Team 8 Defense Memorial

International Criminal Court

Intra Moot Competition March 2011

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$#

Team No( 8

T#B)E O% CONTENT!

)I!T O% #BB&E*I#TION!............................................................................................................ i INDE+ O% #"T$O&ITIE!..................................................................Error! Bookmark not defined. !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 0uris1iction o'er the case(................................................................... 1
B( In light of the protest ma1e 23 the state of Na4olia5 the case is not a1missi2le 2efore the ICC( . 4

C( 6hether the ICC has po7er to e/ercise the retrospecti'e 0uris1iction on the gi'en matter( o

...................................................................................................................................................... 7
D( The arrest an1 su2se8uent transfer of Mr( lucan9a to ICC is illegal(....................................... 9 E( The accuse1 is not guilt3 of follo7ing crimes:........................................................................
12

&#-E&......................................................................................................................................... xii

)I!T O% #BB&E*I#TION! #rt( Article (unless otherwise noted, Art. Designates articles of the Rome Statue) Cham2er %acts .enoci1e Con'ection Pre-Trial Chamber acts and Procedural !istor"
#nternational Con$ection on the

Pre$ention and Punishment of the Crime of %enocide, Dec &, '&(), *) +.,.T.S. -**, -).. ICC IC, IC&C ICT& #nternational Criminal Court #nternational Court of /ustice #nternational Committee of Red Cross #nternational Criminal Tribunal of Rwanda ICT#nternational Criminal Tribunal of ormer 0ugosla$ia I)C No( The !tatue The &ules "D$& #nternational 1aw Commission ,umber
The Rome Statue Rules of Procedures and 2$idence

+ni$ersal Declaration of !uman Rights

"N

+nited ,ations

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 (&. ............................................................................................................................................ .................

#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")5 PC#/ '&-* Series A, ,o. '., * Se4tember '&-*, :Cited as Lotus Case; ...................................................................................................................... 5 #srael, #ichman, Su4reme Court, <udgement of -& 8a" '&7-, 2nglish translation in 67 #1R. .................... 5 Lubanga, /udgement on the A44eal against the decision on the Defence Challenge to the /urisdiction of the Court 4ursuant to Article '& (-) (a), Case ,o= #CC-.'>.(-.'>.7, '( December -..7. ...................... 9

Prosecutor $. Blas!ic, #T-&5-'( /udgement, 6 8arch -... (hereinafter ?The Blas!ic $udgement%) Declaration of /udge Shahabuddeen. ........................................................................................................

Prosecutor $. &ahimana et al., (Case ,o. #CTR-&&-5--T) 6 December -..6 ............................................. 2 Prosecutor '. (mar Hassan )hmad )l Bashir, Decision on the Prosecutors A44lication for a 3arrant of Arrest against 9mar !assan Ahmad Al @ashir, Public Redacted Aersion, Case ,o= #CC-.->.5-.'>.&, ( 8arch -..&. .............................................................................................................................................. 9

Ri'ard $. *nited States, +S Court of A44eal <udgment of 6*5

ed ))- (5th Cir. '&7*) ............................ 5

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 Pro<ect on #nternational Courts and Tribunals, 4ublished b" The !ague= Cluwer 1aw #nternational, c'&&&. at 7.7 (hereafter ?Antonio CasseseD). ......3

#.C./. Re4orts '&5*, 4. 56> 3#P9, Case ,o. D-..(-.565, -..(............................................................ 6

#C/ Re4orts, '&55, 44.(, -6B -- #1R, 44. 6(&,67.. at *-5...................................................................... 3

#CRC, Ho- is the term .)rmed Conflict/ defined in international humanitarian la-E , 94inion Pa4er, 8arch -..), 4.6............................................................................................................................. 7

#CRC, Protection of 0ictims of &on12nternational )rmed Conflicts, Document 4resented at the Conference of go$ernment eF4erts on the reaffirmation and de$elo4ment of international humanitarian law a44licable in armed conflicts, Aol. A, %ene$a, -( 8a"-'-/une '&*', 4.*&GGGGGGGGGG..)

#CT0, 9rder granting lea$e for withdrawal of charges against %o$edarica, %ruban, /an<icH, CosticH,Pas4al<, Pa$licH, Po4o$icH, Predo<e$icH, Sa$icH, @abicH and S4aon<a issued b" /udge Riad on ) 8a" '&&).......................................................................................................................................6 /. DelbrucI J R. 3olfrum, 0ol!errecht, Part #>6, ''(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

iii

!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<ects the <urisdiction of the Court as it does not ha$e the <urisdiction to entertain the instant case.

