3rd INTERNAL ASSESSMENT OF INTERNATIONAL CRMINAL LAW.

SYMBIOSIS LAW SCHOOL, PUNE

INTERNAL ASSESSMENT
OF
INTERNATIONAL CRIMINAL LAW

OBSERVATION REPORT ON
“FOURTH SYMBIOSIS LAW SCHOOL, PUNE - INTERNATIONAL
CRIMINAL TRIAL ADVOCACY COMPETITION [SICTA]”

SUBMITTED BY:
NUPUR JHOD
Div. : ‘C’
PRN NO.:- 15010125209
WORDS: 1,987

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FACTS

 Xuan is an archipelagic country in Southeast Asia. Labour Republic is a founding member of

the United Nations, World Trade Organization, the European-Executive Economic
Cooperation Forum and the World Bank.
 Both the afore-discussed countries have signed and ratified the Rome Statute, the
International Covenant on Civil and Political Rights, the Genocide Convention, and the
Geneva Convention(s). The two countries also share an extradition treaty between them.
 Xuan has always been a highly diverse country with a heterogeneous population comprising
of multiple ethnicities. There are two group of Philos in Xuan one is ‘Epistemologs’ and
second is ‘Anthrops’.

 PAT government came in power in 2008 that is for Sophist committee. This government
started a scheme know as TAP (Trident Action Plan) having 3 phases as follow:
i. December, 2010, the 1st phase of the TAP involved enactment of a slew of legislations
aimed at limiting some civil liberties of Xuanian citizens
ii. The 2nd phase of TAP was launched in May 2011. Under this phase, various research
studies were conducted to measure the levels of criminal activities in the State.
publicised by a report titled, “State of criminality and inefficiencies in Xuan”. The said
report was authorized by the government.
iii. September 2012, began the 3rd phase of the TAP. By means of a single legislation, the
executive of Xuan usurped powers to enforce sterilization across the country called the
Xuan Population Control Implementation Act.
 Because of this policy the population of philos decreased drastically. Henceforth, the suit
was instituted.

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LEGAL ASPECT : ROLE OF WITNESS IN INTERNATIONAL CRIMINAL

TRIAL

I. ROLE OF WITNESSES IN INTERNATIONAL CRIMINAL TRIAL:

The Office of the Prosecutor, the Defence or victims participating in the proceedings can ask
experts, victims or any other person who has witnessed crimes to testify as a witness before
the Court. The Office of the Prosecutor selects witnesses based on the relevance of their
testimony, their reliability and their credibility. No. The Court does not compel a witness to
appear before it to testify without his or her consent.
The Court has a number of protective measures that can be granted to witnesses who appear
before the Court and other persons at risk on account of testimony given by a witness.
The foundation of the Court’s protection system is good practices which are aimed at
concealing a witness’ interaction with the Court from their community and from the general
public. These are employed by all people coming into contact with witnesses. Protective
measures do not affect the fairness of a trial. They are used to make witnesses safe and
comfortable. They apply for both referring parties, the Prosecution and the Defence equally.
All parties are bound by confidentiality and respect to protective measure, yet even when
protective measures are applied, witness can still be questioned.

II. THE FIRST TRIGGER MECHANISM : ICC PROSECUTOR-INITIATED CASES

The point of controversy during the ICC Statute negotiations in Rome was the extent of the
Prosecutor's powers to initiate investigations without either a State party or a UN Security Council
referral (proprio motu). Indeed, many States at Rome objected to giving the Prosecutor' a proprio
motu investigatory power fearing it might be used to commence politically motivated prosecutions.
Nonetheless under the Statute as concluded, the ICC Prosecutor may begin an investigation proprio
motu on the basis of information received by individuals or organizations, but only if he or she can
demonstrate to an ICC Pre-Trial Chamber that there is a reasonable basis to proceed.
 The ICC Pre-Trial Chambers have, in fact, only granted permission to the ICC to open
investigations proprio motu in respect of two situations.1 A likely explanation for this is that the ICC
Prosecutor's chances of gaining access to evidence and witnesses are much greater where States are
cooperating voluntarily with the Court. In the present case the other state was not at all cooperative.

