Asia-Pacific Moot Court National Rounds 2011
Moot Problem
PROSECUTOR v. DAVID DABAR
Before the International Criminal Court at The Hague
1. Vanilia obtained its independence in 1959. It is bordered by the Maxicum Sea on the east with a coastline of more
than 500 kilometres, by the Republic
of Berryland to the south
and west and the Republic
of Mingolia to the north.
Vanilia is federal state divided into three provinces and has a population of around
20 million people. It is populated by the Lemi people who are mostly Protestant
and Swarohi speaking (56% of population) and by the Nomag people who are Catholic
and Nomagi speaking (32% of population). The Nomag people, though spread across
the country, are in the majority in the province of Losovo,
which borders Berryland. Many believe that the Nomags came to Vanilia from
Berryland during the colonial period as indentured labourers. Others think that
Losovo is in fact the original land of the Nomags, and that they later spread from
Losovo into Berryland. It was made part of Vanilia only because of the existing
colonial administrative divisions at the time of independence. Owing to the
circumstances of the independence of the three countries which left many issues
unresolved, Vanilia continues to have border disputes with its neighbours Mingolia
and Berryland. There have been sporadic border incidents with exchange of fire
across the borders.
2. After the independence, Vanilia adopted a political system of
representative democracy with a multiparty system. The President appoints the
leader of the party which wins the majority in the legislative elections as
Prime Minister, who then chooses the members of his cabinet among elected
deputies. The People's United Democratic Party (PUDP) has formed the successive
governments since independence. Though the PUDP claims to be secular and have countrywide
support, it is mainly supported by the Lemis. Its main political agenda is said
to be the protection and promotion of Lemi rights and well-being (which feel
that they were discriminated against as a minority during the colonial era). The
Federal Democratic Party (FDP) has
been the main opposition party and openly claims to protect the interests of
the Nomags.
3. There is a general resentment
among Nomags that they have been neglected by the successive governments and are
not proportionately represented in the political decision-making which has
resulted in the neglect of their welfare and economic development. The Nomag
community has been demanding since the proclamation of the Federal Constitution
that the Nomagi language be declared as an official language of Vanilia. Successive
governments have refused to accept the demand. Some organisations also claim
that the Nomags are under-represented in the main sectors of economy and
discriminated against in the public service. Ever since independence, some Nomag
groups have been spearheading the idea of an independent Losovo state.
4. In January 2008, general elections were held in Vanilia. The PUDP
again obtained the majority of seats in the federal legislative assembly and
formed the government. Three months later, in the provincial elections, the FDP won an overwhelming majority in the Losovo
Provincial Assembly and formed the executive council. In August 2008, a radicalized
faction of the FDP established the
Nomag Democratic Resistance Alliance (NDRA), with the avowed objective to obtain
the independence of Losovo. David Dabar, elected to the Losovo Provincial
Assembly on behalf of the FDP and
in charge of law and order affairs in the Losovo Executive Council was seen as
the figurehead of the NDRA. Several support groups were formed in different
regions of Vanilia with similar goals. Media reports in Losovo indicated that
this was the result of disenchantment with the successive federal governments
and disappointment with the failure to achieve a fair representation of Nomag
interests at the federal level.
5. In Rizoba, the capital city of Losovo,
on 15 October 2008,
the day of Vanilia's independence, a demonstration of around 500 people
belonging to the NDRA hoisted a "Losovo national flag", while
desecrating and burning the Vanilia national flag. On the same night, five
people belonging to the NDRA were arrested in their residences and charged
under the Respect for National Symbols Act. These arrests led to street
protests in different parts of Vanilia. After these incidents, a group called
the Vanilia Patriotic Forum (VPF) was formed in Rizoba mainly consisting of Lemi
people. It claimed that its main objective was to protect the sovereignty and
political integrity of Vanilia and that it would support the federal government
to the greatest possible extent to achieve these objectives. The VPF opened its
central secretariat in the 'Pleasant
Gardens' area of Rizoba,
which was predominantly a Lemi-inhabited area, and actively started to recruit
new members, both men and women. The NDRA also started to accelerate its recruitment
and declared, on 30
November 2008, that it was breaking away from the FDP. David Dabar was proclaimed the chief of the NDRA
under whose leadership the NDRA would campaign for the achievement of the
independence of Losovo. Dabar remained a member of the Losovo Executive Council.
