7th AMITY NATIONAL MOOT COURT COMPETITION 2014

IN THE INTERNATIONAL COURT OF JUSTICE PEACE PALACE, THE HAGUE NETHERLANDS

CASE CONCERNING THE INTENATIONAL CRIMINAL LAW PROSECUTOR

v. PROSECUTOR
RESPONDENT

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

MEMORIAL for the RESPONDENT

TABLE OF CONTENTS

LIST OF ABBRE IATIONS............................................................................................................ i INDE! OF AUTHORITIES.....................................................................ii STATEMENT OF JURISDICTION............................................................................................... iiv STATEMENT OF FACTS................................................................................................................ v ISSUES RAISED............................................................................................................................ vi SUMMARY OF ARGUMENTS..................................................................................................... vii BODY OF PLEADINGS.................................................................................................................. 1 A. ICC "#$$%t &'&(")*& )t* +,()*-)"t)%$ %v&( th& "#*&.................................................................... 1
B. I$ .)/ht %0 th& 1(%t&*t 2#-& 34 th& *t#t& %0 N#5%.)#, th& "#*& )* $%t #-2)**)3.& 3&0%(& th& ICC. . 4

C. 6h&th&( th& ICC h#* 1%7&( t% &'&(")*& th& (&t(%*1&"t)v& +,()*-)"t)%$ %$ th& /)v&$ 2#tt&(. %

...................................................................................................................................................... 7
D. Th& #((&*t #$- *,3*&8,&$t t(#$*0&( %0 M(. .,"#$9# t% ICC )* )..&/#......................................... 9 E. Th& #"",*&- )* $%t /,).t4 %0 0%..%7)$/ "()2&*:........................................................................
12

PRAYER......................................................................................................................................... xii

LIST OF ABBRE IATIONS A(t. Article (unless otherwise noted, Art. Designates articles of the Rome Statue) Ch#23&( F#"t* G&$%")-& C%$v&"t)%$ Pre-Trial Cham er !acts and Procedural "istor#
$nternational Con%ection on the

Pre%ention and Punishment of the Crime of &enocide, Dec ', (')*, +* ,.-.T.S. .++, .*/. ICC ICJ ICRC ICTR $nternational Criminal Court $nternational Court of 0ustice $nternational Committee of Red Cross $nternational Criminal Tri unal of Rwanda ICTY $nternational Criminal Tri unal of !ormer 1ugosla%ia ILC N%. Th& St#t,& Th& R,.&* UDHR $nternational 2aw Commission -um er
The Rome Statue Rules of Procedures and 3%idence

,ni%ersal Declaration of "uman Rights

UN

,nited -ations

INDE! OF AUTHORITIES Cases

Shaw %s. , 5u lic of 5rosecution *. ............................................................................................................................................... .............. 7 R. s. manle#, . 8cto er (''6, 5ara +/. .............................................................................................................................. 7 $nternational Court of 0ustice, SS Lotu$ '(rance %. Tur)e*), PC$0 ('.+ Series A, -o. (/, + Se5tem er ('.+, 9Cited as Lotu$ Case: ...................................................................................................................... 5 $srael, Eichman, Su5reme Court, ;udgement of .' <a# ('=., 3nglish translation in 7= $2R. .................... 5 Luban a, 0udgement on the A55eal against the decision on the Defence Challenge to the 0urisdiction of the Court 5ursuant to Article (' (.) (a), Case -o> $CC-/(?/)-/(?/=, () Decem er .//=. ...................... 9

#ro$ecutor %. "la$)ic, $T-'6-() 0udgement, 7 <arch ./// (hereinafter @The "la$)ic +u% ement,) Declaration of 0udge Shaha uddeen. ........................................................................................................

