UNIVERSITY OF SAN JOSE-RECOLETOS

SCHOOL OF LAW

THE OFFICE OF THE PROSECUTOR

VS COL. POTTER

MEMORANDUM FOR THE PROSECUTION

TAMPUS, MARY GRACE G.

JUNE 11, 2018
 TABLE OF CONTENTS

INDEX OF AUTHORITIES ----------------------------------------------------------------------- 2

QUESTIONS PRESENTED ----------------------------------------------------------------------- 3

STATEMENT OF FACTS ----------------------------------------------------------------------- 4-6

ADMISSIONS BY PARTES ------------------------------------------------------------------------- 7

SUMMARY OF PLEADINGS --------------------------------------------------------------------- 8-9

PLEADINGS ----------------------------------------------------------------------- 10-14

PRAYER ----------------------------------------------------------------------- 15

Memorandum for the Prosecutor| 1

 INDEX OF AUTHORITIES

 Rome Statute of the International Criminal Court

 First Geneva Convention: The Geneva Convention for the Amelioration of
the Condition of Wounded and Sick in Armed Forces
 Fourth Geneva Convention: The Geneva Convention Relative to the
Protection of Civilian Persons in Time of War
 Additional Protocols to the Geneva Conventions of 1949 relating to the
protection of victims of international armed conflicts (Protocol 1)

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 QUESTIONS PRESENTED

WHETHER COLONEL POTTER IS GUILTY OF COMMITTING VIOLATIONS OF LAWS OR

CUSTOMS OF WAR BY COMMITTING:

a. Attribution of criminal responsibility

b. Crime against humanity of deportation or forcible transfer of population
c. War crime of improper use of distinctive emblems of Geneva Conventions

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 STATEMENT OF FACTS

Aside from sharing a mountainous and inaccessible border region, Manis and
Tuton also shared a violent history and for the last 10 years, the violence has all
the more escalated in the eastern border region which provided access to the
Atlantic Ocean and profitable shipping routes.

In the early 2004, violent border clashes increased between military forces of
Manis and Tuton resulting to both civilian and military losses. In an attempt to
frustrate Tuton’s supply and shipping routes, Manis made Tuton’s access to Blue
Channel increasingly difficult resulting to Tuton’s restrictions on trade and
growing food shortages. Thus on 2005, Tuton’s military forces invaded the north-
eastern border region of Manis claiming its ‘sovereign right to freely access the
Blue Channel’ to which such skirmish resulted to the defeat of Manis’ military
forces. Tuton’s military forces took control of region, occupied it and established
a temporary administration over the area. The sustained fighting destroyed
several public buildings and damaged Manis’ water supplies and power grid in
the north-east region.

From January 2005, Col. Potter was the Base Commander of Tuton military base
and was in charge of Tuton soldiers in Hild and immediate vicinity. By June 2005,
several Tuton military check points in the area were setup under his command,
including along the road leading to Hild. The village Hild was fairly isolated in the
mountains close to the border, and relied on southern Manis villages for some of
its food, as well as the connection to its water and electricity networks and the
fighting occurring in the area damaged the roads and infrastructure near Hild
and surrounding area resulting to its more difficult access.

On May 2005, Col. Potter’s soldiers patrolled the areas in and around Hild in an
attempt to restore order and peace however; sporadic incidents of armed
resistance and violence were widely reported in Hild. During this time, Tuton
authorities detained those suspected of acts of violence against its forces in and
around Hild.

Meanwhile, cross border incursions and shelling campaigns continued to

damage civilian buildings, outlying farmlands and water supplies in Hild, with the

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village being left without water for days. Throughout June-August 2005, Col.
Potters soldiers were routinely seen stopping and searching local vehicles,
including public and school buses. During this time local media sources reported
that Col. Potter and his soldiers were searching for ‘Manis guerilla sympathisers
and weapons’.

On July 15, 2005, a bomb exploded in Hild near local Tuton military barracks
killing four off-duty Tuton soldiers. A week later a military jeep was attacked by a
bomb triggered by the passing vehicles on the road. After the two bomb
attacks Col. Potter received information from a local informant that members of
Manis guerilla units from the south might have been infiltrating Hild and
surrounding area to carry the attacks and because of this, Tuton soldiers under
Col. Potter’s command stepped up their security in Hild and surrounding area
which included 24-hr checkpoints on the entry road of Hild. Local Hild villagers
either leaving for work or returning to the village at dusk after work were
routinely stopped and bags and vehicles searched. Col. Potter’s men
questioned those trying to enter the village about their work and family
members.