6. A few days later, on 5
December 2008, students from the Rizoba University
formed the Nomag Student Alliance (NSA) and announced that they would establish
co-ordination with other groups fighting for Nomags' rights. On 8 December 2008, the NSA
issued a call for the indefinite boycott of classes in the University which
they declared would be enforced, if necessary, in "militant forms".
During the following weeks, factory workers, journalists and university
teachers also formed pro-independence associations. In Losovo, the situation
became more and more tense with regular protests and demonstrations during the
month of January 2009.
7. On 2 February 2009, the NDRA convened a
meeting in which the NSA and other pro-independence associations took part. In
the discussions, the participants agreed that they should all coordinate their work
and activities for the independence of Losovo and seek the necessary national
and international support. The final declaration indicated that all
associations would take guidance from the NDRA and its leader David Dabar.
8. On 3 February 2009, there were several
attacks on the Lemis of Losovo in five towns near the provincial border,
leading to the loss of 126 lives with 239 people injured. The media reported
that the increased level of violence in the last months made it difficult to identify
who was responsible for the attacks. However, it was strongly believed by the
government of Vanilia, and the most important newspapers of Vanilia, including
those based in Losovo, that the NSA was behind these attacks.
9. Several newspapers
published a report based on an NDRA internal document, which said that the organization
would strive towards eliminating the influence of Lemi in Losovo. Government
authorities of Vanilia confirmed the expulsion of Lemis out of Losovo into the neighbouring
provinces. Temporary camps were set up by the Vanilia government near the
border to shelter the displaced families. Neither the NDRA nor the NSA deny their
involvement in the forced expulsion of Lemis, but alluded in their press
releases that Lemis that had left the province would be welcomed back in only
after Losovo had achieved independence and on the condition that they would
swear allegiance to the new state of Losovo.
10. On 10 February 2009, a
pro-Lemi TV channel reported that increasing attacks on Lemi residences in
Rizoba by NSA members were to be expected. The same evening, David Dabar went
around the Pleasant
Gardens area along with
NDRA members and ordered the latter to erect roadblocks to control the movement
of residents. He explained to the media that they wanted to check every
movement through the locality, in particular to protect the Lemis from growing
violence. The NDRA cadres said that they would not allow any one to enter the
area. On the same night, NSA members easily went into Pleasant Gardens
without being stopped by NDRA roadblocks. The NSA members, divided into groups,
went to the residences and forcibly brought out more than 400 Lemi residents
into the area's main square. The NSA members divided the residents into two
groups: men in one group and women and children in another. They were told that
they would be brought to the border until their safety would be ensured in
Rizoba. After an hour, several trucks left the area without any hindrances. The trucks were granted unimpeded passage out
of Pleasant Gardens through NDRA roadblocks. On 12
February, media reported that the Lemi people from the Pleasant Gardens
locality were taken by the NSA and kept in camps, 60 kilometres away from
Rizoba. The media of Berryland also highlighted that the camps were actually
located just across the border, on the territory of Berryland,
though this territory remained a contentious one as Vanilia also claimed it
despite an arbitral award in favour of Berryland, which was disputed by
Vanilia.
11. Responding to criticism,
Dabar declared that the NDRA's aim was secession from Vanilia. There was no
intention to target or injure Lemi civilians. On the contrary, measures had
been taken to ensure their protection from the disorganised violence caused by
the federal government's acts. He said, however, that the NDRA also expected
Lemi civilians to appreciate the genuine demand of Nomag people, otherwise it
would become difficult in such tense situations to control the emotionally
stirred-up and politically agitated Nomag population. He further invited
humanitarian organisations, including the International Committee of the Red
Cross (ICRC) to visit the camps.
