased to adjudge and declare that:
I. The defendant is not guilty of committing the war crime of aggression under Article 8 bis
(1) of the Rome Statute.
II. The defendant is not guilty of committing the war crime of attacking civilians by causing
the death of 18 crew members under Article 8(2)(b)(i) of the Rome Statute.
III. The defendant is not guilty of committing the war crime of directing an attack against the
oil tanker MV Sitra under Article 8(2)(b)(ii) of the Rome Statute.
IV. The defendant is not guilty of committing the war crime of directing an attack on the oil
tanker MV Sitra and causing oil pollution and damage to the natural environment under
Article 8(2)(b)(iv) of the Rome Statute.
V. The defendant is not guilty of committing the war crime of cyber-attack on civilian
objects, hospitals, and schools under Article 8(2)(b)(ix) of the Rome Statute.
And to pass any order that the Court may deem fit in the favour of THE DEFENDANT to meet
the ends of equity, justice, & good conscience.
For this act of Kindness, the Defence shall remain duty-bound forever.
Place: Hague, Netherlands S/d-
Dated: 25/10/2022 COUNSEL for the DEFENDANT
36

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12TH AMITY INTERNATIONAL MOOT COURT COMPETITION

MEMORIAL FOR DEFENDANT

TEAM CODE: TC-88

12th AMITY INTERNATIONAL MOOT COURT

Before the Trial Chamber,

International Criminal Court

FOR THE OFFENCES CHARGED UNDER:

MEMORIAL ON BEHALF OF THE DEFENDANT

MEMORIAL FOR DEFENDANT

1. TABLE OF ABBREVIATIONS …………………………………………………………… 4

2. INDEX OF AUTHORITIES ............................................................................................ 5

4. QUESTIONS PRESENTED .......................................................................................... 11

6. SUMMARY OF PLEADINGS ...................................................................................... 14

MEMORIAL FOR DEFENDANT

C. The attack was directed intentionally……………………………………………………23

ii. Anticipated Advantage………………………………………………………………...28

iii. Knowledge of Excessiveness…………………………………………………………..28

MEMORIAL FOR DEFENDANT

MEMORIAL FOR DEFENDANT

Ed., Edn. Edition

ICSC Ixanian Cyber Security Centre

UNTS United Nations Treaty Series

MEMORIAL FOR DEFENDANT

3. The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07 OA 8,

8. Prosecutor v. Mitar Vasiljevic (Trial Judgement), IT-98-32-T, International Criminal

9. Prosecutor v. Momčilo Perišić, IT-04-81-A, (ICTY) 28 February 2013………………….24

MEMORIAL FOR DEFENDANT

17. Prosecutor v. Stanilav Galic, IT-98-29-A, ICTY, 2006 ………………………………… 27

24. Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-424, Decision

BOOKS, REPORTS, JOURNALS

MEMORIAL FOR DEFENDANT

MEMORIAL FOR DEFENDANT

COMMENTARIES AND DIGESTS

MEMORIAL FOR DEFENDANT

3. Claude Pilloud et al., Article 57—Precuations in Attack, in COMMENTARY ON THE

STATUTES, CONVENTIONS AND TREATIES

MEMORIAL FOR DEFENDANT

MEMORIAL FOR DEFENDANT

UNDER ARTICLE 8 BIS (1) OF THE ROME STATUTE?

18 CREW MEMBERS UNDER ARTICLE 8(2)(B)(I) OF THE ROME STATUTE?

LIFE, OR DAMAGE TO MV SITRA OR WIDESPREAD, LONG -TERM, SEVERE DAMAGE TO

NATURAL ENVIRONMENT UNDER ARTICLE 8(2)(B)(IV) OF THE ROME STATUTE?

WOUNDED ARE COLLECTED UNDER ARTICLE 8(2)(E)(IV) OF THE ROME STATUTE?

VI. WHETHER THE ARREST OF PRESIDENT JIM CLIPMAN WAS LAWFUL?

MEMORIAL FOR DEFENDANT

• January 2020- Nesiapost, an international news agency reported that a high-profile

MEMORIAL FOR DEFENDANT

MEMORIAL FOR DEFENDANT

UNDER ARTICLE 8 BIS (1) OF THE ROME STATUTE?

18 CREW MEMBERS UNDER ARTICLE 8(2)(B)(I) OF THE ROME STATUTE?

MEMORIAL FOR DEFENDANT

LIFE, OR DAMAGE TO MV SITRA OR WIDESPREAD, LONG -TERM, SEVERE DAMAGE TO

NATURAL ENVIRONMENT UNDER ARTICLE 8(2)(B)(IV) OF THE ROME STATUTE?

WOUNDED ARE COLLECTED UNDER ARTICLE 8(2)(E)(IV) OF THE ROME STATUTE?

VI. WHETHER THE ARREST OF PRESIDENT JIM CLIPMAN WAS LAWFUL?

MEMORIAL FOR DEFENDANT

A. The perpetrator planned, prepared, initiated, or executed an act of aggression; is not

MEMORIAL FOR DEFENDANT

B. The perpetrator was a person11 in a position effectively to exercise control over or to