vivek final

8/12/2019 Vivek Final

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Team 8

Defense Memorial

International Criminal Court

Intra Moot Competition

March 2011


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Original: English No: ICC

Before: International Criminal Court Moot Competition anel

!IT"#TION IN T$E !T#TE O% B#NC$"

IN T$E C#!E O%

T$E &O!EC"TO& '.B#NC$#


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Team No( 8


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T#B)E O% CONTENT!

)I!T O% #BB&E*I#TION!............................................................................................................ i

INDE+ O% #"T$O&ITIE!.................................................................. Error! Bookmark notdefined.

!T#TEMENT O% ,"&I!DICTION............................................................................................... iiv

!T#TEMENT O% %#CT!................................................................................................................ v

I!!"E! I!ED............................................................................................................................ vi

!"MM#&- O% #&."MENT!..................................................................................................... vii

BOD- O% )E#DIN.!.................................................................................................................. 1

#( ICC cannot e/ercise its urisiction o'er the case(................................................................... 1

B( In light of the protest mae 3 the state of Na4olia5 the case is not amissile efore the ICC( . 4

C( 6hether the ICC has po7er to e/ercise the retrospecti'e urisiction on the gi'en matter( o

...................................................................................................................................................... 7

D( The arrest an suseuent transfer of Mr( lucan9a to ICC is illegal(....................................... 9

E( The accuse is not guilt3 of follo7ing crimes:........................................................................ 12

-E&......................................................................................................................................... xii
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)I!T O% #BB&E*I#TION!

#rt( Article (unless otherwise noted, Art.

Designates articles of the Rome Statue)

Chamer Pre-Trial Chamber

%acts acts and Procedural !istor"

.enocie Con'ection #nternational Con$ection on the

Pre$ention and Punishment of the

Crime of %enocide, Dec &, '&, *

+..T.S. **, .

ICC #nternational Criminal Court

IC, #nternational Court of /ustice

IC&C #nternational Committee of Red Cross

ICT& #nternational Criminal Tribunal of

Rwanda

ICT- #nternational Criminal Tribunal of

ormer 0ugosla$ia

I)C #nternational 1aw Commission

No( umber

The !tatue The Rome Statue

The &ules Rules of Procedures and 2$idence

"D$& +ni$ersal Declaration of !uman

Rights

"N +nited ations

i


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INDE+ O% #"T$O&ITIE!

Cases

Arrest 3arrant of ' A4ril (Democratic Republic of the Congo$. Belgium), /udgment, #.C./. Re4orts

, Para.5'

..........................................................................................................................................

1

1

#CT0,Prosecutor$.Haradinaj, Case o. #T---T, /udgement (Trial Chamber), 6 A4ril ,

4ara

&. ............................................................................................................................................

................. 8

#CT0,Prosecutor$.Limaj, Case o. #T-6-77-T, /udgement (Trial Chamber), 6 o$ember 5, 4ara

5. .............................................................................................................................................

................ 7

#CT0,Prosecutor$. Tadic, Decision on the Defence 8otion for #nterlocutor" A44eal on /urisdiction,

9ctober '&&5, 4ara *.

.............................................................................................................................. 7

#nternational Court of /ustice, SS Lotus (rance$. Tur!e")5PC#/ '&* Series A, o. ', * Se4tember

'&*, :Cited asLotusCase;

...................................................................................................................... 5

#srael,#ichman, Su4reme Court,


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Ri'ard $.*nited States, +S Court of A44eal


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The 1ands of Palmas Arbitration, (&etherlands$. *nited States), '&, , R#AA &.............................5

Other Authorities

Antonio Cassese, The international criminal Court+ the ma!ing of the Rome statute issues, negotiations,

results, edited b" Ro" S. 1eeB in coo4eration with The Pro6, ''5,( nd

edition, )............................................. 1

Rome Statute

Art. '.

.......................................................................................................................................................1,3

Art ' ()........................................................................................................................................... 4

Article ' () (b)................................................................................................................................ 1

Art.' (6)

.......................................................................................................................................................1,2

Art. 5 (')(a)...................................................................................................................................... 9

article &(')....................................................................................................................................... 1

article &6........................................................................................................................................... 1

article '& (').................................................................................................................................... 1

article ''*.......................................................................................................................................... 1


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iii


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!T#TEMENT O% ,"&I!DICTION

The Prosecutor has a44roached the !onorable #nternational Criminal Court under Article 5 read

with Article '6 (a) of the Rome Statue. The Defendant res4ectfull" ob


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!T#TEMENT O% %#CT!