During July and August2005, there were also reported incidents of Col. Potter’s
men searching food and supplies brought by villagers into Hild. Bags of rice, flour
and beans were reported as broken open, spilt and searched. Villagers were
angered at what they called deliberate waste of food when supplies were
scarce. The soldiers claimed actions were necessary security measures against
daily threats. The soldiers at the entry checkpoint refused to allow some building
equipment and water-sanitation experts from larger cities in Manis’ south to
enter Hild thus damaged water pipes and electricity networks remained
unrepaired. Also, Tuton soldiers in Col. Potter’s unit were seen putting up notices
in public square offering to relocate villagers to southern village of Elvos, a larger
village further away from border campaigning it had undamaged water and
power networks and that it had shops, local food market, and medical centre.

The public notices called on villagers to consider the health and well-being of
their families and children and indicated that the ongoing lack of water, food
and armed attacks made Hild both unsafe and a potential health risk.

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By late June 2005 Manis has also increased its attacks over the northern border
with Tuton. This included nightly raids conducted by guerilla units from Manis’
military forces on the Base in Tuton territory.

The Tuton military base included a reasonably sized medical facility staffed by
approximately 20 permanent military medical personnel. Due to continued
nightly raids and a severe shortage of available able personnel, Colonel Potter
ordered most medical personnel to assist with general protection of Base,
including patrols to identify Manisian units attempting to infiltrate border to
reach the Base. Approximately 2km from the Tuton military base they came
upon an enemy unit of Manisian military in an armored vehicle that was
proceeding in the general direction of Base.

Manisian soldiers identified the approaching unit as medical personnel and

continued their course. One of Tuton’s military medical personnel saw the
Manisian soldiers continue to approach, became nervous, and fired his weapon
at their vehicle. Manisian soldiers immediately returned fire. A short battle
ensued and six Manisian soldiers were killed. Tuton’s military medics returned to
base and resumed their patient rounds.

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 ADMISSIONS BY PARTIES

Both parties submit jointly to the jurisdiction of the UN Special Court which is

mandated to try individuals accused of having committed the most serious

violations of Laws and Customs of War. Pursuant to Article 1 of the Special

Court’s Statute, it has the power to prosecute persons responsible for serious

violations of international humanitarian law committed in the territory of Manis

and Tuton. The parties to the dispute have accepted the jurisdiction of the Court

and both parties shall accept the judgment of this Court as final and binding

and shall execute it in good faith.

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 SUMMARY OF PLEADINGS

The conduct of Col. Potter took place in the context of and was associated with
an international armed conflict during the period relevant to the submissions1. In
Prosecutor v. Tadic2, it was held that “it is indisputable that an armed conflict is
international if it takes place between two or more states. In addition, in case of
an internal armed conflict breaking out on the territory of the State, it may
become international if (1) another State intervenes in that conflict through its
troops or alternatively if (2) some of the participants in the internal armed
conflict act on behalf on that other State. Upon the duration of the armed
conflict the following are the crimes he is liable for:

 Attribution of criminal responsibility

The prosecution respectfully submits that Col. Potter is criminally

responsible within the meaning of Article 25 paragraph 3 of the Statute
considering that Potter, being the commander of the Hild Unit, possessed
the authority to order the commission of the offenses. In the same manner,
Article 7 (1) (3) of the Statute of the International Criminal Tribunal for the
Former Yugoslavia has also been violated.

 Crime against humanity of deportation or forcible transfer of population

The prosecution respectfully submits that Col. Potter has committed the
crime against humanity of deportation or forcible transfer of population
being the commander of the Hild Unit in relation to acts committed to
thee chaos that took place in Hild amounting to a violation of Article 7 (d)
of the Rome Statute of the International Criminal Court. The prosecution
as well submits that since Tuton is signatory to the four Geneva

1
CA 2, Geneva Conventions 1-4: international armed conflict occurs when in all cases of declared war of any other
armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is
not recognized by one of them.
2
Prosecutor v. Tadic, Case No. IT-94-1, Appeals Chamber, July 15, 1999 par. 84

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 Conventions as well as its additional protocols, Potter has as well violated
provisions relating to armed conflicts.