iv

!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 made sub<ect to all treaties b" reMuisite constitutional 4rocedure including the Rome Treat" in -..(. @ancha es4eciall" o44osed signature to the treat" and signified that @anchu would ne$er ha$e signed the treat". 8assi$e $iolence broIe out and Co4eegua was 4artitioned into %ogolistan and @ancha in 8a" -..), with the two states housing their et"mological tribes. @oth the states agreed to gi$e Kawals the same rights as the ma<orit" tribes in these countries. -. @ancha became the head of the state in @anchu and faced much o44osition from certain 4eo4le. 8r. @ancha addressed the nation and re$ealed that his secret ser$ice had come to Inow of deadl" cons4irac" aimed against him b" certain anti nationals belonging to Kawalis tribe. The 4olice rounded u4 man" Kawals on the basis of sus4icion. Ceechu Kawal, the leader of Kawals, under the banner of Kawal ,ational Part", launched guerilla warfare to striIe against the officials. 8r. @ancha em4haticall" declared that he had no merc" for those who betra" the cause of their great nation. The arm" offensi$e was laden with brutalities, a fact that has ne$er been officiall" acce4ted. The @ancha !erald re4orted that the @ancha soldiers ha$e caused terrible bloodshed in all the Kawal $illages the" ha$e searched while hunting for the members of K,P. 6. 8eanwhile, the rebels started recei$ing liberal aid from Kawals in %ogolistan. 8an" $olunteers enrolled themsel$es with K,P after crossing o$er into @anchu. The P8 of %ogolistan ad$ocated the cause their cause but ne$er ga$e an" official su44ort to them. @ancha stated that the situation brooIs no further dela" and eFtreme ste4s need to be taIen immediatel". The Arm" conducted a raid against the K,P and during it the ancient Cal"4so tem4le, a world heritage site was badl" damaged b" bombing. The worsening situation caught the attention of Securit" Council. So, it 4assed a resolution and referred the situation to #CC. 8eanwhile, @ancha was abducted from @anchu and was found unconscious in %ogolistan where the accused was taIen into custod" b" the 4olice. The 4re-trial chamber issued an arrest warrant against 8r. @ancha as reMuested b" the 4rosecutor under Article 5) of the Rome Statute. The new go$ernment dismissed arguments of @ancha being guilt" but ensured lawful in$estigation if an" com4laint comes u4.
v

I!!"E! &#I!ED

'. 3hether the #CC has the <urisdiction to tr" the case against 8r. lucanIaE -. 3hether in light of the 4rotest made b" the state of 8r. lucanIa, the case is admissible before the #CCE 6. 3hether the #CC has 4ower to eFercise the retros4ecti$e <urisdiction on the gi$en matterE (. 3hether the arrest and subseMuent transfer of 8r. lucanIa to #CC is legalE 5. 3hether the Accused is guilt" of following crimes= (i) Crime of %enocide under Article 7 (a) of the Rome Statue. (ii) Crime against !umanit" under Article *(') (g) (Ra4e, SeFual Sla$er", 2nforced Prostitution, orced Pregnanc" or an" other form of SeFual Aiolence of com4arable gra$it") enlisted in the Rome Statue. (iii) 3ar Crimes under Article )(-) (b) (F$iii) (em4lo"ing as4h"Fiating, 4oisonous or other gases, and all analogous liMuids, materials or de$ice).

vi

!"MM#&- O% #&."MENT! 1( ICC cannot e/ercise its 0uris1iction o'er the case( The Court cannot eFercise its <urisdiction o$er the case. The <urisdiction ratio temporis has not been established since @ancha ha$e o44osed the treat" and also not acce4ted the <urisdiction b" not maIing an" declaration lodged with Registrar as to acce4t the eFercise of <urisdiction b" the Court to the Crime in the Muestion. There was no intention for ?full destructionD of masauri s 4o4ulation and the act has not reached the standard of genocide as 4rescribed in Article 7. The Prosecutor failed to meet the reMuirements of the 4reconditions to enable the #CC to eFercise its <urisdiction referred to Art. '- (-), since= (i) the territorial State of the crime committed here is not a State Part" to the Statute at the time of crimeB (ii) the state of nationalit" of the accused is not a State Part" to the Statute either. 2( In light of the protest ma1e 23 the state of Na4olia5 the case is not a1missi2le 2efore the ICC( The #CC is im4eded to anal"Ne the merits of the case due to the 4rinci4le of com4lementarit", and second, the gra$it" of the acts 4er4etrated does not <ustif" the resource to the Court. The #CC is barred from eFercising its <urisdiction o$er a crime, whene$er a national Court asserts its <urisdiction o$er the same crime and under its national law the ,aNolia has <urisdictionB and it ne$er showed its unwillingness and its inabilit" of ad<udging. ,aNolia has shown interest in 4rosecuting the 8r. 1ucanIa. The burden of 4roof of demonstrating that ,aNolia go$t. has not conducted an in$estigation or is unwilling or unable of conducting a fair trial is u4on those alleging it. ,aNolia go$t. has merel" states that most of the <udges of the countr" were lo"alist right wing member of lucanIaOs 4art" and also held that it had difficult" in controlling some of the regions which were com4letel" inhabited b" members of the haIa"u tribe. There was no sufficient gra$it" to <ustif" further action b" the Court.

vii

:( The conflict has not 2een internationali4e1 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 an1 su2se8uent 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 $itiate the trial. The Chamber s authoriNation of the arrest of the Accused was not onl" unlawful but 4oliticall" insensiti$e and, had the crime actuall" taIen 4lace, would ha$e been counter-4roducti$e.