'. Co4eegua was an ancient countr" inhabiting three chief tribes namel", %ogo, @ancha and

Kawal. There has been occasional $iolence between @anchas and Kawals as there relations ha$e

been a4athetic. 3hen the #m4erial Autarch" of Lanadu was in 4ower, Co4eegua was madesub


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I!!"E! I!ED

'. 3hether the #CC has the


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!"MM#&- O% #&."MENT!

1( ICC cannot e/ercise its urisiction o'er the case(

The Court cannot eFercise its


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( The conflict has not een internationali4e o7ing to the participation of 'olunteers from

.ogolistan(

The 4artici4ation of $olunteers from %ogolistan is not go$ernmental in nature. The" were not

authoriNed b" the go$ernment of %ogolistan to do so. The 4artici4ants in this internal armed

conflict did not act on the behalf of %ogolistan state. The threshold of intensit" of $iolence in

this case is such that it is an internal armed conflict. There were onl" situations of internal

disturbances and tensions, such as riots, isolated and s4oradic acts of $iolence and other acts of

similar nature. The $olunteers come from %ogolistan did not ha$e an" le$el of organiNation.

The" were $olunteers who did not ha$e an" command structure. The $olunteers cannot be

regarded as agents of %ogolistan because their go$ernment did not su44ort their act b" an"

means. Therefore their actions cannot constitute an international armed conflict but constitute an

internal conflict.

;( The arrest an suseuent transfer of Mr( Bancha to ICC is illegal(

There are no reasonable grounds to belie$e that 8r. 1ucanIa has committed genocide, crimes

against humanit" and war crimes. Article 5 (') (a) remains unsatisfied. There is no necessit" to

arrest him 4ursuant to Art. 5 (') (b). %i$en the nature of his role as !ead of State, the accused

did not 4ose a risI of absconding and his arrest and detention was illegal because he was

arbitraril" arrested and detained b" the national authorities of the aNolia before being

transferred to #CC. !e was detained in naNolia for three months without learing the charges

against him and without being charged and his arrest warrant was written in the 2nglish language

which he did not understand. These grounds should $itiate the trial. The Chambers

authoriNation of the arrest of the Accused was not onl" unlawful but 4oliticall" insensiti$e and,

had the crime actuall" taIen 4lace, would ha$e been counter-4roducti$e.

viii


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a?5 crime against

$umanit3 uner #rticle @>1? >g?5 7ar Crimes uner #rticle 8>2? >? >/'iii? enliste in the

&ome !tatue(

There are elements that show the lacI of genocidal intent. The accused is not guilt" of crime

against !umanit" under Article *(') (g). 8r.1ucanIa had no Inowledge of the attacI as ne$er

ordered to carr" out such actions. There was no s"stematic and wides4read attacI carried out b"

other 4erson. The 4oint regarding direction against a ci$ilian 4o4ulation also fails to designate

these actions as crimes. The Defendant did not 4ossess the reMuisite mens rea necessar" to

designate their actions as crimes under Article *(') (g).

The go$t. would not be held liable under Article () (b) (F$iii) as there was no intention to

directl" attacI against masauri tribe 4eo4le. %o$t. was not in$ol$e in this tragic incident when

thousands of masauri citiNen died due to the as4h"Fiation. The atrocities and $iolence are a ruse

manufactured b" the masauri tribe itself and these are the artificial created situation b" the

masauri leaders themsel$es and their bigger 4lan is to create a situation of ci$il war and to to44le

the go$t. 8r. lucanIa had no intention to create this s"stematic situation.

i

x


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BOD- O% )E#DIN.!

