International Criminal Court Report Study

Instructions 

1. Proceedings: The hearing takes place in the jurisdiction of the International  Criminal Court (‘ICC’) at the “confirmation of charges” stage pursuant to Article 61  of the 1998 Rome Statute of the ICC (‘Rome Statute’). At this stage, the Prosecutor  must “support each charge with sufficient evidence to establish substantial grounds to  believe that the person committed the crime charged.” The Accused may “object to  the charges” and “challenge the evidence presented by the Prosecutor”. 
2. Facts and evidence: The case is entirely fictional. The Statement of Agreed Facts  includes all the facts supported by evidence that have been transmitted to the Defence,  as well as facts and evidence presented by the Defence. Teams should confine  themselves to the facts supplied. Neither the Prosecutor nor the Defence may  introduce new evidence or facts at the hearing (Article 61(6)(c) of the Rome Statute is  not applicable). Teams may nonetheless draw reasonable inferences from the facts.  They may also question the credibility or weight of the evidence. 
3. Procedure: The problem is not intended to raise questions of procedure other than  the rights of the accused pursuant to Articles 66 and 67 of the Rome Statute. Any  other procedural questions should be ignored.  
4. Jurisdiction and admissibility: Counsel may, if relevant, address issues of conflict  classification or gravity. Any other issues of jurisdiction and admissibility should be  ignored. 
5. Applicable law: In accordance with Article 21 of the Rome Statute: 
   1. The Court shall apply: 
      •  In the first place, this Statute, Elements of Crimes and its Rules of  Procedure and Evidence; 
      •  In the second place, where appropriate, applicable treaties and the  principles and rules of international law, including the established  principles of the international law of armed conflict; 
      •  Failing that, general principles of law derived by the Court from  national laws of legal systems of the world including, as appropriate, the  national laws of States that would normally exercise jurisdiction over the  crime, provided that those principles are not inconsistent with this Statute  and with international law and internationally recognized norms and  standards. 
   2. The Court may apply principles and rules of law as interpreted in its  previous decisions. 
6. Teams are encouraged to look at the case law of international and national courts. If  teams rely on decisions of national courts, these should be leading decisions and teams should expect to be asked for copies of the headnote and the portion of the  transcript or judgment referred to in their argument. 

7. Participation to treaties: at all material times, the treaties listed in Annex I were in  force for the States of Momaayo and Kissaka.  

Indicative Authorities and Research Material 

International Criminal Court 

1. a) Rome Statute of the International Criminal Court (1998): http://legal.un.org/icc/statute/english/rome_statute(e).pdf 

1. b) Elements of Crimes under the Rome Statute: https://www.icc cpi.int/Publications/Elements-of-Crimes.pdf

Basic IHL Documents 

1. a) IHL Treaties: https://ihl-databases.icrc.org/ihl
2. b) Customary IHL: https://ihl-databases.icrc.org/customary-ihl/
3. c) ICRC Commentaries to the Geneva Conventions and their Additional Protocols:  https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp

Cases 

1. a) International Criminal Tribunal for the Former Yugoslavia: http://www.icty.org/en/cases/judgement-list 
2. b) International Criminal Tribunal for Rwanda: http://unictr.unmict.org/en/cases c) International Criminal Court: https://www.icc-cpi.int/cases
3. d) International Court of Justice: https://www.icj-cij.org/en/decisions