viii

<( The accuse1 is not guilt3 of crime of .enoci1e un1er #rticle = >a?5 crime against $umanit3 un1er #rticle @>1? >g?5 7ar Crimes un1er #rticle 8>2? >2? >/'iii? enliste1 in the &ome !tatue( There are elements that show the lacI of genocidal intent. The accused is not guilt" of crime against !umanit" under Article *(') (g). 8r.1ucanIa had no Inowledge of the attacI as ne$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

BOD- O% )E#DIN.! #( ICC cannot e/ercise its 0uris1iction o'er the case( a? The ,uris1iction ratio temporis is not esta2lishe1 accor1ing to #rt( 11( #t is in dis4ute that the jurisdiction ratio temporis has been established since the alleged crime tooI 4lace in before ' <ul" -..- and 8r. lucanIa ha$e o44osed the treat" and signified that the accused would ne$er ha$e signed the treat" and no 8r. lucanIa will e$er be considered to be bound b" the same. 2$en after the formation of new go$t. under 8r.,aIobi, immediatel" signed and ratified the rome statute of #CC. 8oreo$er, 8r. ,aIobi has not acce4ted the <urisdiction b" maIing an" declaration lodged with Registrar as to acce4t the eFercise of <urisdiction b" the Court to the crime in the Muestion. 3ith regard to the <urisdictional basis ratione personae, the #CC-Statue maIes reference solel" to the well recognised and uncontro$ersial acti$e 4ersonalit" 4rinci4le when it states that the Court ma" onl" eFercise its <urisdiction if the alleged 4er4etrator of the crime is a national of a State 4art" or a national of a state which has acce4ted the <urisdiction of the Court.
6 3

The #CC-Statue does not im4ose an obligation for a non-state to co-o4erate with the Court according to articles )7 et seM. of the #CC-Statue. A number of other eFisting <urisdictional bases are not included in the #CC-Statue, namel" the uni$ersalit" 4rinci4le and 4assi$e 4ersonalit" 4rinci4le. Regarding the uni$ersalit", one would concei$e of a case in which 4er4etrator is in the custod" of a State 4art". #n such a constellation, the #CC would not be able to claim <urisdiction o$er that 4erson, although the uni$ersalit" 4rinci4le would grant the state where the 4er4etrator is held to do so. #t is not howe$er sur4rising that the 4assi$e 4ersonalit" and ci$il law countries. ' The Court has <urisdiction onl" with the res4ect to crimes committed after the entr" into force of this Statue. #f a
5 7 (

did not entr" into the #CC-Statue gi$en the dis4arate $iews held on this between common law

State becomes a Part" to this Statue after its entr" into force, the Court ma" eFercise its <urisdiction onl" with the res4ect to crimes committed after the entr" into force of this Statue for that State, unless that State has made a declaration under article '-, 4ara. 6. - Article'- (6) of the Rome Statue.

6 rticle '- (-) (b) of the Rome Statue. A (he obligations of State Parties to the #CC-Statue are to 4ro$ide funding (article ''* #CC-Statue), e$idence (article T 5 # CC-Statue) and other of coo4eration to the #CC (article '.& (') #CC-Statue) and surrender and transfer of indicted 4ersons to the forms #CC (article )&(') #CC-Statue). 5 /. DelbrucI J R. 3olfrum, 0ol!errecht, Part #>6, ''(5, (-nd edition, -..-). 7 The 4assi$e 4ersonalit" 4rinci4le a44lies when the $ictim(s) of criminal conduct is a>are national(s) of a state 4art". *

2? The ,uris1iction ratione materiae is not esta2lishe1 in this case( The defendant counsel would liIe to focus on the issue whether @ancha s 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$it". 8r. lucanIas statement falls out of the range 4rotected under the notion of free eF4ression. 8r. lucanIa was not eF4licitl" calling for destruction of masauri 4eo4le. The accused was onl" against those 4eo4le who betra" the cause of his great nation. There was no intention for ?full destructionD of masauri s 4o4ulation and it has not reached the standard of genocide as 4rescribed in Article 7. #ncitement to genocide is not merel" causing others to commit genocide. An intent as 4rescribed in Article 6. is needed. There must be a 4ro$oIing, eFhorting, or 4romoting others to engage in genocidal acts on 4ur4ose.
& ) *

c? The Temporal ,uris1iction is not esta2lishe1 in this case( ,aNolia as the nationalit" of the accused is a non-state 4art" to #CC and is unliIel" to acce4t the Courts <urisdiction b" declaration as 4ro$ided in Para 6 of Art. '- , es4eciall" when the accused is the head of state at the time as eF4lained earlier.
'.