1
The first was the situation in Kenya in March 2010 and the second the situation in Côte d'Ivoire in October 2011.

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III. ARTICLE 6: GENOCIDE

For the purpose of this Statute, "genocide" means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such:2

1. Killing members of the group;

2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.3

II.1. PROSECTURION WITNESSES:

In the present case the act occurred against the specific community that are Philos. Most of the
populations were of Philos community. In the present case, the Philos can be considered as a racial 4
and/or ethnic5 group. There was huge threat created by the PAT government on the members of the
community to follow the order of the government and undergo medical screening and operations or
else they will lose their jobs or will get disowned by other group or peoples.6

Only particular group are being targeted, while the members of other groups are excluded like as per
the main victim witness the shopis were given higher jobs and were placed at a better position and all
philos were demoted to genitor.7 It was threatened to them that if they do not follow their instructions
and don’t undergo operation they will loss their jobs and victims were never told about the actual
effects and purpose of the operation.8 The handout which was given to the government employs was
not in a readable language.

Also, not only the government employ but other members of philos community were forced to
undergo same medical process.9 Hence, it amounts to genocide. It was held in the case of The
2
ICTR, The Prosecutor v. Musema, Case No. ICTR- 96-13-A, Trial Judgment (27 January 2000).
3
Prosecutor v. Milomir Stakic (Trial Judgement), IT-97-24-T.
4
ICTR, The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (2 September 1998), paras. 514 and 516. “The
conventional definition of racial group is based on the hereditary physical traits often identified with a geographical
region, irrespective of linguistic, cultural, national or religious factors.”
5
The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (2 September 1998), para. 513. “a group whose members
share a common language or culture”
6
Prosecutor v. Krstić, Case No IT-98-33-A
7
Prosecutor v. Bridjanin, Case No. IT-99-36-T; The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (2
September 1998)
8
Prosecutor v. Juvénal Kajelijeli, ICTR-98-44A-T
9
Prosecutor v. Goran Jelisic (Appeal Judgement), IT-95-10-A; Prosecutor v Krstić (Appeals Chamber Judgment), Case
No IT–98–33–A

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Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Judgement), 10 “ It is clear and enough
that he intends to destroy the group (in whole or in part) identified by the Court as the protected
group in the specific instance which relates to the charges brought against him”. Jorden made a
statement that their people are going on the border and the philos because of their defective gene trait
are sitting at home and reproducing. This determines the state of mind of the accused.11

II.2. DEFENCE WITNESSES :

As per Article 30(2) of the Rome Statute, Intent requires both conscience and will, in that the
perpetrator must have considered his action, its result, and the causal relation between the two
and, having done so, he must have decided consciously and willingly to proceed with his
action. Mere negligence would not satisfy the intent requirement. Here in the present case the
defended argued that mere intention was to just remove the disease causing genes and to
enhance the breed.12 In the present case, in the perception of the accused, the Philos
constituted a political group opposed to the ideology of the government of Xuan. The Philos,
in the perception of the accused, as evidenced through multiple testimonies, did not constitute
any of the four protected groups.13
A reading of the Genocide Convention along with the Travaux Préparatoires associated with
it would suggest that political groups cannot be included in the list of protected groups under
the Convention. A reading of the Genocide Convention along with the Travaux Préparatoires
associated with it would suggest that political groups cannot be included in the list of
protected groups under the Convention.14
In my opinion the accused committed a genocide crime.

IV. OPERATION DEXTARE:

DEFENCE: The luring operation is in clear breach of Article 9(1) of the International Convention
on Civil and Political Rights (ICCPR), which states: “Everyone has the right to liberty and security
of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his

10
The Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Judgement), ICTR-95-1-T
11
Prosecutor v. Goran Jelisic (Appeal Judgement), IT-95-10-A; Prosecutor v Krstić (Appeals Chamber Judgment), Case
No IT–98–33–A
12
United States of America v. Otto Ohlendorf et al. , (Case No. 9), Opinion and Judgment, in Trials of War Criminals
before the Nuremberg Military Tribunals under Control Council Law No. 10, vol. 4 (Buffalo: William S. Hein, 1997)
13
Prosecutor v. Dragan Nikolić, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, IT-
94-2
14
The Prosecutor v. Georges Anderson Nderubumwe Rutaganda (Judgement and Sentence), ICTR-96-3-T