#ro$ecutor %. Nahimana et al!, (Case -o. $CTR-''-6.-T) 7 Decem er .//7 ............................................. 2 #ro$ecutor -. Omar Ha$$an Ahma% Al "a$hir, Decision on the Prosecutors A55lication for a 4arrant of Arrest against 8mar "assan Ahmad Al Aashir, Pu lic Redacted Bersion, Case -o> $CC-/.?/6-/(?/', ) <arch .//'. .............................................................................................................................................. 9

Ri-ar% %. .nite% State$, ,S Court of A55eal ;udgment of 7+6 ! ed **. (6th Cir. ('=+) ............................ 5

The 2ands of Palmas Ar itration, (Netherlan%$ %. .nite% State$), ('.*, ., R$AA *.'............................. 5

Other Authorities
Antonio Cassese, The international criminal Court/ the ma)in of the Rome $tatute i$$ue$0 ne otiation$0 re$ult$0 edited # Ro# S. 2eeC in coo5eration with The Pro;ect on $nternational Courts and Tri unals, 5u lished # The "ague> Dluwer 2aw $nternational, c('''. at =/= (hereafter @Antonio CasseseE). ......3

$.C.0. Re5orts ('6+, 5. 67? 4$P8, Case -o. D.//)-/676, .//)............................................................ 6

$C0 Re5orts, ('66, 55.), .7C .. $2R, 55. 7)',7=/. at +.6...................................................................... 3

$CRC, Ho1 i$ the term 2Arme% Conflict3 %efine% in international humanitarian la1F , 85inion Pa5er, <arch .//*, 5.7............................................................................................................................. 7

$CRC, #rotection of 4ictim$ of Non5International Arme% Conflict$, Document 5resented at the Conference of go%ernment eG5erts on the reaffirmation and de%elo5ment of international humanitarian law a55lica le in armed conflicts, Bol. B, &ene%a, .) <a#-(.0une ('+(, 5.+'..*

$CT1, 8rder granting lea%e for withdrawal of charges against &o%edarica, &ru an, 0an;icH, DosticH,Pas5al;, Pa%licH, Po5o%icH, Predo;e%icH, Sa%icH, Aa icH and S5aon;a issued # 0udge Riad on * <a# (''*.......................................................................................................................................6 0. Del rucI J R. 4olfrum, 4ol)errecht, Part $?7, (()6,( .nd edition, .//.).............................................1

Rome Statute
Art. (..

.......................................................................................................................................................
1,3 Art (. (.)...........................................................................................................................................4 Article (. (.) ( )................................................................................................................................1 Art.(. (7)

.......................................................................................................................................................
1,2 Art. 6* (()(a)......................................................................................................................................9 article *'(()....................................................................................................................................... 1 article '7........................................................................................................................................... 1 article (/' (().................................................................................................................................... 1 article ((+..........................................................................................................................................1

STATEMENT OF JURISDICTION The Prosecutor has a55roached the "onora le $nternational Criminal Court under Article 6 read with Article (7 (a) of the Rome Statue. The Defendant res5ectfull# o ;ects the ;urisdiction of the Court as it does not ha%e the ;urisdiction to entertain the instant case.

STATEMENT OF FACTS $. -araKlia got inde5endences from the 3uro5ean continent in late (''/s.due to internal dissension, the %arious unified nations could e attained. as struggle continue, a li eral democratic Constitution was ado5ted # countr# and res5onsi le go%ernment form # a 5o5ular %ote. Aut soon cou5 dLetat was arranged # the militaril# wings led # <r.lucanIa hence ecome the 5resident of the countr#. lucanIa defended the right of the o%er the masauri tri e including conducting of hate s5eeches, confiscation and a55ro5riation of their 5ro5ert#. During regime of the go%ernment made draconian laws which 5ro%ides the tra5 for man# of its citiKen J hence creating animosit# among two grou5s.

II.

The grou5 of <r. lucanIa o55osed J did not sing the Rome statue of international criminal court 5resuming that its hand tool of the 3uro5ean J American ideolog#. the following ste5s J attracted tremendous Pressure from the international communit# to mend its wa# and threatened with economics and 5olitical sanction $n re5ressi%e 5olicies of united nation,naKolia faced e%en through the go%ernment still refused to sing and ratif# the rome statue of international criminal court. # isolated from international regime.it was alleged that the haIa#u tri e was eing su55orted # go%ernment and militaril# elite and also the also the of haIa#u threatened the masuari tri e with dire conseMuences in all forms of media. $t was re5orted that haIa#u tri e was eing secretl# funded # the ruling go%ernment for carr#ing out a s#stematic and meticulous eGtermination of the masauri tri e.

$$$.