* Prosecutor $. &ahimana et al., (Case ,o. #CTR-&&-5--T) 6 December -..6, in which #CTR con$icted three media men for the crime of inciting genocide. ) or theor 4ur4ose this Statue, ?genocideD means an" of the following acts committed with intent to destro", in whole in 4art,of a national, ethical, racial or religious grou4. & + nless other 4ro$ided, a onl" 4erson shall be criminall" res4onsible and liable 4unishment for a crime within the <urisdiction of the Court if the materials elements are committed withfor intent and Inowledge. '. Art. '- (6) of the Rome Statue. #t has 4ro$ided a wa" for non-state to acce4t #CC s <urisdiction b" maIing declaration. ''

1? The precon1itions 7hich are re8uire1 as a must for the ICC to 2e a2le to e/ercise its 0uris1iction are not fulfille1 accor1ing to #rt( 12( A4art from the fundamental rule that States, b" becoming 4arties to the Statute, acce4t the <urisdiction of the #CC with res4ect to the crimes referred to in Art. 5, the Court must fulfill other two conditions to eFercise its <urisdiction in accordance with Art. '- (-). 3ith regard to the decisi$e Muestion, it la"s down that State acce4tance is necessar" from either the territorial State or the State of the nationalit" of the accused or both.
''

!ere, the Prosecutor failed to meet the reMuirements of the 4reconditions to enable the #CC to eFercise its <urisdiction referred to Art. '- (-), since= (i) the territorial State of the crime committed here is not a State Part" to the StatuteB (ii) the state of nationalit" of the accused is not a State Part" to the Statute either.
'-

,aNolia is not a State Part", so acti$ities on its territor" do

not 4ro$ide the #CC with territorial <urisdiction 4ursuant to Art. '- (-) (a). The Prosecution can 4ro$ide no e$idence that the conduct in Muestion occurred in a State Part", and conseMuentl" has no e$idence of territorial <urisdiction. #n the 4resent case, newl" elected go$t. of 8r. naIobi immediatel" signed and ratified the rome statute of #CC which was not a legal go$t. because it still does not control a siNeable 4ortion of naNolia and therefore does notMualif" the ?effecti$e control testD so naNolia was not a state 4art". This is an im4ortant as4ect entirel" lacIing in the 4resent case where there is no sense of 4ro4ortionalit", gra$it" or indeed logic <ustif"ing 4rosecution. As demonstrated b" eFtensi$e state 4ractice and opinion juris, it is an established rule of international customar" law that the State of the nationalit" of the accused can thus eFercise eFtraterritorial <urisdiction at least with regard to the most serious crimes under international criminal law. The #nternational Court of /ustice noted in &ottebohm that, according to state 4ractice, nationalit" was= a legal bond ha$ing as its basis a social fact of attachment, a genuine connection of eFistence, interests and sentiments, together with the eFistence of reci4rocal rights and duties.
'6

#t is ob$ious that in this

case, the onl" state of nationalit" of the accused, 8r. lucanIa, is ,aNolia. As is mentioned, lucanIa is not signator" to and thus also not a State Part" to the Statute. !ence, the Prosecutor failed to fulfill the 4reconditions reMuired in Art. '- (-) for the #CCs eFercise of <urisdiction. ''
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 Pro<ect on #nternational Courts and Tribunals, 4ublished b" The !ague= Cluwer 1aw #nternational, c'&&&. at 7.7 (hereafter ?Antonio CasseseD). 'Art. '- of the Rome Statue.

'6 Re4orts, '&55, 44.(, -6B -- #1R, 44. 6(&,67.. at *-5. #C/ '(

3ith no factual bases for article '- <urisdiction, the defendant will argue for no$el grounds for <urisdiction that are unsu44orted b" the Statute, which does not 4ermit eF4anding <urisdiction. The Pre-Trial Chamber must re<ect an" argument for territorial <urisdiction that di$erges from the language of the Statute or the intentions of the drafters. irst, there is no statutor" authorit" for a broad reading of article '-. Article '- is eF4licit, conclusi$e, and clear on the issue of what ?ma"D 4ro$ide the Court <urisdiction, and there is no language within the Rome Statute generall" that encourages alternati$e a44roaches.
'(

Second, a no$el inter4retation would harm the integrit"

of the Court. The 4reconditions to the eFercise of <urisdiction detailed in article '- were carefull" negotiated and drafted during the Rome conference and were considered among of the most im4ortant and contro$ersial 4ro$isions of the Statute. B( In light of the protest ma1e 23 the state of Bancha5 the case is not a1missi2le 2efore the ICC( a? The case is not a1missi2le 2efore the ICC( Articles '* to '& of the Rome Statute determine the conditions of admissibilit", which can be defined as reMuirements to the acce4tance of a s4ecific case o$er which the #CC has <urisdiction. The 4resent situation is inadmissible before the #nternational Criminal Court, once the reMuirements established in the Rome Statute are com4letel" fulfilled. 2? rinciple of Complimentarit3( The #CC is based on the 4rinci4le of com4lementarit" whereb" the Court is subsidiar" or com4lementar" to national courts. These courts en<o" 4riorit" in the eFercise of <urisdiction eFce4t under s4ecial circumstances, when the #CC is entitled to taIe o$er and assert its <urisdiction. This a44roach undertaIen b" the Statute was ado4ted since, the national courts ma" ha$e more means a$ailable to collect the necessar" e$idence and to la" their hands on the accused, and also since there was the intent to res4ect State so$ereignt" as much as 4ossible.

'(

Art '- (-) of the Rome Statue.