12. The Prime Minister of
Vanilia, Nijimon Yavi, issued a stern warning to those involved in the
displacement of Lemi people and deployed security forces in Losovo with the
backup support of 300 army soldiers. In the next few days, it was reported
that, across Vanilia, several attacks had taken place on property of the
Vanilian government, as well as on private property. There were instances of
weapon-wielding young men attacking Lemi people, and in different incidents 39
people were killed. In some instances, Lemi people from Losovo were again
forced to leave their residence and flee to other provinces. Several groups claimed
responsibility for some of the attacks. The month of March witnessed continuous
protests by NDRA supporters across Vanilia but mainly in the province of Losovo.
Vanilian security and intelligence forces arrested a chain of weapons suppliers
operating from Berryland whom they claimed the NDRA was acquiring weapons from.
13. On 22 May 2009 at
around midnight, a camp of the security forces on the outskirts of Rizoba was
attacked by armed men and in the pitched battle that ensued between the armed
men and security forces, the camp site was in ashes by the next morning. 156
bodies of the security forces and 53 unidentified bodies were recovered from
the site. It was reported by local officials that armed men were continuing
their attacks on government property, mainly offices and vehicles, as well as
on Lemi people and their property. Three highways connecting Losovo with other
cities in Vanilia were blocked by armed youths at Losovo borders.
14. On 28 May 2009, David Dabar
convened a press conference and declared that the NDRA would organise a rally
the next day and declare the independence of Losovo. On 29 May 2009, thousands of people
gathered on the Rizoba
University grounds. Dabar
greeted the crowds and thanked them for being supportive of the cause of the
liberation of Losovo. He announced that the FDP
government had issued a declaration of independence. Losovo was now an
independent sovereign country. The NDRA was soon to be in control of the entire
province. He said that from now on, the Losovo administration was going to be
in the hands of Nomag and for the interests of the Nomags. All Nomags in other
parts of Vanilia were welcome to settle in Losovo to participate in the
development of the new country. Adopting
a warning tone, he said that non-Nomag people could remain in Losovo. However,
he added, all, including Lemi people, should respect the law of the country. At
the end of the meeting, he introduced Wilson Mula, leader of the FDP, and announced that he would be leading the
interim government for the next one year, until a new constitution was drafted
and a constitutionally-elected government took over.
15. On 2 June 2009, Berryland
recognised Losovo, followed by Mingolia on 4 June. In an extension of
solidarity to a fellow people, the Berryland government waived the visa
requirement for Losovo citizens for one year, which it said would help stabilising
Losovo. The Berryland Prime Minister also promised to extend the necessary
support to the newly formed Losovo government.
16. With regard to
international relations, in his first press conference, Mula announced that
Losovo wished to maintain friendly relations with all countries and that it
would succeed to all multilateral international treaties to which Vanilia was a
party that dealt with human rights and international humanitarian law. With
regard to other treaties, including bilateral treaties, they would be reviewed
within the next two years. The first official act of the new government was to
grant by decree Losovo citizenship to all Lemis residing in the province. Other
residents were to be granted citizenship at their request if they undertook to
live in Losovo and swore allegiance to the new State. A new law on citizenship
was soon to be adopted.
17. On 5 June 2009, the Prime
Minister of Vanilia, Nijimon Yavi, said on national television that Losovo
province was an integral part of Vanilia and blamed neighbouring countries, in
particular Berryland. Supporting the NDRA and its secessionist stance
constituted an unacceptable intrusion in Vanilia's internal affairs in violation
of the UN Charter and would be dealt with in an appropriate manner. In manifest
contradiction with the situation on the ground, he said that Vanilian security
forces were in total control of the situation in Losovo, that they would take
into custody the main leaders of the NDRA soon, and that they would try them in
accordance with law. Meanwhile, NDRA fighters continued to be in direct
confrontation with Vanilian forces at the Losovo borders. The NDRA successfully
thwarted the Vanilian security forces' attempts to gain control of Losovo
territory, let alone to re-take control of Rizoba. The Vanilia government
called for international support and expressed concerns about the security of
the Lemi people in Losovo.