 War crime of improper use of distinctive emblems of Geneva Conventions

The prosecution respectfully submits that Col. Potter has committed the
war crime of improper use of the distinctive emblems (the red cross
insignia) of the Geneva Conventions thus violating Article 3 of the Statute
of ICTY which pertains to violations of the laws or customs of war and
Article 37 of Additional Protocol I prohibiting perfidy and blatantly using
medical personnel as a cover to commit such perfidy.

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 PLEADINGS

 Attribution of criminal responsibility

The prosecution submits that Col. Potter is criminally responsible within the
meaning of Article 25 paragraph 3 of the Rome Statute which states that a
person shall be criminally responsible and liable for the punishment for a
crime within the jurisdiction of the Court if that person: order, solicits or
induces the commission of such a crime which in fact occurs or is attempted.
In addition, Article 28 of the Rome Statute is as well violated making military
commanders, other superiors and those with superior and subordinate
relationship criminally responsible for crimes done under his effective
authority and control or as a result of his failure to take all necessary and
reasonable measures within his or her power to prevent or repress its
commission3.

In such the same manner, such article correlates with Article 7 paragraphs 1
and 3 of the Statute of the International Criminal Tribunal for the Former
Yugoslavia 4(ICTY) providing for the same gist making a person liable and
responsible despite not being able to physically commit the crime but merely
ordered, planned, instigated, or ordered for the preparation or for the
execution of the crime committed.

Violation of the said provisions is evident by committing war crimes resulting

to the damaging of the roads and infrastructure near Hild and the

3
Article 28, Rome Statute: In addition to the grounds of criminal responsibility under this Statute for crimes within
the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible
for crimes within the jurisdiction of the Court committed by forces under his effective command and
control, or effective authority and control as the case may be, as a result of his failure to exercise control
properly over such forces where- [i] military commander or person either knew or, owing to the
circumstances at the tim, should have known that the forces were committing or about to commit such
crimes; and [ii] military commander or person failed to take all necessary and reasonable measures within
his or her power to prevent or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.

4
Article 7 (1) (3) ICTY: (1) A person who planned, instigated, ordered, committed or otherwise aided and abetted in
the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present Statute, shall be
individually responsible for the crime; (3) The fact that any of the acts referred in the Statute was committed by a
subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the
subordinate was about to commit such acts or had done so and the superior failed to take the necessary and
reasonable measures to prevent such acts or to punish the perpetrators thereof.

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 surrounding area. Moreover, because of the deprivation of the basic
necessities of living such as water and food and lack of electricity necessities
due to the order given to the military persons of refusing Manis civilians who
are suspected of acts of violence to enter Hild, water pipes as well as
electricity plants and even farmlands remain unrepaired. Hence, people
living in Hild are forced to evacuate to Elvos which in fact they would not
have to do so if there was no chaos in the said border region. Also, because
of the strict patrolling and routine searching, villagers are delayed from
returning home for several hours past nightfall causing workers delay in going
to their jobs the next day. Food supplies brought by villagers into Hild were
also reported to be broken open, spilt and searched angering the villagers as
it is a deliberate waste of food when at such times the supplies were scarce.

By the said violations of the human rights of the villagers in Hild, Col. Potter is
therefore responsible of such commission of violations by virtue of his
command responsibility given that the accused was the Commander in
charge of Tuton soldiers based in Hild clearly showing a superior-subordinate
relationship existing between him and the soldiers. In fact, the actus reus
of ’ordering’ means that a person in a position of authority instructs another
person to commit an offence5. His ordering, aiding and abetting were done
in the awareness of the substantial likelihood that damage would likely occur
consequent to his conduct. Potter had the authority to instruct others to
commit an offense and therefore, responsible for the attacks as he did not
even refrain his unit from such attack causing incidental loss of civilians and
of public objects.

Thus, Col. Potter is liable.

 Crime against humanity of deportation or forcible transfer of population

The prosecution as well submits that Col. Potter is criminally responsible for
violating Article 2(g) of the ICTY Statute6 and Article 49 of the Fourth Geneva

5
See: Kordic and Cerkez Trials
6
The International Tribunal shall have the power to prosecute persons committing or ordering to be committed
grave breaches of the Geneva Conventions of August 12 1949, namely one of which is: unlawful deportation or
transfer or unlawful confinement of a civilian.

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 Convention 7 regarding unlawful deportations or forcible transfers. The
prosecution submits that Col. Potter’s soldiers created and took advantage
of a coercive environment where the villagers leaving Hild made it seem that
it was indeed their genuine choice.