Statement of Agreed Facts 

1.  The Kingdom of Momaayo is a constitutional monarchy situated on the eastern coast  of Solfia (see regional map, Annex II). It sits on 24,760 m2of land and has a native  population of 150,000 people. These people live primarily in the nation’s capital city  and several small villages. The villages of Dunanti and Appio are situated on the  banks of the Nadawada River – a small river that runs the length of the country. The  water in the Nadawada River begins in the Great Mountain Range in the neighbouring  Republic of Kissaka and flows across the border into Momaayo, ultimately pooling in  the Nadawada Lake. The water is considered some of the most pristine on Earth and is  credited with the longevity and overall health of the Momaayan people. 
2.  Momaayo houses a vast baobab tree region and takes great pride in preserving the  unique and beautiful trees as part of its cultural heritage. In 2008, King Arno Abdu of  Momaayo established the Momaayo Cultural Heritage Foundation – a government funded organisation with the sole purpose of maintaining the beautiful natural  environment in the region and ensuring local wildlife enjoy the correct habitat to  survive. 
3. Momaayo is also considered a haven for many rare species of animals, including  3,890 rare species of insects which depend on the baobab tree and are found only in  Momaayo. In response to international pressure to ensure the insects’ survival, in  2010 the Momaayo Cultural Heritage Foundation created the Baobab Tree Sanctuary within the Momaayo National Park. If not for the Sanctuary, it is estimated that over  2,000 of those species would have died out. The country is also home to 10% of the  world’s white rhinoceros population and over 50% of the world’s striped hyena  population. In 2017, the Nadawada River was declared a UNESCO World Heritage  site.  
4. In 1998, the Kingdom of Momaayo signed the Rome Statute and has been an active  supporter of the International Criminal Court (ICC) ever since. King Abdu personally  deposited Momaayo’s instrument of ratification at the United Nations Headquarters in  2002 following the adoption of the International Criminal Court Act 2001 by the  Parliament of Momaayo. Momaayo has adopted each of the subsequent amendments  to the Rome Statute. 
5. Momaayo has only a small military. Since 2018, it relies on both financial and  military support from the wealthy State of Pictopia to run the peaceful country and  protect its borders from aggressive neighbours. In exchange, King Abdu allows the  Pictopian government to maintain an airbase in Momaayo’s coastal waters.  
6. To the south, Momaayo shares a border with the Republic of Kissaka. Kissaka is  known to be one of the world’s poorest and most turbulent countries. It has a  population of around 17 million people. It has experienced a significant economic  downturn since 2002, when its current government came to power at the end of a  protracted insurgence. Its head of State, President Azizi Garba, was initially the leader of the rebel faction that overthrew the sitting government in 2002. When the rebels  seized power, Garba promised the people of Kissaka that their fortunes would change  under his leadership. He has continued to rule the country through autocratic rule ever  since.  
7. The Kissakan government has mandatory conscription to its military for every person  aged 16 – 20 years old. As a result, the Kissakan military is one of the largest in Solfia and, despite its lack of sophisticated weapons, is considered strong due to its number  of soldiers.  
8. Momaayo and Kissaka have a fraught history, with near-constant rumblings and  small-scale fighting at the border regions over the past century.  
9. In 2010, during a minor border clash between the two nations, President Garba sent a  small platoon to the border. The platoon was headed by First Lieutenant Addo Diallo.  Despite direct orders to maintain the peace and only fire if needed in retaliation, First  Lieutenant Diallo ordered his troops to cross the border and attack the border village  of Dunanti. He also ordered his troops to attack 7 Momaayo teen boys who were  playing in the Nadawada River. During this attack, he and his troops killed all 7 boys.  In his report of the operation, he justified his decision by saying that ‘all teen  Momaayos grow into aggressive filth like their fathers’. This report was leaked to the  leading global news service, The Pictopian Times and Lieutenant Diallo’s comments  were published in 72 countries, including Momaayo. This attack and the subsequent  comments led to the largest clash between the two nations in over a century. The 2017  fighting was bloody and protracted and was only quelled when the Pictopia and  Momaayo Military Alliance (PMMA) Treaty was signed. The PMMA Treaty was  novel at the time as Pictopia had never entered into a direct, two-party military  alliance previously. The border region had been quiet since. 
10. In February 2020, it was discovered that a large source of oil sits beneath the border  of Momaayo and Kissaka. If it could be drilled and extracted, the oil held the benefit  of providing significant financial benefit to the governments of Kissaka and  Momaayo. It would also provide significant benefit to the Kissakan army who had  been unable to afford sufficient oil in the past 10 years to fuel its tanks and military  aircraft or to manufacture the bombs required to protect its vast borders.  
11. President Garba began talks with King Abdu to discuss capitalising on the newfound  oil reserve. The two countries collaborated to investigate where the best access point  to the oil lay and what would be required to exploit it. This investigation lasted  8 months and cost both countries USD 550,000, which was a considerable  expenditure for the government of Kissaka.  
12. During the investigations, it was discovered that the access point for the oil was  situated in Momaayo within the Baobab Tree Sanctuary. The access point for the oil  was also very close to the Nadawada River and there was reported to be a 24% chance that oil from the wells would contaminate the river during the normal course of  drilling.  

