HCMULaw Moot Court Competition 2015
Prosecutor vs. Mr. Thomas Bemto
before the International Criminal Court at the Hague
INSTRUCTIONS
1. The hearing takes place pursuant to Article 61 of the Rome Statute (confirmation of
charges). At this stage, the Prosecutor has to “support each charge with sufficient evidence to
establish substantial grounds to believe that the person committed the crime charged.”
2. The case is entirely fictional. Teams should confine themselves to the facts supplied.
Neither the Prosecution nor the Defense may introduce new facts. The Moot Problem includes
all the facts supported by the evidence that has been presented before the Court. Teams may
nonetheless draw reasonable inferences from the evidence produced. They may also question
the credibility or weight of the evidence.
3. Teams should not hand anything to judges unless asked to by a judge.
4. The problem is not intended to raise questions of procedure before the ICC.
Procedural questions should be ignored.
5. The problem is not intended to raise questions relating to the jurisdiction of the ICC.
The jurisdiction of the ICC should be assumed. Counsel may in this instance address issues
regarding the admissibility of the case under Article 17 of the Rome Statute if relevant.
6. Applicable law: In accordance with Article 21 of the Rome Statute, the Court shall
apply:
a) In the first place, the Rome Statute, Elements of Crimes and its Rules of Procedure
and Evidence;
b) 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;
c) 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.
The Court may apply principles and the rules of law as interpreted in its previous
decisions.
THE CASE
Background
1. The Federal Republic of Utopia (FRU) once consisted of two republics, namely
Nordland and Sudland. Nordland is located to the north of Sudland. In 1980, the FRU
disintegrated with the two FRU constituent republics becoming independent States. The
capital of Nordland is Nordville and that of Sudland is Sudville.
2. The population in Sudland is mainly composed of two ethnic groups with different
languages and religions. The Sudlandians, which make up 75% of the population, and ethnic
Nordlandians. The majority of the latter community lives in Crimania, which is located in the
northern part of Sudland bordering Nordland. Until 2010, Crimania was under Sudland
control, although it enjoyed complete autonomy in managing its internal affairs. The
Sudlandian central government was in charge of its defence and foreign affairs.
3. Sudland is blessed with vast natural resources such as oil and minerals. It had been
one of the most developed regions of the FRU well before its independence. Between 2002
and 2010, Sudland was ruled by a military government led by General George Belisaris and
General Thomas Bemto, with General Belisaris acting as the country’s President. During this
period, General Bemto chaired the powerful Crisis Military Commission, which acted as the
de facto government of the country. General Bemto also acted as Commander-in-chief of the
People’s Army of Sudland (PAS) and the Sudlandian police. Since 1990, Sudland adopted a
new policy which prompted the growth of a successful high-tech industry and led to
unprecedented economic growth in recent years.
4. However, Crimania, where ethnic Nordlandians constitute nearly 90% of the
population, is generally lagging behind in terms of development. The situation in Crimania is
blamed partly on its remote location, but also because of governmental policies. The
Sudlandian government has long accorded preferential treatment to ethnic Sudlandians and
enterprises in various sectors. The rate of higher education in Crimania has been the lowest
compared to other regions. Ethnic Nordlandians felt marginalized and resentment towards the
Sudlandian central government.
5. Nordland has a homogenous population. Nordlandians speak the same language and
share similar cultural practices with their fellow Nordlandians in Crimania. Therefore, since
its independence, Nordland has been contesting Sudland sovereignty over Crimania.
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President Andrew of Nordland was elected in 2006. Benefiting from a large and young
population, labor-intensive industries in Nordland have grown rapidly. Many Nordlandians
also started doing business in neighboring countries such as Sudland. Although Nordland is
not as wealthy as Sudland, it is regarded as an emerging economic power.
Operation Shield
6. In January 2010, Nordland was struck by a political crisis which led to large-scale
civil unrests against the Andrew government. In order to divert the population’s resentment
towards the government, President Andrew ordered the Nordland Armed Forces (NAF) to
take control of Crimania. On 12th January 2010, the NAF invaded Crimania and quickly
gained control of Cappa, the capital city of Crimania, with no armed resistance.