18. On 8 June 2009, a message was
circulated among NDRA and NSA members that Vanilian forces were employing
civilians to counter the NDRA control. In the night of 9 June 2009, more than 500 Vanilian
forces were attacked when they moved into Losovo, but nonetheless managed to
come within 100 kilometres of Rizoba. Fierce fighting continued through the
night resulting in heavy casualties on both sides.
19. During the night of 10
June, NDRA fighters patrolling Rizoba and reinforcing their control over the
city took control of the VPF secretariat office. They found around 150 people,
including women and children, having taken their quarters in the building. Interrogated
by the NDRA, they replied that because of the continuing fear of attacks
against them, they had taken refuge in the secretariat's premises to spend the
night. After searching the premises, 16 Vanilia-manufactured weapons were found
in one of the rooms located at the back of the building. When questioned about
the weapons, the occupants said they knew nothing about them. The NDRA fighters
then separated the women and children, and took the men along with them. The next
morning, David Dabar declared that they had successfully thwarted an attempt of
Vanilian forces, wearing civilian clothing, taking shelter in the VPF
secretariat to imminently attack, in co-ordination with other forces entering
Losovo, the new government of Losovo.
20. On 11 June 2009, the 'Losovo
Messenger' daily published the details of 108 people who were taken into
custody by the NDRA during the night of 10 June. It further reported that the
details were provided by the family members who were there on that night at the
VPF secretariat and all were confirmed as not belonging to Vanilian forces. On the
same evening VPF members convened a press conference and introduced 12 members
who were reported to have escaped from the hands of the NDRA fighters. They declared
that they were ill-treated and subjected to severe beatings. When journalists
asked about the others that were taken away, they said they were doubtful
whether they were still alive. In response to these allegations, the NDRA
issued a statement that all those who were questioned on the night of 10 June at
the VPF secretariat were either active supporters of the Vanilian forces, if
not members thereof. It added that the NDRA had successfully thwarted the
attempt of Vanilian forces in the garb of civilians, and that they were no
longer in their custody. However, the NDRA failed to clarify the whereabouts of
those who were taken away. On 22
June 2009, newspapers reported that the human remains of 15 persons
were found in a suburban area. They were later identified as some of those who
were taken by the NDRA on 10 June.
21. In the last week of
June 2009, it was reported by the media that the camps, in which Lemis were
kept since the 10 February
2009, were evacuated and the people were allowed to go. It was
further reported that most had not returned to Rizoba. It was unclear whether
they had been prevented to return or did not wish to return because of the
security situation.
22. As the situation
worsened, on 6 July 2009,
the Minota Economic Forum (MEF), a regional organisation working for economic
co-operation in the region, appealed to all parties to restrain themselves and
to declare a ceasefire, and requested the United Nations Security Council to
intervene in the matter. It further invited the Vanilian government and the FDP to Geneva
to negotiate a solution to the conflict. The Vanilian government expressed its
willingness and nominated a ten-member delegation. The FDP
also expressed its willingness to send a delegation provided that the issue of
secession remained non-negotiable. The FDP
nominated its delegation headed by Mr William Tanatia, the Minister for Foreign
Affairs of the interim government of Losovo.
23. Meanwhile, both
Amnesty International and Human Rights Watch had reported violations of
international humanitarian law by both sides: killings, torture, displacement
of civilians, attacks on civilians and destruction of civilian property. At the
instance of several complaints to Office of the Prosecutor, the prosecutor of
the International Criminal Court (ICC) initiated proceedings against several
individuals from both sides of the conflict.
