UNIVERSITY OF SAINT LA SALLE (USLS)

COLLEGE OF LAW

Team Members:
KEVIN DANIEL LOCSIN RAMOS
CHRISTJOHN VILLALUZ
WILLIAM AZUCENA
GINN UNDAR

THE PROSECUTOR
v.
COLONEL XANDER RIVIA

MEMORIAL FOR THE DEFENDANT

Word Count : 1,960

1.1 The Court has jurisdiction over this case. The Defendant recognizes the prima facie
jurisdiction of this Court but submits that there is insufficient evidence to establish
substantial grounds to believe that he committed the crimes as charged.1 The Pre-Trial

Chamber should decline to confirm those charges on grounds of insufficient evidence.2

1.2 The case is inadmissible under this Court’s Statute. Article 17(1) of the Statute states
that this Court must declare a case inadmissible if: (a) the case is being investigated or
prosecuted by a State which has jurisdiction over it and (b) the case has been investigated
by a State which has jurisdiction over it and the State has decided not to prosecute the
person concerned. The defendant declared that an investigation is ongoing in Banksia and
the action brought before this Court is premature.3

1.3 There is no proof that Banksia is unwilling or unable to prosecute this case.4 There has
been no unjustified delay in the proceedings or circumstances inconsistent with intent to
bring the person concerned to justice. There is no proof that there has been a total or
substantial collapse or unavailability of Banksia’s national judicial system to effectively
hold the person concerned criminally responsible. It is in the interest of justice and fidelity
to the raison d etre of the Court5 that the case be declared inadmissible.

2. FIRST COUNT

2.1 The war crime of torture or inhumane treatment was not committed against the
prisoners held by Banksia in Rosebud as indicated in Art. 8(2)(a)(ii)(1-2) of this

1
Rome Statute, Art. 61(7)
2
Id., Art. 7 (b)
3
Moot Problem, ¶3.20
4
Rome Statute, Art. 17, ¶2-3
5
Id., Preamble

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 Court’s Statute. There is no evidence that the trials conducted caused severe physical or
mental pain or suffering nor was there a purpose of obtaining information or a confession,
punishment, intimidation or coercion or for any reason based on discrimination of any
kind.6

2.2 The war crime of biological experiments was not committed. The Rash vaccine
testing does not fall within the purview of a biological experiment as indicated in Art. 8
(2)(a)(ii)(3) of this Court’s Statute. The procedure was clearly therapeutic in nature and did
not endanger the health of the persons concerned. The patients were rendered sick with an
illness known to be incurable.7 Doctors are not prevented from using new forms of
treatment or “a new cure on a person who definitely could not be cured through known
methods.”8

2.3 The procedure was warranted by their existing medical condition and was carried out in
observance of ethical principles on bio-medical research experiments.9 The Rash Vaccines
were subjected to prior animal trials before they were tested on the human subjects in
conformity with the principles to be observed when performing medical experiments.10
The prisoner-patients freely and intelligently gave their consent, with full

6
ICC Elements of Crimes, ICC-ASP/1/3 at 108, U.N. Doc. PCNICC/2000/1/Add.2 (2000), Art.
8(2)(a)(ii)(1-2)
7
Moot Problem, ¶2.5
8
Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols
of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC, Martinus Nijhoff,
Geneva, 1987), Article 11(2) AP 1, p. 157
9
International Ethical Guidelines for Biomedical Research Involving Human Subjects, (Council
for International Organizations of Medical Sciences (CIOMS) in collaboration with the World
Health Organization (WHO), Geneva, 2002), p.17
10
Knut Dörmann, Elements of War Crimes under the Rome Statute of the ICC, Sources &
Commentary, Cambridge University Press, ICRC [2004]; Trials of War Criminals before the
Nuremberg Military Tribunals under Control Council Law No. 10, vol. I

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 knowledge of the possible consequences of the vaccine trials. Thus, they were able to
exercise their capacity for self determination.11