7. On 15th January 2010, the NAF obtained surrender from the Governor of Crimania.
A Military Administration was established to govern Crimania under the supervision of the
NAF. On the same day, General Belisaris vividly condemned Nordland’s “act of aggression”
and seized the United Nations Security Council. The Sudlandian ambassador and the
diplomatic staff in Nordville were immediately called back to Sudland. On the following day,
the Sudlandian government severed all diplomatic relations with Nordland.
8. On 22nd March 2010, General Belisaris approved “Operation Shield”, which was
suggested by the Crisis Military Commission. It aimed at regaining control of Cappa. General
Bemto was in charge of the operation. General Belisaris, who was running for election,
instructed General Bemto that “We have to win this war quickly. Crimania is either a gain or
a pain for the election campaign.”
9. In an internal meeting of the Crisis Military Commission, there was a general
agreement that recapturing Cappa was the utmost priority. It was decided that artillery attacks
and air strikes would be used to “shock, disorient, disrupt the Nordlandians,” before
undertaking the takeover of the city.
10. On 27th March 2010, General Bemto ordered the PAS to engage in a vigorous attack
with artillery and air support. On 27th and 28th March 2010, hundreds of projectiles were fired
into Cappa. According to local media news channels, “there seemed to be bombs exploding
all over the city.” With the support of the air strikes and artillery shelling, the main force of
the PAS took control of the western part of Cappa. The rest of the city remained under the
control of the NAF.
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City hall of Cappa’s takeover
11. The PAS forces eventually gained control over Cappa on 1st April 2010. However,
the PAS faced with strong resistance from the local Nordlandians community.
12. Jeanne Blanche, a 50-year-old Professor of Political Science at the University of
Cappa, was an outspoken supporter of the incorporation of Crimania to Nordland. Since 2007,
she had made several speeches prompting Nordlandians to “defend Crimania to the last man.”
She was also one of the leaders of the “Occupy Cappa”, a civil disobedience campaign against
the Sudlandian government.
13. On 4th April 2010, the “Occupy Cappa” protesters occupied the city hall of Cappa.
General Bemto issued a public announcement to protesters to clear the hall within two hours:
“If by 6 p.m. the lawlessness doesn’t cease, we shall be forced to use all means to bring order.”
Nevertheless, the riot police encountered violent resistance from the protesters. According to
the Sudland State-owned newspaper Bevestia, opposition activists armed with bats and iron
rods allegedly beat two policemen to death. They also used improvised weapons such as axes
and hammers.
14. Following the warning from General Bemto for all women and children to leave the
city hall, police advanced on thousands of protesters with guns, a water cannon and an
armored personnel carrier. Tents housing protesters were burned. Police justified their actions
by stating they were conducting operations in an anti-terror campaign against “individuals
who had clearly armed themselves.”
15. Later at night, it was reported that police had broken through the protesters’
barricades on the eastern side of the city hall. Protesters threw fireworks and petrol bombs,
and lit fires to block off police. The building was then occupied by police forces, and the 3rd
floor was set on fire. The fire then spread to the 4th floor, with people trapped inside;
firefighters then arrived to help. Four protesters were killed by police when storming the
building, as reported by a Nordlandian journalist via Twitter. The staff in the city hall later
confirmed there were no deaths due to the fire, and the building was evacuated.
16. The spokesman of General Belisaris stated that “calling further for armed conflict is
a great crime.” General Bemto also stated in a press conference that “Organizers of mass
protests will be held accountable. We will demand the heaviest punishment both for those
who revved people up to take part in today’s action and for those who organized and
controlled them.”
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17. In the early morning of 5th April 2010, the wounded were sent to the Cappa Hospital.
Bevestia reported that 65 activists were killed and 180 injured. Among the Sudlandian police,
7 were killed and 20 injured, 3 of them in serious condition.
18. The Nordville Daily Express, a famous newspaper in Nordland, subsequently
published a series of interviews with some of the protesters. One of them, Susan Aung, said
that the Sudlandian police were “shooting indiscriminately at innocent civilians.” She claimed
that she was holding a banner and “peacefully” protesting with others, when bullets came at
their direction and one of the protesters was shot dead right in front of her. A priest from
Sudland said bullets were flying around and at some points he could no longer tell whether
they were from the police or the protesters.