4

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

'7

'5

as well as in Article ' of the

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

from eFercising its <urisdiction o$er a crime, whene$er a national Court asserts its <urisdiction o$er the same crime and under its national law the State has <urisdictionB and the State is willing and has the abilit" of ad<udging (Art. '*.' (a)).
'*

c? Na4olia state has territorial 0uris1iction o'er Mr( lucan9a( The basic 4rinci4le of territorialit" determines that a crime committed in a State s territor" is <ustifiable in that State. #n the 1otus case, the Permanent Court of #nternational /ustice stated in '&-* that ?in all s"stems of law the 4rinci4le of the territorialit" character of criminal law is fundamentalD ( rance $. Tur!e", '&-*, 4. -.). States
'& ')

urther, a +S Court stated in Ri'ard $. *nited

that ?all the nations of the world recogniNe the 4rinci4le that a man who outside of a

countr" willfull" 4uts in motion a force to taIe effect in it is answerable at the 4lace where the e$il is done.D The 4rinci4le is grounded basic 4rinci4le of territorial so$ereignt", which denotes the en<o"ment of rights o$er territor". Territorial so$ereignt" in$ol$es the eFclusi$e right to dis4la" the acti$ities of a State (&etherlands $. *nited States, '&-), 4ara. )-&).
-.

,aNolia is a

so$ereign State, and, for that reason, the 4rinci4le of territor" would 4ros4er. #n addition, there are two im4ortant ad$antages, which <ustif" its a44licabilit". irst, the locus delicti commissi (the 4lace where the offence has allegedl" been committed) was within ,aNolia, countr" where it is easiest to collect e$idence. #t is therefore considered the a44ro4riate 4lace of trial (2srael $. #ichman, '&7-).
-'

'5

2m4hasiNing that the #nternational Criminal Court established under this Statue shall be com4lementar" to national criminal <urisdictions. '7 #t shall be a 4ermanent institution and shall ha$e the 4ower to eFercise its <urisdiction o$er 4ersons for the most serious crimes of international concern, as referred to in this Statue, and shall be com4lementar" to national criminal <urisdictions. '* The case is being to in$estigated or 4rosecuted b"or a State which has <urisdiction o$er it, unless the State is willing or unable genuinel" carr" out the in$estigation 4rosecution.

') #nternational Lotus Case;. Court of /ustice, SS Lotus ( rance $. Tur!e")5 PC#/ '&-* Series A, ,o. '., * Se4tember '&-*, :Cited as Ri'ard '& $. *nited States, +S Court of A44eal <udgment of 6*5 ed ))- (5th Cir. '&7*). The -. 1ands of Palmas Arbitration, (&etherlands $. *nited States), '&-), -, R#AA )-&. #srael, #ichman, Su4reme Court, <udgement of -& 8a" '&7-, 2nglish translation in 67 #1R. -' --

1? Bur1en 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 committe1 in Na4olia 1o not 0ustif3 the action 23 the Court( The Court shall determine the case is inadmissible where the case is not of sufficient gra$it" to <ustif" further action b" the Court. +nder international law, national or territorial states ha$e the right to 4rosecute and tr" international crimes, and often e$en a dut" to do so. urther, national <urisdiction o$er those crimes is normall" $er" broad, and embraces e$en lesser international crimes, such as s4oradic or isolated acts, which do not maIe u4, nor are 4art of, a 4attern of criminal beha$ior. 3ere the #CC also to deal with all sorts of international crimes, including those of lesser gra$it", it would soon be flooded with cases and become ineffecti$e as a result of an eFcessi$e and is 4ro4ortionate worIload. #t is therefore Muite a44ro4riate that the #CC should inter$ene onl" when national institutions fail to do so (#CT0, 9rder, '&&)). action b" the Court.
-(

There were no

armed conflict, as alread" clarified abo$e, and therefore no sufficient gra$it" to <ustif" further

-#.C./. Re4orts '&5*, 4. 56> 3#P9, Case ,o. D-..(-.565, -..(. -6 Richard @uilder, The Role of Trust in #nternational 1aw, a$ailable at htt4=>>ssrn.com>abstractP&'-*(', '&)'. -( #CT0, 9rder granting lea$e for@abicH withdrawal of charges against %o$edarica, /an<icH, CosticH,Pas4al<, Pa$licH, Po4o$icH, Predo<e$icH, Sa$icH, and S4aon<a issued b" /udge Riad on%ruban, ) 8a" '&&). -5

C( The conflict has not 2een internationali4e1 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$e theor" of 4unishment, as o44osed to the deterrent theor". #f 4unishment is <ustified as a deterrent to future wrongdoing, then new laws can onl" a44l" 4ros4ecti$el". +nless the 4re$ious wrongdoer eF4ected to be 4unished, the 4unishment would be useless as a deterrent. urthermore, announcement of the change in the law should be sufficient deterrent to future wrongdoersB 4unishing 4re$ious wrongdoers would ha$e no deterrent effect u4on those future wrongdoers. !owe$er, if 4unishment is $iewed as societ"Qs retribution for moral wrongdoing, then retroacti$it" can be <ustified. As 3illiams 4uts it= 8oralit" can ha$e no s4ecial eFem4tion for those who Rcommit the oldest sins the newest Iind of wa"sR.This a44roach tends to suggest a wide role for retroacti$it", a role which draws criticism= ... the ado4tion of retroacti$it" as a general 4rinci4le is altogether inadmissible ... it is un<ust ..6 @ut, acce4ting that retros4ecti$it" has a role in the retributi$e 4unishment of wrongdoers does not mean that retros4ecti$it" need be a general 4rinci4le. Pro4onents of retros4ecti$it" onl" argue for the maIing of retroacti$e laws in eFce4tional circumstances= in situations where the wrongdoerQs acts or omissions were morall" wrong, though legal at the