During the national rall# organiKed # masuari tri e. the leader to air grie%ance. the leader o5enl# talI a out an eGisting neGus etween the go%ernment and haIa#u tri e and condemned then oth for su55orting J s5onsoring of %endetta. Reaching a out reaI 5oint during s5eech resulting in out reaIing %iolation. $n which houses of masuari 5eo5le were urnt J men, women and children were massacred on a large scale and masauri women were humiliated and ra5ed J their children were forci l# transferred and were ultimatel# re5orted as missing. The go%ernment hos5itals were carr#ing out o5erations which 5re%ented the irth of male children among the masuari tri e, the most of the tragic incident was witnessed in the 5ro%ince of ;aKulu where the thousand of

masuari citiKen died due to as5h#Giation with toGic gases, use for the 5roduction of drugs and chemicals. the following sectors was com5letel# controlled # the go%ernment and it was alleged that this was deli erate attem5t # the go%ernment to wi5e the entire ethnic 5o5ulation of masauri tri e. As 5er the re5ort of the national in%estigation committee which was set u5 and it was re5orted the national census de5artment has leaIed the data which showed the highest concentration of masauri 5eo5le in the entire countr# to the 5rominent leader of haIa#u tri e . the alleged charge were o55osed # the go%ernment and in%ol%ement that the artrocities continued till ./() and %iolence are a ruse manufactured # the masauri tri e itself and create a situation of ci%il war and to55le the go%ernment. $B. Peo5le ecome a %iolent when during huge demonstration in the front of the 5resident <r. 2ucanIa official residence and when few gunshots were failed, the 5olice and militar# of came down with hea%# hand and most of the ci%ilians were gunned down or is eheaded at the 5resident official residence. $t was alleged that it was 5eaceful assem l# and it was s5ecific intent of the official eGterminate the 5eaceful crowd eforehand. As a result masauri 5eo5le were s#stematicall# Iilled all o%er the nation. The first 5resident elections since the cou5 were conducted in ./() under the 5ressure of the international communit# under the rulling go%ernment of the countr# under which mr naIo i was selected a P.<. and immediatel# signed and ratified the rome statute of international criminal court. 4hen the go%ernment tried the former 5resident and it was disco%er that most of the ;udge of the countr# lo#alist toward former 5resident at the same time the current go%ernment had some 5ro lem in controlling some of the reason which were com5letel# inha ited # the mem er of the haIa#u tri e. The current go%ernment antici5ating that the national trial would nothing ut a sham. The go%t now referred to $CC under rome statute under art. (7 and handed o%er the documents suggesting the e%ol%ement of former 5resident in the s#stematic genocide against the masauri tri e.

B.

The 5rosecutor of the $CC tooI cogniKance of the matter and initiated the in%estigated. 2ater on 5re-trial cham er issued arrest warrent in the name of mr. 2ucanIa accused him of committing acts of genocide. Su seMuent during the trial cham er of the $CC, <r. 2ucanIa raised issued regarding the ;urisdiction of the court and alleged crime committed efore ( ;ul# .//. and hence $CC could not a55l# its ;urisdiction res5ecti%el# and also, he was not tried efore the national tri unal and the eGhaustion of the local remedies rule was %iolated and hence he did not 5lead guilt# against the charge frame. The defence also raised the 5ointed the during his resign he ne%er rectif# rome statute of international criminal court and the new elected go%t. -ot a legal go%t. Aecause it fails on effecti%e control test.

B$.

<r. 2ucanIa was detained for three months without Inowing the charges made against him and without eing charged and also his arrest warrant was in 3nglish language. Soon during the trial another cou5 was arranged # militar# wing and withdrew -aKolia from the Rome Statute of $CC

ISSUES RAISED

..(. ....

4hether the $CC has the ;urisdiction to tr# the case against <r. lucanIa. 4hether in light of the 5rotest made # the state of <r. lucanIa, the case is admissi le efore the $CC.

..7. ..). ..6. ..=. ..+.