Treatment in the Bergen Prison
19. At the end of April 2010, ten students of Professor Blanche were arrested by the
Sudlandian police while distributing leaflets in public places. She was herself arrested on 1st
May 2010 after the declaration of a state of emergency.
20. Professor Blanche and her students were detained in the Bergen Prison, one of the
most controversial prisons controlled by the Sudlandian police. Ever since her first day in
detention, Professor Blanche had been protesting her arrest and advocating freedom of speech.
On 13th May 2010, Professor Blanche embarked on a hunger strike, only sipping water from
time to time.
21. The news of her hunger strike soon got through to the major media in Nordland and
Sudland. President Andrew termed Blanche as a “national hero” and awarded her a medal
“for her extraordinary valor.” In the meantime, other detainees started to join the hunger
strike. By 17th May 2010, 16 detainees were on strike. Sudlandian authorities, pushed by the
international attention that the strike was attracting, pressed General Bemto to solve the issue.
He then appointed Ervine Bric as a warden to supervise all the operations in the Bergen Prison.
Bric sent a letter to General Bemto, stating that “Something needs to be done. We started to
lose control ever since Blanche was here.”
22. On 24th May 2010, after consultation with General Bemto’s staff, Bric decided to
put Professor Blanche and some of her students in solitary confinement for a month. They
were denied communication with others, except medical professionals in case of emergency.
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23. Professor Blanche was finally released on 2nd July 2010 right before the closing of
Bergen Prison. She then gave an interview to Global News, an independent newspaper. “Since
I left Bergen, I have not been able to sleep without sleeping pills. It is terrible,” Blanche said,
“They get what they want without having to hit me.” One of her students added that there
were at least 4 halls, approximately 12 cells per hall, and a separate row of solitary cells for
female detainees. The cells measured about 2 meters, with a ceiling height of about 4 meters.
A light at the top of the cell (about 40 Watts) was on 24 hours a day. Each cell has a toilet and
a sink inside. The floor was made of what most prisoners described as chalk. Prisoners were
generally given a blanket, a pair of slippers, and a disposable cup. The walls of the cell were
all white. Some prisoners were granted 20 minutes a day in a caged outdoor area, but others
never saw the open air except on their way to and from the Court. “After all this time, I would
mark the days on the wall. On the fifteenth day, they threw my clothes into my cell and drove
me out. I saw sky. I told the sky that I appreciated it now,” he concluded his story.
Referral to the International Criminal Court
24. At the end of 2010, the Belisaris government was discredited and eventually had to
step down. Nordland and Sudland reached a ceasefire agreement under the auspices of the
United Nations. Following the election of a new government, General Bemto was placed
under house arrest for suspected crimes committed against the people in Crimania. In May
2011, Nordland and Sudland agreed to jointly refer the situation between 1st January and 31st
December 2010 of Crimania to the International Criminal Court. However, the status of
Crimania has not yet been definitively agreed upon.
25. The Pre-trial Chamber now holds a hearing to confirm the following charges on
which the Prosecutor intends to seek trial. The hearing is held in the presence of the Prosecutor
and Mr. Thomas Bemto, as well as his counsel.
Count One
Article 8(2)(b)(i) and Article 25(3)(a) of the Rome Statute
Regarding the conduct against the protesters occupying the city hall of Cappa, Mr.
Thomas Bemto is criminally responsible for committing, as an individual, jointly with another
or through another person, the war crime of intentionally directing attacks against the civilian
population as such or against individual civilians not taking direct part in hostilities;
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Count Two
Article 8(2)(a)(ii) and Article 28(a) of the Rome Statute
Regarding the treatment of detainees in the Bergen Prison, Mr. Thomas Bemto, as a
military commander, is criminally responsible for the war crime of torture or inhuman
treatment of persons protected under the provisions of the relevant Geneva Convention.
NOTE
Participation to treaties
At all material times, the following treaties were in force for Nordland and Sudland:
 United Nations Charter
 1949 Geneva Conventions and their 1977 Additional Protocols I & II
 1966 International Covenant on Civil and Political Rights
 1966 International Covenant on Economic, Social and Cultural Rights
 1969 Vienna Convention on the Law of Treaties
 1984 United Nations Convention against Torture
 1998 Statute of the International Criminal Court
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