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liberty except on such grounds and in accordance with such procedure as are established in law.” 15
As per the ICTY, human rights violations of egregious nature must prevent the exercise of
jurisdiction by the Tribunal.16 Similar ruling adopted by the International Criminal Tribunal for
Rwanda as per which such erroneous proceedings against the human rights of the accused may
vitiate the sanctity of the entire judicial process.17

All forms of evidence obtained through an illegal arrest are to be held inadmissible by a court of law
as per the Fruits of a Poisonous Tree Doctrine and according to defence the arrest of Jorden was
illegal.18

VICTIM : International Criminal Law incorporates the principle of mala captus bene detentus –
which states that even if wrongly captured, the accused was rightly kept and tried. The interest of the
world community must be considered while determining the validity of an illegal operation,
particularly in instances where the crime committed is that of genocide. 19 Luring operations
consistent with State practice such as the Ker-Frisby Doctrine.20

EXPERIENTIAL ASPECT : ANALYSIS & OBSERVATION IN THE ROLE

OF WITNESS AND ITS PRACTICAL ASPECT.

During SICTA 2019 I was made two witnesses. The details pertaining to the same are listed below –

1. DEFENCE WITNESS NO. 3 – Dr. William Innuyasha

Dr. William Innuyasha was a British national and Professor from the Department of Population and
Demographic Studies, Central University of Ghana. The witness is researcher and commentator on
various issues involving population crisis and sustainable management.  He testified against the
claim of an imminent threat of extinction to the Philos due to the controversial actions of the
Xuanian government.

1.      He asserted that there are countries like Labour Republic which have a larger
concentration of Philos than Xuan.
15
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations,
Treaty Series, vol. 999, 171.
16
Prosecutor v Nikolić, , Case No. IT-94-2-PT, 9 October 2002.
17
Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72.
18
Nardone v. U.S, 308 U.S. 338 (1939)
19
Attorney Gen of Israel v Eichmann 36 ILR 5 (D.C. Jer. 1961) (Eichmann District) 70-71
20
Frisbie v. Collins 342 U.S. 519 (1952) (U.S. Supreme Court) 522

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2.      Also, the global increase in the population of Philos, in Xuan stands at a rough estimate of
2% per year, and even by 2008, Xuan’s total population stood at 13% of the world total.
3.      Further, the total decrease in the population of Philos in Xuan could be because of a lot of
other reasons which like emigration, aging, frequent intermarriages or death due to genetic
diseases common to the community.
4.      Of course, this is not to state that loss of human population is no loss at all. My
sympathies lie with everyone who is a subject of state sponsored decimation.
5.      Comparing what happened in Xuan with the yardstick developed for measuring the loss
during the 2nd World War is unjustified for 2 reasons – one, unlike Germany, Xuan did not
participate in active murders as a country; and two, unlike other communities such as the
African American community which has developed a distinct identity of its own on a ethnic
ground, the Philos of Xuan stand only as tall as the Philos around the world.”

2. VICTIM WITNESS NO. 1 - 

1.      The witness was a Xuanian Philo and worked all his adult life as a clerk in the Proletariat
Society of Xuan.  
2.      He was compelled to undergo a sterilization process at a government.
3.      As per his statement, after 2008 elections after PTA got elected, Philos were
discriminated against Sophist in the department and were threatened with serious
consequences.
4.      Then during the reign of Karlz Puyole, as PTA head, a circular was issued by the central
ministry (TPA Scheme) whereby, all government employees and their families were
compelled to undergo some medical screenings.
5.      As per the affirmations given by governmental authorities, the tests had detected some
disease in the body of the witness and the details were shared via a handout which were
written in a language they could not read.
6.      And government obligated them to undergo operation as the disease was said to be
jeopardizing for the health of the entire workforce. Hence, operation was unescapable as they
were threatened to be terminated from employment for risking the life of other employees
and the country.  
7.      It was only in the summer of 2013 that the victim became aware of these forced
operations inflicted only upon his fellow Philos in village.

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