13. Upon being notified of these findings, UNESCO issued a statement reminding the  governments of Momaayo and Kissaka of their responsibility to protect the pristine  Nadawada River under the Convention Concerning the Protection of the World  Cultural and Natural Heritage. The Pictopian government publicly supported this  statement. 
14. In response, King Abdu announced in a front-page article in The Pictopian Times that  Momaayo would not proceed with drilling for oil. President Garba was furious at this  announcement, having already invested a large amount of money into the project and  being reliant on the oil to re-establish his military arsenal. He insisted that Momaayo  should continue with the drilling as planned, without regard to diplomatic pressure  from Pictopia. Despite this insistence, King Abdu stood firm on his decision to uphold  Momaayo’s UNESCO obligations to protect the Nadawada River and the surrounding  natural environment.  
15. The two leaders came to a stalemate and tensions began to rise. Poverty in Kissaka  was intensifying drastically due to the COVID-19 pandemic. Yet, without the  agreement of King Abdu, it would prove impossible to exploit the oil given the main  access point to the oil sat on Momaayo’s territory.  
16. After a month of tense discussions and violent protests, on 18 April 2021, President  Garba sent the 1st Commando Battalion comprising 800 troops including a tank  platoon to the border between Kissaka and Momaayo.  
17. The leader of the 1st Commando Battalion was Lieutenant Colonel Diallo. He had  been promoted through the ranks since 2010 despite having a reputation as a violent  and brutal man who often overstepped his orders. Furthermore, on five separate  occasions since 2010, Lt. Col. Diallo had publicly criticised the Momaayan people,  calling them ‘lesser beings’ and ‘filthy animals’ amongst other derogatory terms.  These outbursts were well publicised in national media. As a result, sending  Lt. Col. Diallo and his Battalion to the border was seen as a direct and violent threat  to the Momaayo government. 
18. In response, King Abdu mobilised the Royal Momaayo Army (RMA), sending the  1st Regiment to the only crossing point of the border. Unsurprisingly, there was  immediate gunfire with both sides attempting to intimidate each other. While there  were a small number of fatalities during the initial exchange of fire, the situation did  not escalate and both armies stayed on their respective sides of the border.  
19. On 20 April 2021, King Abdu made a public statement during a large press  conference warning that if Kissakan troops were to cross the border, they would be  met with the full strength of the RMA, stating that ‘every Momaayo man and boy will  defend their country, and the sanctity of the natural world, above all else.’
20. At 11:25 pm on 24 April 2021, President Garba gave Lt. Col. Diallo the order for  troops from the 1st Commando Battalion to cross the border by stealth through the  Momaayo National Park and infiltrate the quiet village of Dunanti near the border.  There were two objectives:  
    • to secure the access point to the oil; and  
    • to peacefully contain the villagers in their houses until the Kissakan oil miners  were able to begin drilling for oil the next day.  
21. Three Kissakan tanks were rolled slowly through the Momaayo National Park to  create a direct path to the oil access point, and to evade Momaayan troops who were  stationed along the existing roads. Doing so also allowed the Kissakan troops and  miners direct on-foot access to the oil access point from the Kissakan border and  allowed them to reach the access point in 1.3 km rather than the 3 km it would have  otherwise taken using the existing roads. While creating a direct path to the oil access  point, the Commando Battalion flattened and destroyed over 25,000 baobab tree  saplings that had been planted 9 years earlier as part of the Baobab Tree Sanctuary. 
22. Upon reaching the oil access point, half of the Battalion created a physical perimeter  around the access point. They then buried 3 improvised explosive devices, made from  ammonium nitrate fertiliser, at the entrance to the roads leading to the access point.  The devices were placed within one metre of two of the five remaining 100-year-old  baobab trees in the Momaayo National Park.  
23. The other half of the Battalion entered Dunanti, setting up makeshift electric fences  blocking the roads and pathways at the edges of the village to prevent villagers from  disrupting their control of the oil access point.  
24. Despite taking stealth measures, within a few hours, a few villagers had noticed the  fences erected by the Kissakan armed forces and reported this to the Momaayo Police  stationed in Appio. Being a small and peaceful country, Momaayan police do not  carry firearms but instead carry tasers. Upon being advised of the Kissakan military  operation, the two police officers on duty retreated north towards the capital, calling  their regional command en route.  
25. Hearing noises outside, some villagers living at the outskirts of Dunanti came out of  their homes brandishing spears, machetes and rolling pins. A scuffle broke out  between five soldiers and a dozen villagers. During the scuffle, three of the soldiers  were injured and five of the villagers were killed. The remaining villagers were  restrained with plastic flex cuffs and made to sit along the side of the road.  
26. This altercation woke up the rest of the village. More villagers began exiting their  homes to confront the Commando Battalion troops. Fearing his forces might become  outnumbered, Lt. Col. Diallo yelled orders in local Kissakan dialect to his troops. The  Kissakan forces began moving from house to house, entering homes and forcing all  the men and boys into the street. They ordered all women and children to stay inside. Once the men and boys were in the street, Lt. Col. Diallo shouted an order, after  which the male villagers were lined up and shot in the back of their heads. From the  reports of villagers, it was estimated that 170 Momaayan men and boys died.  