25 . C. $on Sa$ign", o4. cit., 4. 6((. 26 %. 3illiams, o4. cit., 4. 7.'. 27 . C. $on Sa$ign", o4. cit., 44. 6(5

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 Rnatural lawR ( According to 3illiams, a number of eminent <urists se$erel" criticised the ,uremberg trials for 4ro$iding for 4unishment of all crimes against humanit" (whether or not in $iolation of the domestic law of the countr" where the acts were committed), and for declaring the waging of a war of aggression to be a crime. @oth of these ste4s were said to go be"ond eFisting international law. The ,uremberg trials are generall" said to ha$e been fair, des4ite the demonstrabl" retros4ecti$e nature of the charges laid against the ,aNi defendants. This is clearl" due to societ"Qs abhorrence of the atrocities committed b" the ,aNis in 3orld 3ar ##. 0et, regardless of the re4ugnant nature of what the ,aNis did, it is clear that the" were denied 4rotection from retroacti$e criminal law. Des4ite these 4rotestations, most <urists rationalised the beha$iour of the ,uremberg court b" claiming that the actions of the ,aNis were so immoral as to be an eFce4tion to the 4rinci4le of non-retroacti$it". 3illiams claims= ,o in<ustice was done at ,uremberg, because all the defendants there found guilt" were clearl" guilt" of war crimes in the traditional sense.5 At this 4oint, it is illustrati$e to Muote from the law with which the ,aNis altered the %erman Criminal Code in '&65=7 In the case of Shaw v. Director of Public Prosecutions Shaw was successfull" 4rosecuted under a number of 4ro$isions of the Se4ual (ffences )ct '&57 and the (bscene Publications )ct '&5&. Shaw com4lained to the !ouse of 1ords, inter alia, that the crime of cons4irac" to corru4t 4ublic morals was hitherto unInown or innominate. All fi$e law lords u4held the con$iction. 9nl" 1ord Reid maintained that the crime with which Shaw was charged was an eFisting common law misdemeanour. The other four law lords went further. The" held that courts ha$e a residual 4ower to su4erintend offences which are 4re<udicial to the 4ublic welfare. The ma<orit" built their argument u4on the notion, 4ut forward b" 1ord 8ansfield almost two hundred "ears earlier, that the courts are Rguardians of 4ublic moralsR and that the" ought to restrain and 4unish R... whate$er is contra bonos mores et decorumR.* #n the earlier case of R. v. Manley,)8anle" made false allegations of robber" to the 4olice. @efore the Court of Criminal A44eal she was found guilt" of Runlawfull" effecting a 4ublic mischiefR. This decision was widel" attacIed as being an eFam4le of eF 4ost facto 4unishment, as no such crime eFisted before R. '. 5anle".

D( The arrest an1 su2se8uent 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 law
6.

and customar" international law.

a? The information su2mitte1 23 the rosecutor 1oes not meet the re8uirements to issue an arrest 7arrant.

1? There are no reasona2le groun1s to 2elie'e that $ea1 of !tate Mr( lucan9a has committe1 genoci1e5 crimes against humanit3 an1 7ar crimes( According to Art. 5) (') (a), before the Pre-Trial Chamber issues an arrest warrant, it shall be ensure that there are reasonable grounds to belie$e that the accused 4erson has committed a crime within the <urisdiction of the Court.
6'

!owe$er, as is argued in the first issue, 8r. lucanIa

did not commit genocide, which is a crime within the <urisdiction of the Court. Cases that ha$e come before the attention of the Court where the legalit" of an arrest has been Muestioned include Lubanga where defendant ha$e sought to Muestion the legalit" of the actual arrest in terms of its 4ractical im4lementation and the technical matters of the arrest. The case at hand has to be
67

constitutes an armed conflict between states for the 4ur4ose of maIing the ourth %ene$a Con$ection a44licable. @ut does the internal conflict itself become an armed conflict between statesE The answer is in the affirmati$e if the foreign state assumes control o$er the secessionist grou4 such that the use of force b" the secessionist grou4 becomes a use of force b" the foreign state against the local state, thereb" gi$ing rise to an armed conflict between the states within the meaning of Article -, first 4aragra4h, of the ourth %ene$a Con$ection.D Prosecutor $. Blas!ic, #T-&5-'( /udgement, 6 8arch -... (hereinafter ?The Blas!ic $udgementD) Declaration of /udge Shahabuddeen.