The humanitarian crisis causing the displacement of the villagers of Hild was
itself the result of Col. Potter and his soldier’s own unlawful activities as the
soldiers covertly deprived the villagers of food, water, and electricity under
the pretext of securing the safety of the villagers8. As per the compromis,
despite the blatant damage on civilian building, farmlands and water
supplies in Hild with the village being left without water for days, soldiers
under the command unit of Col. Potter did not make any move as to remedy
it. Moreover, bags of rice, flour and beans were reported as broken open,
spilt and searched despite knowing that food has already been scarce in the
village which is in blatant violation of Article 23 of the 4th Geneva Convention
pertaining to the convention protecting civilians in times of war. Such
provision provides that the Occupying party or either of the party to the
conflict shall permit the free passage of all consignments of essential
foodstuffs, clothing and tonics which was never made possible.

Due to the scarcity of basic necessities, the villagers have no option but to
accept to being relocated to Elvos. Genuine choice therefore cannot be
inferred from the fact that consent was expressed by the villagers as
coercive circumstances gave them no real option but to leave. Additionally,
there were no tangible evidence that the villagers of Hild were in danger as
a result of military operations or intense bombing as per compromis 9, the
civilian population was not at risk considering that the attacks were directed
the Tuton military forces. Bombs and explosion were mainly targeted either as
to the barracks of the Tuton military forces or where most of the soldiers were
seen patrolling.

7
Article 49, 4th Geneva Convention: Individual or mass forcible transfers, as well as deportations of protected
persons from occupied territory to the territory of Occupying Power or to that of any other country, occupied or
not, are prohibited regardless of their motive.
8
See: Krajisnic Trials; it is not necessary to show that there was an intent to displace the population on a
permanent basis.
9
Compromis: July 15, 2005, a bomb exploded in Hild near the local Tuton military barracks; July 22, 2005, a
military jeep carrying military supply was attacked by a bomb trigerred by the passing vehicles on the road.

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  War crime of improper use of distinctive emblems of Geneva Conventions

The prosecution submits that Col. Potter is liable through the command
responsibility he has over the soldiers assigned at Hild Unit and of its medical
personnel considering that they made an improper use of distinctive emblem
of the Geneva Convention which is the Red Cross, resulting in death and
serious personal injury violating Article 3 of the Statute of ICTY and Article 37
of Additional Protocol I prohibiting perfidy10.

As per compromis, commission of such war crime is evident on the incident

that happened on July 22, 2005 when Col. Potter ordered most medical
personnel to assist with the general protection of the Base, including patrols
to identify Manisian units attempting to infiltrate the border to reach the base.
Further on July 30, 2005, unit of Tuton’s military medical personnel who wore
brassards bearing the red cross emblem, carried light personal weapons and
travelled in an armored vehicle conducted patrol around the Base and
where one of the Tuton military personnel fired his weapon at a Manisian
soldier. Such acts clearly constitute perfidy which is defined as inviting the
confidence of an adversary to lead him to believe that he is entitled to, or
obliged to accord protection, under the rules of International Humanitarian
law, with intent to betray that confidence11.

The medical personnel improperly used the distinctive emblem of the Reed
Cross by wearing it for a non-humanitarian purpose. The uniforms and
vehicles used as well invited the confidence of Manisian soldiers, leading
them to believe that the Tutons were entitled to protection under the
international law as any improper use of a distinctive emblem of the Geneva
Convention has the effect of diminishing the protective value of the emblem.
What should have been done was that, since the command unit has a
shortage of soldiers, they should have removed the emblem and should not
have identified themselves as medical personnel for the time being.

10
Article 37, Additional Protocol I: It Is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts
inviting confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection
under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall
constitute perfidy; (d) feigning of protected status by use of signs, emblems or uniforms of the United Nations or of
neutral or other States not parties to the conflict.
11
Ibid.

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Since, the medical personnel was only carrying out the order under the
command responsibility of Col. Potter, Col. Potter therefore is as well liable of
the war crime of improper use of distinctive emblem. As a military
commander, Col. Potter must have known of the protection afforded to the
medical personnel under international law and the illegality of the improper
use of Red Cross emblem.

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 PRAYER

The Prosecutor respectfully prays that this Tribunal to rightfully adjudge and
declare in accordance with the submissions of Prosecutor and convict Col.
Potter of all the charges against him.

RESPECTFULLY SUBMITTED

___________________________

AGENTS FOR THE PROSECUTION

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