4hether the $CC has 5ower to eGercise the retros5ecti%e ;urisdiction on the gi%en matter. 4hether the arrest and su seMuent transfer of <r. lucanIa to $CC is legal. 4hether the Accused is guilt# of following crimes. Crime of &enocide under Article =(a) of the Rome Statute. Crime against "umanit# under Article +(()(g) ( Ra5e, seGual Sla%er#, 3nforced

Prostitutution, !orce Pregnanc# or an# other form of seGual %iolence of com5ara le &ra%it#) enlisted in the Rome statute. ..*. 4ar crimes under Article*(.) ( ) (G%iii) (em5lo#ing as5h#Giating, Poisonous or other

gases, and all analogous liMuids, materials or de%ices.)

SUMMARY OF ARGUMENTS 1. ICC "#$$%t &'&(")*& )t* +,()*-)"t)%$ %v&( th& "#*&. The Court cannot eGercise its ;urisdiction o%er the case. The ;urisdiction ratio tempori$ has not een esta lished since <r. 2ucanIa ha%e o55osed the treat# and also not acce5ted the ;urisdiction # not maIing an# declaration lodged with Registrar as to acce5t the eGercise of ;urisdiction # the Court to the Crime in the Muestion. There was no intention for @full destructionE of masauriLs 5o5ulation and the act has not reached the standard of genocide as 5rescri ed in Article =. The Prosecutor failed to meet the reMuirements of the 5reconditions to ena le the $CC to eGercise its ;urisdiction referred to Art. (. (.), since> (i) the territorial State of the crime committed here is not a State Part# to the Statute at the time of crimeC (ii) the state of nationalit# of the accused is not a State Part# to the Statute either. 2. I$ .)/ht %0 th& 1(%t&*t 2#-& 34 th& *t#t& %0 N#5%.)#, th& "#*& )* $%t #-2)**)3.& 3&0%(& th& ICC. The $CC is im5eded to anal#Ke the merits of the case due to the 5rinci5le of com5lementar#, and second, the gra%it# of the acts 5er5etrated does not ;ustif# the resource to the Court. The $CC is arred from eGercising 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 -aKolia has ;urisdictionC and it ne%er showed its unwillingness and its ina ilit# of ad;udication. -aKolia has shown interest in 5rosecuting the <r. 2ucanIa. The urden of 5roof of demonstrating that -aKolia go%t. has not conducted an in%estigation or is unwilling or una le of conducting a fair trial is u5on those alleging it. -aKolia go%t. has merel# states that most of the ;udges of the countr# were lo#alist right wing mem er of 2ucanIaLs 5art# and also held that it had difficult# in controlling some of the regions which were com5letel# inha ited # mem ers of the "aIa#u tri e. There was no sufficient gra%it# to ;ustif# further action # the Court.

;. Th& #((&*t #$- *,3*&8,&$t t(#$*0&( %0 M(. L,"#$9# t% ICC )* )..&/#.. There are no reasona le grounds to elie%e that <r. 2ucanIa has committed genocide, crimes against humanit# and war crimes. Article 6* (() (a) remains unsatisfied. There is no necessit# to arrest him 5ursuant to Art. 6* (() ( ). &i%en the nature of his role as "ead of State, the accused did not 5ose a risI of a sconding and his arrest and detention was illegal ecause he was ar itraril# arrested and detained # the national authorities of the -aKolia efore eing transferred to $CC. "e was detained in naKolia for three months without learing the charges against him and without eing charged and his arrest warrant was written in the 3nglish language which he did not understand. These grounds should %itiate the trial. The Cham er,s authoriKation of the arrest of the Accused was not onl# unlawful ut 5oliticall# insensiti%e and, had the crime actuall# taIen 5lace, would ha%e een counter-5roducti%e. 4. Th& #"",*&- )* $%t /,).t4 %0 "()2& %0 G&$%")-& ,$-&( A(t)".& < =#>, "()2& #/#)$*t H,2#$)t4 ,$-&( A(t)".& 7=1> =/>, 7#( C()2&* ,$-&( A(t)".& ?=2> =3> ='v)))> &$.)*t&- )$ th& R%2& St#t,&. There are elements that show the lacI of genocidal intent. The accused is not guilt# of crime against "umanit# under Article +(() (g). <r.2ucanIa had no Inowledge of the attacI as ne%er ordered to carr# out such actions. There was no s#stematic and wides5read attacI carried out # other 5erson. The 5oint regarding direction against a ci%ilian 5o5ulation also fails to designate these actions as crimes. The Defendant did not 5ossess the reMuisite mens rea necessar# to designate their actions as crimes under Article +(() (g). The go%t. would not e held lia le under Article * (.) ( ) (G%iii) as there was no intention to directl# attacI against masauri tri e 5eo5le. &o%t. was not in%ol%e in this tragic incident when thousands of masauri citiKen died due to the as5h#Giation. The atrocities and %iolence are a ruse manufactured # the masauri tri e itself and these are the artificial created situation # the masauri leaders themsel%es and their igger 5lan is to create a situation of ci%il war and to to55le the go%t. <r. lucanIa had no intention to create this s#stematic situation.