2.4 The defendant cannot be held liable through superior responsibility. Biological
experiments are a form of inhumane treatment where the mens rea required is intent to
humiliate or ridicule the victim.12 The intent behind the trials was to find a definitive cure

for the Rash.13

2.5 The knowledge requirement is likewise not satisfied. This Court’s Statute requires that the
superior must have either known, or consciously disregarded information which clearly
indicated, that the subordinates were committing or about to commit crimes.14 The French
version is even clearer in requiring that the superior “deliberately neglected to take into
account” the information (“delibérément negligé de tenir compte d’informations”). The
defendant has not been shown to have that knowledge nor could he be presumed to possess
such.15 Acting on his own, Gen. Talent directed and allowed vaccine testing on Lantana

prisoners without directly seeking approval of the defendant.16 Absent such knowledge or
clear information that crimes were being committed, the defendant cannot be expected to
prevent or punish the same.

11
Moot Problem, ¶3.7
12
An introduction to the International Criminal Court, (ICRC, William A. Schabas, 2004), pp.
145, 146.
13
Moot Problem, ¶3.5
14
Rome Statute, Art. 28(b)(i); The Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial
Judgement), ICTR-95-1-T, International Criminal Tribunal for Rwanda (ICTR), 21 May 1999,
¶225-228
15
Prosecutor v. Zdravko Mucic aka "Pavo", Hazim Delic, Esad Landzo aka "Zenga", Zejnil
Delalic (Trial Judgement), IT-96-21-T, International Criminal Tribunal for the former
Yugoslavia (ICTY), 16 November 1998, ¶386
16
Moot Problem, ¶3.6; 3.7

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 2.6 The mens rea required to establish superior responsibility must be so serious that it is
tantamount to malicious intent, apart from any link between the conduct in question and
the damage that took place.17

2.7 In the alternative, when it did appear that there may have been irregularities related to the
vaccine trials, the defendant immediately called for an internal investigation regarding the
matter.18 Thus, the defendant has complied with his obligation to submit the matter to

competent authorities for investigation.19

3. SECOND COUNT

3.1 The war crime of using persons under the age of 15 years to participate actively in
hostilities punishable under Article 8(2)(b)(xxvi) of this Court’s Statute was not
committed. The PVF militant who presented the child volunteers to the military officer
submitted release forms signed by the volunteers’ parents indicating that they were 16 years
of age.20 Article 77(2) of Additional Protocol 1 allows children who have already attained
the age of 15 years to participate in hostilities.

3.2 Even assuming that the volunteers were under the age of 15 years, still there was no war
crime committed. The obligation to refrain from recruiting children does not explicitly
mention the refusal of enrolment of children below 15 years to participate and make
indirect contributions in cases where (1) the children voluntarily present themselves and
(2) in exceptional cases such as invasion.21

17
Commentary on the Additional Protocols of 8 June 1977 (supra), pp. 157, 1012
18
Moot Problem, ¶3.20
19
Rome Statute, Art. 28(b)(iii)
20
Moot Problem, ¶3.12
21
Commentary on the Additional Protocols of 8 June 1977 (supra), ¶3184. Where in the next
paragraph the Commentary further said: “It is difficult to moderate their enthusiasm and their
will to fight.”

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 3.3 This Court, in Prosecutor v. Lubanga-Dyilo, qualified when indirect participation (i.e.
intelligence work) can be considered active participation.22 The contribution of the youth
volunteers cannot be considered as active participation in hostilities, as they were not
directly exposed to danger without means to protect themselves. The Banksia military
officers sufficiently prepared the youngsters for the mission. They were briefed and
supplied with the necessary military equipment for the mission. Being graduates of the
boot camp, they have undergone the proper military training that would enable them to
protect or defend themselves in case of danger. The mission was specifically directed at
mere information gathering. It was accomplished within a brief period of time and they
were able to return and report back immediately.23 The youth volunteers were not exposed
to unnecessary risk or danger.