For the purpose of the
present case against David Dabar, the prosecutor decided to bring the following
charges against him:
I. David Dabar was charged, on 26 July 2009, with
the crime against humanity of 'deportation or forcible transfer of population'
under Article 7(1)(d) of the Statute of the International Criminal Court for acts committed during the incidents that
took place in Rizoba city on or about the 3 and 12 February 2009.
II. David Dabar was charged, on 26 July 2009,
with the war crime of 'taking of hostages' under Article 8(2)(c)(iii) of the
Statute of the International Criminal Court for acts committed during the
incidents that took place in Rizoba on or about 12 February 2009 and thereafter.
III. David Dabar
was charged, on 26 July 2009, with the war crime of 'killing' under Article
8(2)(a)(i) of the Statute of the International Criminal Court for acts
committed during the incidents that took place in Rizoba on or about 10 June
2009.
24. Based on the warrant
issued by the ICC Prosecutor, and confirmed by a pre-trial chamber of the ICC,
plain-clothed Vanilian security forces took David Dabar into custody from his
residence in Rizoba on 5
August 2009 and surrendered him to the ICC for trial.
PREPARATION OF THE BRIEF
You have been nominated to act
either the prosecution or defence for David Dabar in
relation to the THREE (3) charges above.
In preparing the brief, the counsels for both Prosecution and Defence are expected to establish the
following issues:
- The type
(s) of armed conflict that is applicable to the present case
- The Elements
of Crimes for each of the 3 charges against David Dabar based on the United Nations Doc. PCNICC/2000/1/Add.2 (2000)
- Written and oral arguments on behalf of the
Prosecution and Defence are to be confined to these THREE (3) charges
only.
- Other relevant
issues and jurisprudence that are applicable to the
present case
The following information are to be
noted:
- Vanilia is a party to the Four Geneva Conventions of
1949 and their two Additional Protocols of 1977.
- Vanilia ratified the Statute of the
International Criminal Court on 25 October 2006.
- Questions relating to jurisdiction of the
ICC need not be raised unless they are substantially linked to the merits of
the case.
- STATUTE
OF THE ICC: ELEMENT OF CRIMES
- Article 7 (1) (d) - Crime against humanity of deportation or
forcible transfer of population
Elements of Crimes
1. The perpetrator deported or forcibly transferred, without grounds
permitted under international law, one or more persons to another State or
location, by expulsion or other coercive acts.
2. Such person or persons were lawfully present in the area from which they
were so deported or transferred.
3. The perpetrator was aware of the factual circumstances that established
the lawfulness of such presence.
4. The conduct was committed as part of a widespread or systematic attack
directed against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the
conduct to be part of a widespread or systematic attack directed against a
civilian population.
- Article 8 (2) (c) (iii) - War crime of taking hostages
Elements of Crimes
1. The perpetrator
seized, detained or otherwise held hostage one or more persons.
2. The perpetrator
threatened to kill, injure or continue to detain such person or persons.
3. The perpetrator
intended to compel a State, an international organization, a natural or legal
person or a group of persons to act or refrain from acting as an explicit or
implicit condition for the safety or the release of such person or persons.
4. Such person or
persons were either hors de combat, or were civilians, medical personnel or
religious personnel taking no active part in the hostilities.
5. The perpetrator
was aware of the factual circumstances that established this status.
6. The conduct
took place in the context of and was associated with an armed conflict not of
an international character.
7. The perpetrator
was aware of factual circumstances that established the existence of an armed
conflict.
- Article 8 (2) (a) (i) - War crime of wilful killing
Elements of Crimes
1. The perpetrator killed one or more persons.
2. Such person or persons were protected under one or more of the Geneva Conventions
of 1949.
3. The perpetrator was aware of the factual circumstances that established
that protected status.
4. The conduct took place in the context of and was associated with an
international armed conflict.
5. The perpetrator was aware of factual circumstances that established the
existence of an armed conflict.