BODY OF PLEADINGS A. ICC "#$$%t &'&(")*& )t* +,()*-)"t)%$ %v&( th& "#*&. #> Th& J,()*-)"t)%$ ratio temporis )* $%t &*t#3.)*h&- #""%(-)$/ t% A(t. 11. $t is in dis5ute that the &uri$%iction ratio tempori$ has een esta lished since the alleged crime tooI 5lace in efore ( ;ul# .//. and <r. lucanIa ha%e o55osed the treat# and signified that the accused would ne%er ha%e signed the treat# and no <r. lucanIa will e%er e considered to e ound # the same. 3%en after the formation of new go%t. under <r.-aIo i, immediatel# signed and ratified the rome statute of $CC. <oreo%er, <r. -aIo i has not acce5ted the ;urisdiction # maIing an# declaration lodged with Registrar as to acce5t the eGercise of ;urisdiction # the Court to the crime in the Muestion. 4ith regard to the ;urisdictional asis ratione per$onae, the $CC-Statue maIes reference solel# to the well recogniKed and uncontro%ersial acti%e 5ersonalit# 5rinci5le when it states that the Court ma# onl# eGercise its ;urisdiction if the alleged 5er5etrator of the crime is a national of a State 5art# or a national of a state which has acce5ted the ;urisdiction of the Court.
7 . 6

The $CC-Statue does not im5ose an o ligation for a non-state to co-o5erate with the Court according to articles *= et seM. of the $CC-Statue. A num er of other eGisting ;urisdictional ases are not included in the $CC-Statue, namel# the uni%ersalit# 5rinci5le and 5assi%e 5ersonalit# 5rinci5le. Regarding the uni%ersalit#, one would concei%e of a case in which 5er5etrator is in the custod# of a State 5art#. $n such a constellation, the $CC would not e a le to claim ;urisdiction o%er that 5erson, although the uni%ersalit# 5rinci5le would grant the state where the 5er5etrator is held to do so. $t is not howe%er sur5rising that the 5assi%e 5ersonalit# and ci%il law countries. 7.(.
The Court has ;urisdiction onl# with the res5ect to crimes committed after the entr# into force of this Statue. $f a State ecomes a Part# to this Statue after its entr# into force, the Court ma# eGercise its ;urisdiction onl# with the res5ect to crimes committed after the entr# into force of this Statue for that State, unless that State has made a declaration under article (., 5ara. 7. 7... Article(. (7) of the Rome Statue.
6 = )

did not entr# into the $CC-Statue gi%en the dis5arate %iews held on this etween common law

7.7. (. (.) ( ) of the Rome Statue. Article 7.).o ligations of State Parties to the $CC-Statue are to 5ro%ide funding (article ((+ $CC-Statue), e%idence (article The 7.6. $CC-Statue) and other of coo5eration to the $CC (article (/' (() $CC-Statue) and surrender and transfer of indicted 5ersons to the forms $CC (article *'(() $CC-Statue). (). 0. Del rucI J R. 4olfrum, 4ol)errecht, Part $?7, (()6, (.nd edition, .//.). (6. The 5assi%e 5ersonalit# 5rinci5le a55lies when the %ictim(s) of criminal conduct is a?are national(s) of a state 5art#. (=.