#( ICC cannot e/ercise its urisiction o'er the case(

a? The ,urisiction ratio temporisis not estalishe accoring to #rt( 11(

#t is in dis4ute that thejurisdiction ratio temporis3has been established since the alleged crime

tooI 4lace in before '


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? The ,urisiction ratione materiaeis not estalishe in this case(

The defendant counsel would liIe to focus on the issue whether @anchas statement falls within

the range of incitement to genocide and has reached the standard set b" Article 5 (6) (e) which

could maIe him 4ersonall" liable of committing genocide or not. @ut it is noticeable that the

criminaliNation ma" run contrar" to the fundamental right to free eF4ression. A delicate line must

be drawn to determine which range it falls within. 8onths of tension in @anchu state maIes the

region such a dangerous 4owder Ieg, that a sim4le gesture of throwing awa" a cigarette could be

fatal. Promoting hatred, as the onl" significance in his statement, onl" inflames the alread"

intense situation, and thus has little $alue in its nature.

The modern and tolerant atmos4here of 4ress freedom in 8r. lucanIa is irrele$ant in determining the

criminal liabilit" of 8r. lucanIa. #t is onl" rele$ant when discussing the media liabilit" of inciting

genocide, 8r. lucanIa !erald for instance, in the inciting acti$it".*8r. lucanIas statement falls out

of the range 4rotected under the notion of free eF4ression. 8r. lucanIa was not eF4licitl" calling for

destruction of masauri 4eo4le. The accused was onl" against those 4eo4le who betra" the cause of his

great nation. There was no intention for ?full destruction of masauris 4o4ulation and it has not

reached the standard of genocide as 4rescribed in Article 7.#ncitement to genocide is not merel"

causing others to commit genocide. An intent as 4rescribed in Article 6&is needed. There must be a

4ro$oIing, eFhorting, or 4romoting others to engage in genocidal acts on 4ur4ose.

c? The Temporal ,urisiction is not estalishe in this case(

aNolia as the nationalit" of the accused is a non-state 4art" to #CC and is unliIel" to acce4t the

Courts


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? The preconitions 7hich are reuire as a must for the ICC to e ale to e/ercise its

urisiction are not fulfille accoring to #rt( 12(

A4art from the fundamental rule that States, b" becoming 4arties to the Statute, acce4t the


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3ith no factual bases for article '


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Com4lementarit" is laid down in 4aragra4h ' of the Preamble'5

as well as in Article ' of the

Statute'7

and is s4elled out in Articles '5, '*, ' and '&. Due to this 4rinci4le the Court is barred

from eFercising its


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? Buren of roof

#t is a well established 4rinci4le that bad faith cannot be 4resumed under international law.

aNolia has shown interest in 4rosecuting the 8r. lucanIa. #t is not to the aNolia authorities to

4ro$e that the" will conduct such 4rocedures as determined b" a44licable law. Trust has also

been acInowledged as basic 4rinci4les that guide #nternational 1aw (@#1D2R, '&', 4. &).6

The burden of 4roof of demonstrating that aNolia go$t. has not conducted an in$estigation or is

unwilling or unable of conducting a fair trial is u4on those alleging it. e$ertheless, there are

facts and e$idences that demonstrate that aNolia go$t. will indeed com4l" with its obligations

when tr"ing the 8r.lucanIa. aNolia state claimed that it is the $iolation of their so$ereignt"

when 8r.naIobi go$t. surrender 8r. lucanIa to the #CC as the state itself wanted to carr" out the

in$estigation against 8r. lucanIa.

f? The crimes committe in Na4olia o not ustif3 the action 3 the Court(

The Court shall determine the case is inadmissible where the case is not of sufficient gra$it" to

3#P9, Case o. D-565, .6Richard @uilder, The Role of Trust in #nternational 1aw, a$ailable at htt4=>>ssrn.com>abstract&'*', '&'.#CT0, 9rder granting lea$e for withdrawal of charges against %o$edarica, %ruban, /an


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C( The conflict has not een internationali4e o7ing to the participation of 'olunteers from

.ogolistan(

The #CC has no 4ower to eFercise the retros4ecti$e o4eration under article '' of rome statute of

#CC if crime is so heinous or serious than #CC has 4ower to eFercise the retros4ecti$e o4eration.The 4reamble rome statute recogniNed that such gra$e crime threaten the 4eace, securit" and well

being of the world.

1aw must not im4ose criminal liabilit" for acts that were not criminal offence at the time the"

were not criminal offence at the time the" were committed but where crime is more heinous or

serious or against the huminit", the court has discretionar" 4ower to a44l" retros4ecti$e

o4eration.

or the su44orting of argument

A new law is alwa"s enacted in the 4ersuasion that it is better than the former one. #ts efficac",

therefore, must be eFtended as far as 4ossible, in order to communicate the eF4ected

im4ro$ement in the widest s4here.'