27. Upon being alerted to the incursion, at dawn on 25 April the RMA sent a unit of  heavily armed soldiers to Dunanti. Travelling in amphibious assault vehicles, the unit  made it to the southern province by midday. Armed with high powered firearms, the  RMA was able to force the enemy troops out of the village with minimal casualties to  both armies.  
28. The RMA remained in Dunanti and set up a base to ensure the ongoing safety of the  village and to secure the access point. In accordance with the PMMA, the Pictopian  military sent large supplies of Mk 17 Mod 0 battle rifles to arm the RMA. Two  hundred and ten local police from the Northern and Eastern provinces of Momaayo  were stationed in Dunanti and armed with Pictopian military-issue Berreta 92FS M9  pistols.  
29. As public pressure on President Garba increased, on 10 July 2021 President Garba  gave the order for Kissakan troops to weaken the Momaayo military by filtering existing stores of crude oil into the Nadawada River. This act meant that, although  pristine drinking water remained available to the people of Kissaka, downstream the  oil contaminated the water flowing into Momaayo and pooling at the Nadawada Lake,  thus limiting the RMA’s ability to remain in the border region and access clean water.  The Government of Kissaka stated publicly, ‘now there is nothing left to protect we  can work as one to make our region great.’ Given the lack of oil available in Kissaka,  this order was costly to the government and depleted their already dwindling oil  supply for military use. 
30. The effect of the contaminated water was such that the drinking water available to  Momaayan residents dropped by 60%. Within days, water toxicity poisoning began to  appear in both the human and animal populations. Over half of the RMA soldiers  stationed at the border region had to relocate to access fresh water, leaving their  military campaign weakened. Within a week, 2% of the world’s endangered white  rhinoceros population had died due to crude oil poisoning.  
31. The effects of the violence and environmental damage in Momaayo were felt in the  wider region. Faced with resource scarcity and the risk of further violence, civilians  were fleeing to the neighbouring Federal Republic of Durham and to Pictopia. There  was a concern that, with no measures being taken to mark or monitor the use of  weapons being supplied to Momaayo, they might later be sold to fighters in the  growing Durham resistance movement. 
32. After considerable lobbying by the Council of Solfian States, Durham and the  Momaayo Cultural Heritage Foundation, the United Nations Security Council  considered the situation in Momaayo. Adopting Resolution 3827 on 28 August 2021,  the Security Council authorised a UN peace operation in Momaayo (see Annex III).
33. Among those deployed to Dunanti, United Nations Police helped to take the  testimonies of the villagers. UN Police patrols were conducted in the area to  demonstrate their presence, assess the situation, and protect civilians. UN Police were  also sent to Dunanti to ensure the introduction of crude oil into the Nadawada River  ceased, while experts from the United Nations Environment Programme (UNEP)  were sent to investigate the overall impact on the natural environment due to: 
    •  the destruction of the baobab saplings, 
    •  the introduction of oil to the water, and  
    •  the sickness appearing in wildlife populations. 
34. The UN environmental workers determined that, if left untouched, the oil introduced  into the Nadawada ecosystem would take 12 years to fully dissipate. As a result, they  requested further investigation into alternative cleaning options given the reliance on  the water by the white rhinoceros population and the striped hyena population. However, the officers were not hopeful that any alternative cleaning options could be  employed due to the delicate ecosystem in the region. 