6. Prosecutor $. (mar Hassan )hmad )l Bashir, Decision on the Prosecutors A44lication for a 3arrant of Arrest against 9mar !assan Ahmad Al @ashir, Public Redacted Aersion, Case ,o= #CC-.->.5-.'>.&, ( 8arch -..&. Art. 6' 5) (') (a). 6Lubanga /udgement the A44eal against the decision on the Defence Challenge to the /urisdiction of the Court 4ursuant ,to Article '&on (-) (a), Case ,o= #CC-.'>.(-.'>.7, '( December -..7. 66

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 <urisdiction of the Court. 2? #rrest of Mr( lucan9a is unnecessar3( 2$en if 8r. lucanIa committed incitement to genocideB there is no necessit" to arrest him 4ursuant to Art. 5) (') (b). Cruciall", the measures were not necessar" to S ensure his appearance at trial/ according to Article 5) (') (b) (i). %i$en the nature of his role as !ead of State, the accused did not 4ose a risI of absconding. #nstead, the Court could ha$e sim4l" summoned the Accused. Additionall", such measures were not necessar" to Sensure 8he9 does not obstruct or endanger the in'estigation of Court proceeding/ according to Article 5) (') (b) (ii). There was 4lainl" nothing the Accused could ha$e done to obstruct or endanger the in$estigation of Court 4roceedings. 8eanwhile, the Prosecutor has initiated the in$estigation, while 8r.lucanIa has not obstructed or endangered the in$estigation. The Chamber should acInowledge that the Accused has a 4ublic role and re4utation to lose. The Accused would undoubtedl" be more interested in o$ertl" coo4erating with the Court and 4ro$e his innocence as o44osed to a$oid its reach.

8ost im4ortantl", howe$er, the arrest of the Accused was not necessar" .to pre'ent 8him9 continuing the commission of that crime, or a related crime/ according to Article 5) (') (b) (iii). 9n the contrar", im4risonment of a head of state would undoubtedl" 4ose the biggest indirect incitement to an" followers and allies. #t is the ultimate 4ro$ocation of $iolence. The fact that no $iolent reactions ensued, e4itomiNes the tragic misconce4tion of the Prosecution. ,o crime was e$er committed. #t follows that the Chamber s 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. :? olice shoul1 not arrest $ea1 of !tate Bancha in respect to state immunit3(

@ancha should be immune from the arrest b" %ogolistan 4olice. There are two Iinds of immunities in international customar" law= the functional immunit" (immunit" ratione materiae) and the 4ersonal immunit" (immunit" ratione 4ersonae). The immunit" ratione materiae of a di4lomat or head of a state is in fact state immunit". !eads of states or go$ernments are
1

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 in DRC $. Belgium that high-ranIing state officials are immune from the domestic <urisdictions of other states and this includes 4articularl" heads of state. Article -* (-)
6( 66

3ith regard to immunit", a literal reading of

ma" suggest that the defence of immunit" cannot be in$oIed under an"

circumstances. !owe$er, it is unreasonable to assume that the Court can ignore claims to immunit" from heads of state of non-#CC 4art" states. 3hile Article -* states that neither the immunit" of a head of state nor the official 4osition of a sus4ected international criminal will bar the Court from eFercising its <urisdiction, the Accused did not tr" to assert state immunit" at an international le$el. #nstead the Accused attem4ted to assert it at a horiNontal, national le$el in @ancha. According to customar" international law that Court was obliged to grant the Accused di4lomatic and state immunit". According to Article &) ('), the domestic Court could not ha$e acted u4on the reMuest of the Court because the Court cannot legall" reMuest taIing into custod" of a head of state from a third countr". The Accused should not ha$e been arrested and surrendered and it would be antithetical to <ustice if the Chamber relied on an unlawful <udgment of a national surrender trial. 2? !u2se8uent Transfer of Bancha is illegal( #n accordance with Art. &) ('), the #CC ma" not 4roceed with a reMuest for surrender or assistance which would reMuire the reMuested state to act inconsistentl" with its obligations under international law with res4ect to the state or di4lomatic immunit" of a 4erson or 4ro4ert" of a third state, unless the Court can first obtain the coo4eration of that third 4art" for the wai$er of the immunit". %ogolistan is also not a custodial countr" of the StatuteB the Court cannot reMuest %ogolistan for assistance which would reMuire it to act inconsistentl" with its obligations under international law with res4ect to state or di4lomatic immunit" of a 4erson or 4ro4ert" of a third State. Since the Court has not obtained the coo4eration of @anchu, it could not reMuest %ogolistan for surrender or assistance if this will reMuest %ogolistan to breach its obligations under international law with res4ect to di4lomatic immunit" of a 4erson of @anchu.

