III. THERE IS INSUFFICIENT EVIDENCE TO CHARGE AMIR OF THE WAR CRIME

OF TREACHEROUSLY KILLING OR WOUNDING COMBATANT ADVERSARY

ON THE BASIS OF INDIVIDUAL CRIMINAL RESPONSIBILITY.A. S UCH PERSON OR PERSONS DID NOT BELONG TO A C OMBATANT ADVERSARY .

“Combatant adversaries” are persons belonging to armed forces or armed groupsof a party to the conflict or taking active part in hostilities.1 According to ¶12, !!" is not

a combatant adversary by virtue of #esolution $ %hich mandates it to protect civiliansand civilian populated areas under threat of attack in Alin and to maintain securitytherein.2

&he '(, under sec. )*, Chapter + of the '( Charter, is authori ed to intervene

in armed conflicts to defend the interest of protected persons, including but not limited tocivilians.- , According to the Convention on the !afety of '(A , the '( forces are not

party to the armed conflict) on %hich Alin, and all other !tates participating in the !!",

are !tate arties as confirmed in the Additional (otes in the compromis. / &herefore, not being an adverse party %hich is an essential element of the %ar crime of treacherouslykilling or %ounding one or more persons under Article 0 2 b 3i number /, 4en. Amir

should not be charged for such.B. A MIR IS NOT INDIVIDUALLY LIABLE ON THE BASIS OF ORDERING .

n the case of rosecutor vs 4bagbo, 5rdering refers to a conduct by %hich a

person is influenced by the other to commit a crime.6 n the case of rosecutor vs 7ordic,

this Court ruled that the mens rea for ordering may be lo%er than direct intent.* Also it

1 89,p.)0

2 "acts,¶12

3 '(.Charter.!ec.)*

4 Convention.on.the.!afety.of.'(A

5 "acts,Additional.(ote

6 4bagbo,¶21/, &:

7 7ordic,¶-;,A:

that case, it %as emphasi ed that, “the kno%ledge of any kind of risk, ho%ever lo%, does

not suffice for the imposition of criminal responsibility for serious violations of international humanitarian la%. n this case, 4en. Amir is no longer a person in a

“position of authority” %ith respect to those %ho committed the surprise attacks.n rosecutor vs Akayesu, “ordering implies a superior<subordinate relationship”

%hereby “the person in a position of authority uses it to convince or coerce another to

commit an offence”.0 As stated in the case of rosecutor vs =barushimana, a position of

authority re>uires hierarchical ascendancy that enables one person to command another to commit an act certain.? n the case of rosecutor vs =udacumura, a person in position

of authority needs to have prior kno%ledge of the attack in order to be held liable.1; n light of the said @urisprudence, 4en. Amir had no prior kno%ledge of the attack

as stated in ¶2).11 =ore importantly, ¶1 states that 4en. Amir is the head of the A "12

%hile it is made clear under ¶2) that the assailants are militants outside the A "1-,andtherefore not under the control of 4en. Amir. ¶2) also sho%s that mad =ousseBs

statement that the attack %as coordinated and planned by A " is debunked by the fact

that as reported by 8uman #ights rotection, the attack %as carried out by an A " unit

%hich had broken a%ay from the A " itself. 1) n the case of rosecutor vs emba,

evidences supported by (45s must be given credence by this Court specially that the

8 Akayesu,¶)0-,&:

9 =barushimana,¶1;), &:

10 =udacumura,¶6-, &:

11 "acts,¶2)

12 "acts,¶1

13 "acts,¶2)

14 "acts, ¶2)

>uantum of evidence in the confirmation stage is not as heavy and e3acting as that in thetrial itself.

¶2) also clearly sho%s that 4en. Amir did not instruct another person in any formto commit a crime %hich in fact occurs or is attempted. 4en. Amir is not liable as he didnot e3pressly order Col. Adada to conduct the surprise attacks under the guise of treachery.

n fact, ¶21 sho%s that during a staff meeting in 5rkan, %here Col. Adada %as present, 4en. Amir demanded that “measures be taken to end the illegal occupation of theinternational force”1/. 8o%ever, he did not give any specific instructions as to ho% themeasures %ere to be carried out. &hus, he influenced no one to commit a crime if at allthere %as.

15 "acts, ¶21