35. Several States adopted sanctions against Kissaka, including to restrict the supply of  weapons, oil and fertiliser to the country. It became increasingly difficult to quell  dissent in Kissaka as agricultural production slowed and the cost of living rose  sharply.  
36. At 8:30 am on 5 October 2022, President Garba gave Lt. Col. Diallo the order to  return to Dunanti to secure the oil access point. They were to use any lawful means  necessary to secure the access.  
37. Upon arriving in Dunanti, Lt. Col. Diallo led one group of Kissakan soldiers down the  direct path to the oil access point. On the way, they encountered four UNEP workers  who were surveying the damage to the baobab saplings. Just beyond them was a UN  Police officer, who had accompanied the environmental workers. All five UN  personnel wore blue berets clearly denoting the UN emblem and the police officer had  a standard issue SIG Sauer M18 semi-automatic pistol secured to her hip. Upon  seeing Lt. Col. Diallo and his troops, the UN Police officer reached for her weapon. In  her panic, she discharged a round. It ricocheted off the ground and hit one of the  UNEP workers in the right arm, causing her to scream in pain. Upon hearing the  gunshot and the screaming, Lt. Col. Diallo retrieved his AK-47 assault rifle and  killing three of the UN environmental workers and the UN Police officer. The  remaining UN environmental worker was badly injured at the scene and died 5 hours  later at the Dunanti medical assistance centre.  
38. King Abdu was outraged by the latest violence against UN personnel. On 7 October, he referred the situation in Momaayo to the ICC. 
39. On 20 November 2021, the ICC Prosecutor informed both King Abdu and President  Garba that they found there to be sufficient evidence to open an investigation. In  response, President Garba ordered his troops to retreat to the border. 
40. On 12 February 2022, the ICC issued an arrest warrant against President Garba. Later  that day, President Garba was arrested at an airport in Durham while in transit to  Pictopia where he was scheduled to speak at the United Nations General Assembly.  He was transferred to the ICC detention facility in The Hague, the Netherlands. 

Charges 

The Office of the Prosecution presents the following charges against the defendant, President  Azizi Garba: 

Count 1  

With respect to the destruction of the Baobab Tree Sanctuary in Momaayo: 

On the basis of individual criminal responsibility, for ordering, soliciting or inducing the  commission of such a crime which in fact occurs or is attempted as per Article 25 of the  Rome Statute, 

The war crime of intentionally launching an attack in the knowledge that such attack  will cause incidental loss of life or injury to civilians or 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 in Article 8(2)(b)(iv) of the Rome Statute.  

Count 2  

With respect to the introduction of crude oil into the Nadawada River: 

On the basis of individual criminal responsibility, for ordering, soliciting or inducing the  commission of such a crime which in fact occurs or is attempted as per Article 25 of the  Rome Statute, 

The war crime of intentionally launching an attack in the knowledge that such attack  will cause incidental loss of life or injury to civilians or 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 in Article 8(2)(b)(iv) of the Rome Statute.  

Count 3 

With respect to the killing of five UN Personnel: 

On the basis of the responsibility of commanders and other superiors as per Article 28 of the  Rome Statute, 

The war crime of intentionally directing attacks against personnel, installations,  material, units or vehicles involved in humanitarian assistance or peacekeeping  mission in accordance with the Charter of the United Nations, as long as they are  entitled to the protection given to civilians or civilian objects under the international  law of armed conflict under Article 8(2)(b)(iii) of the Rome Statute.

Count 4 

With respect to the killing of 170 men and boys in the town of Dunanti: 

On the basis of the responsibility of commanders and other superiors as per Article 28 of the  Rome Statute, 

The war crime 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 Rome Statute. 

Annex I: Applicable Agreements 

Annex II: Regional Map

Annex III: Security Council Resolution