3illiams 4oints out that the 4rinci4le of non-retroacti$it" is associated with the retributi$e theor"of 4unishment, as o44osed to the deterrent theor". #f 4unishment is


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28 This theor" of law-maIing was reified in the much-criticised amendment of the %erman Criminal Code b"the aNis

at the time that the" were committed, that is, where the wrongdoer has transgressed the natural

law

According to 3illiams, a number of eminent


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D( The arrest an suseuent transfer of Mr( lucan9a to ICC is illegal(

The arrest and subseMuent transfer of 8r. lucanIa to #CC is illegal under article & of the Statue,

#CC case law6and customar" international law.

a? The information sumitte 3 the rosecutor oes not meet the reuirements to issue an

arrest 7arrant.

1? There are no reasonale grouns to elie'e that $ea of !tate Mr( lucan9a has

committe genocie5 crimes against humanit3 an 7ar crimes(

According to Art. 5 (') (a), before the Pre-Trial Chamber issues an arrest warrant, it shall beensure that there are reasonable grounds to belie$e that the accused 4erson has committed a

crime within the 5-'>&, 8arch &.6'Art. 5 (') (a).6Lubanga, /udgement on the A44eal against the decision on the Defence Challenge to the /urisdiction of the Court4ursuant to Article '& () (a), Case o= #CC-'>-'>7, ' December 7.66

9
http://www.icc-cpi.int/Menus/Go?id=90ee1a29-75c8-4834-8b34-56355b0c35f8&lan=en-GB


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clearl" distinguished. Article 5 (') (a) remains unsatisfied. An" 4ossible grounds are based on

an eFtract of highl" dis4uted and unreliable e$idence, as well as se$eral coincidental e$ents.

Such e$idence cannot 4ossibl" amount to reasonable grounds that would suffice to 4ro$ide

e$idence of the occurrence of a crime within


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0


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in$iolable and cannot be arrested in an" foreign states. +nder international customar" law, both

of the states i.e. @anchu and %ogolistan ha$e the obligation of immunit". #C/ held inDRC$.

Belgium that high-ranIing state officials are immune from the domestic


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E( The accuse is not guilt3 of follo7ing crimes:

a? The accuse is not guilt3 of crime of .enocie uner #rticle = >a? of the &ome !tatue(

!ead of aNolia state has not 4ursued a 4olic" of genocide under Art. 7 (a) of the Rome Statue.

The %enocide Con$ention of '& and the corres4onding customar" international rules reMuire a

number of s4ecific ob1? >g? enliste in the

&ome !tatue(

To establish a crime against humanit" which would bring the defendant under


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such an" act. 8oreo$er, a wides4read attacI is ?understood as reMuiring large-scale action

in$ol$ing a substantial number of $ictims while the term s"stematic was ?understood as

reMuiring a high degree of orchestration and methodical 4lanning. #n this case, neither of these

reMuirements is met. . There eFists no e$idence in the record which would indicate that the

soldiers were aware of such a s"stematic attacI, e$en if one eFisted. The second 4art of the

threshold test, direction against a ci$ilian 4o4ulation also fails to designate these actions as

crimes under Article *. There was no cons4irac" hatched b" the national census de4artment to

Iill the residence of 2? >?>/'iii? enliste in the &ome

!tatue(

8r. lucanIa go$t. would not be held liable under Article () (b) (F$iii)6*

as there was no

intention to direct attacI against buildings dedicated to religion. The" were conducting the raid

against the rebels near the town of @oIato. The rebels were hiding in the ca$es which were

around 5 meters awa" from the ancient Cal"4so tem4le, a world heritage site declared b"

+2SC9. There was no intention to direct attacI against the tem4le. The" onl" want to finish

off the militants. The tem4le was not damaged intentionall" but it was during the course of the

raid, the tem4le structure was badl" damaged b" bombing. This act is also done with militar"

ob


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distance of 5 meters from these buildings and then fired mortar shells on the Rebels. The"

ha$e also no intention to utiliNe the 4resence of these ci$ilians. #t


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-E&

3herefore, in the light of the Muestions 4resented, arguments ad$anced and authorities cited,

counsel on the behalf of the Defendant reMuests this !onble Court to find, ad

vivek final

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