66 Arrest 3arrant of ' A4ril -... (Democratic Republic of the Congo $. Belgium), /udgment, #.C./. Re4orts -..-, Para.5' 6( #mmunities or s4ecial 4rocedural which ma" attach to the official ca4acit" of a 4erson, whether under national or international law, shall not bar rules the Court from eFercising its <urisdiction o$er such a 4erson. 65
1 1

E( The accuse1 is not guilt3 of follo7ing crimes: a? The accuse1 is not guilt3 of crime of .enoci1e un1er #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$ention of '&() and the corres4onding customar" international rules reMuire a number of s4ecific ob<ecti$e and sub<ecti$e elements for indi$idual criminal res4onsibilit" for genocide to arise. There are elements that show the lacI of genocidal intent. The 4rosecution

failed to show ? dolus s4ecialisD or ?dolus aggra$eD which is an essential element to 4ro$e the ?s4ecific intentD in the offence of genocide. The" were onl" against those 4eo4le who betra" the cause of their great nation. The" were onl" against the 4eo4le who betra" the cause of the nation not whole 8asauri 4eo4le. The incident at the 4residentOs official residence was done in 4ursuance of self defence as 4ro$ided under Art. 6'(C) of the rome statute and the masauri tribe had s4ecificall" gathered there with 4re meditation to Iill his famil" and burn his residence. This case clearl" shows that the intent of the attacIers was not to destro" an" grou4 as such, or 4art of the grou4. #nstead, the intention was to murder all those men the" considered as rebels, as well as 4re$ent rebels from hiding among, or getting su44ort from, the local 4o4ulation. #n the case of genocide a 4erson intending to murder a set of 4ersons belonging to a 4rotected grou4, with the s4ecific intent of destro"ing the grou4 (in whole or in 4art), ma" be moti$ated, for eFam4le, rom the $iew4oint of criminal law, what matters is not the moti$e, but rather whether or not there eFists the reMuisite s4ecial intent to destro" a grou4. 2? The accuse1 is not guilt3 of crime against $umanit3 un1er #rticle @>1? >g? enliste1 in the &ome !tatue( To establish a crime against humanit" which would bring the defendant under <urisdiction of the #CC, we must a44l" the threshold test of Article *
65

and determine whether the acts in Muestion

were committed as 4art of a wides4read or s"stematic attacI directed against a ci$ilian 4o4ulation, with Inowledge of the attacI. irstl", there is nowhere mentioned in the facts that 8r. lucanIa had Inowledge of the attacI conducted b" his arm" or other 4erson since he ne$er ordered to conduct
65

or the 4ur4ose of this statue, ?crime against humanit"D means an" of the following acts when committed as a wides4read or s"stematic attacI directed against an" ci$ilian 4o4ulation with the Inowledge of the attacI.

12

such an" act. 8oreo$er, a wides4read attacI is ?understood as reMuiring large-scale action in$ol$ing a substantial number of $ictimsD while the term s"stematic was ?understood as reMuiring a high degree of orchestration and methodical 4lanning.D #n this case, neither of these reMuirements is met. .D There eFists no e$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 <aNulu. !e was use the data of census de4artment for the 4ur4ose of de$elo4ment of the nation and there was no e$idence which 4ro$e that census data used for Iilling of <aNulu residence. The Defendant did not 4ossess the reMuisite mens rea necessar" to designate their actions as crimes under Article * (') (g).
67

3ithout the reMuisite Inowledge, the

defendant cannot be brought before the #CC under charges of crimes against humanit". c? The accuse1 is not guilt3 of 7ar Crimes un1er #rticle 8>2? >2? >/'iii? enliste1 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$es which were around 5.. meters awa" from the ancient Cal"4so tem4le, a world heritage site declared b" +,2SC9. There was no intention to direct attacI against the tem4le. The" onl" want to finish off the militants. The tem4le was not damaged intentionall" but it was during the course of the raid, the tem4le structure was badl" damaged b" bombing. This act is also done with militar" ob<ecti$e to curb the rebels. So @ancha Arm" would not be held liable. The @ancha Arm" has ne$er utiliNed the 4resence of ci$ilians or other 4rotected 4ersons to render certain 4oints. The" were forced to retreat when K,P rebels were uneF4ectedl" <oined b" another grou4 of rebels. !a$e the" utiliNed the 4resence of ci$ilians, the" would ha$e ne$er entrenched themsel$es in the forests at a

67 Ra4e, seFual sla$er", enforced 4rostitution, forced 4regnanc", enforced steriliNation, or an" other form of seFual $iolence of com4arable gra$it". 6* em4lo"ing as4h"Fiation, 4oisonous or other gases, and all analogous liMuids, materials or de$ice. 6)
1 3

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 <ust ha44ened when it a44eared that the retreating @anchu Arm" would ha$e been destro"ed until the" mo$ed to a safe 4lace.

14

&#-E& 3herefore, in the light of the Muestions 4resented, arguments ad$anced and authorities cited, counsel on the behalf of the Defendant reMuests this !on ble Court to find, ad<udge and declare that= '. The Court cannot eFercise its <urisdiction o$er the case. -. The case is not admissible before the #CC. 6. The Chamber should decline to confirm the charge. The case should be dismissed on 4reliminar" basis (Art. 56 (-). (c)). (. The arrest and subseMuent transfer of 8r. lucanIa is illegal. The Accused should be immediatel" and unconditionall" released. Pass an" order, which the Court ma" deem fit in light of <ustice eMuit" and good conscience. #n res4ectful submission before the #nternational Criminal Court.

Counsel of the Defendant