3.4 Assuming the war crime was committed, the defendant cannot be individually criminally
liable for its commission. For liability to attach under Article 25 (3) (a) of this Court’s
Statute, it must be proven that the person had the intention to engage in the conduct, or that
the person meant to cause a consequence or was aware that it will occur in the ordinary
course of events.24

3.5 No specific and direct orders were given by the defendant nor was there evidence of intent
on his part that youngsters below the age of 15 years be enlisted in the war.25 The defendant
approached the PVF to look for volunteers to gather information on Lantana’s

22
(ICC-01/04-01/06), International Criminal Court (ICC) Trial Chamber I, Summary of the
“Judgment pursuant to Article 74 of the Statute”, March 14, 2012, ¶24: “The decisive factor,
therefore, in deciding if an “indirect” role is to be treated as active participation in hostilities
is whether the support provided by the child to the combatants exposed him or her to real
danger as a potential target.”
23
Moot Problem, ¶3.12
24
Rome Statute, Art. 30(2).
25
Moot Problem, ¶3.11

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 positions.26 PVF is composed of young adults aged sixteen and older, most of whom were
able to complete boot camp training.27 By approaching the PVF, the defendant eliminated
the risk that children under 15 years would be used in Banksia’s military activities.

4 THIRD COUNT

4.1 The war crime of employing weapons, projectiles or materials or methods of warfare
listed in the Annex to the Statute punishable under Article 8(2)(b)(xx) of this Court’s
Statute was not committed. To be effectively adjudicated, crimes must be clearly defined
to avoid violations due to ignorance of the law or mistake of law. The definition of a crime
shall be strictly construed and shall not be extended by analogy.28 In case of ambiguity, it
shall be interpreted in favour of the defendant.

4.2 Assuming arguendo that a crime has been committed, the defendant cannot be held
individually criminally responsible. While the 1925 Geneva Protocol was annexed to the
Statute, the absence of biological weapons in the Elements of the Crimes raises a question
of legality.29 Nullum crimen sine lege. The defendant was not fully and timely apprised of

the elements of the crime,30 and thus the intent to commit a war crime is non-existent. The
mens rea of an aider and abettor is established only when there is evidence that he was
aware of the essential elements of the crime which was ultimately committed by the
principal.31

26
Moot Problem, ¶3.11
27
Id., ¶2.13
28
Rome Statute, Art. 22(2)
29
Id., Art. 22
30
Moot Problem, ¶3.5; ¶3.9
31
Prosecutor v. Zlatko Aleksovski (Appeal Judgement), IT-95-14/1-A, International Criminal
Tribunal for the former Yugoslavia (ICTY), 24 March 2000, ¶162

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 4.3 Defendant’s act was justified by valid military necessity. Imperative military necessity
has allowed for specific derogations of provisions in the Geneva and Hague Conventions.32
The SPV-1 was used as a means of last resort and therefore if it be deemed a war crime,
the defendant must be exempt from criminal liability. The situation of Banksia, such that
with its territorial integrity imperilled, likewise the health and safety of its citizenry
critically compromised, without assistance from the international community, there was no
other recourse but the use of SPV-1 for self-defence.33

4.4 While Banksia did not make any reservation upon signing the 1925 Geneva Protocol, the
reservation made by Lantana justified the effects of negative reciprocity. Lantana's first use
of the Rash virus as a weapon to ensure military advantage over Banksia effectively lifted
the prohibition on the latter to use the same, for reprisal and self-defence.34

5 PRAYER

5.1 It is respectfully submitted that there is no sufficient evidence to establish substantial

All of which is humbly prayed,

Counsels for the Defendant

32
Handbook on the Law of War for Armed Forces, (ICRC, Frederic De Mulinen, 1987), p. 83
33
Rome Statute, Art. 31(1)(c)
34
Constraints on the Waging of War, (ICRC, Frits Kalshoven and Liesbeth Zegveld, March
2001), p. 145

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