3> Th& J,()*-)"t)%$ ratione materiae )* $%t &*t#3.)*h&- )$ th)* "#*&. The defendant counsel would liIe to focus on the issue whether <r. 2ucanIaLs statement falls within the range of incitement to genocide and has reached the standard set # Article .6 (7) (e) which could maIe him 5ersonall# lia le of committing genocide or not. Aut it is noticea le that the criminaliKation ma# run contrar# to the fundamental right to free eG5ression. A delicate line must e drawn to determine which range it falls within. 1ears of tension in -aKolia state maIes the region such a dangerous 5owder Ieg. 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 atmos5here of 5ress freedom in <r. 2ucanIa is irrele%ant in determining the criminal lia ilit# of <r. 2ucanIa. $t is onl# rele%ant when discussing the media lia ilit# of inciting genocide, <r. 2ucanIa "erald for instance, in the inciting acti%it#. <r. lucanIas statement falls out of the range 5rotected under the notion of free eG5ression. <r. 2ucanIa was not eG5licitl# calling for destruction of masauri 5eo5le. The accused was onl# against those 5eo5le who etra# the cause of his great nation. There was no intention for @full destructionE of masauriLs 5o5ulation and it has not reached the standard of genocide as 5rescri ed in Article =. $ncitement to genocide is not merel# causing others to commit genocide. An intent as 5rescri ed in Article 7/ is needed. There must e a 5ro%oIing, eGhorting, or 5romoting others to engage in genocidal acts on 5ur5ose.
' * +

"> Th& T&21%(#. J,()*-)"t)%$ )* $%t &*t#3.)*h&- )$ th)* "#*&. -aKolia as the nationalit# of the accused is a non-state 5art# to $CC and is unliIel# to acce5t the CourtLs ;urisdiction # declaration as 5ro%ided in Para 7 of Art. (. , es5eciall# when the accused is the head of state at the time as eG5lained earlier.
(/

+. #ro$ecutor %. Nahimana et al!, (Case -o. $CTR-''-6.-T) 7 Decem er .//7, in which $CTR con%icted three media men for the crime of inciting genocide. *. !or theor 5ur5ose this Statue, @genocideE means an# of the following acts committed with intent to destro#, in whole in 5art,of a national, ethical, racial or religious grou5. '. ,nless other 5ro%ided, a onl# 5erson shall e criminall# res5onsi le and liawith le for 5unishment for a crime within the ;urisdiction of the Court if the materials elements are committed intent and Inowledge. (/. Art. (. (7) of the Rome Statue. $t has 5ro%ided a wa# for non-state to acce5t $CC s ;urisdiction # maIing declaration. ((.

-> Th& 1(&"%$-)t)%$* 7h)"h #(& (&8,)(&- #* # 2,*t 0%( th& ICC t% 3& #3.& t% &'&(")*& )t* J,()*-)"t)%$ )* $%t 0,.0)..&- #""%(-)$/ t% A(t. 12. A5art from the fundamental rule that States, # ecoming 5arties to the Statute, acce5t the ;urisdiction of the $CC with res5ect to the crimes referred to in Art. 6, the Court must fulfill other two conditions to eGercise its ;urisdiction in accordance with Art. (. (.). 4ith regard to the decisi%e Muestion, it la#s down that State acce5tance is necessar# from either the territorial State or the State of the nationalit# of the accused or oth.
((

"ere, the Prosecutor failed to meet the reMuirements of the 5reconditions to ena le the $CC to eGercise its ;urisdiction referred to Art. (. (.), since> (i) the territorial State of the crime committed here is not a State Part# to the StatuteC (ii) the state of nationalit# of the accused is not a State Part# to the Statute either.
(.

-aKolia is not a State Part#, so acti%ities on its territor# do

not 5ro%ide the $CC with territorial ;urisdiction 5ursuant to Art. (. (.) (a). The Prosecution can 5ro%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 5resent case, newl# elected go%t. of <r. -aIo i immediatel# signed and ratified the rome Statute of $CC which was not a legal go%t. ecause it still does not control a siKea le 5ortion of -aKolia and therefore does not Mualif# the @effecti%e control testE so naKolia was not a state 5art#. This is an im5ortant as5ect entirel# lacIing in the 5resent case where there is no sense of 5ro5ortionalit#, gra%it# or indeed logic ;ustif#ing 5rosecution. As demonstrated # eGtensi%e state 5ractice and opinion &uri$, it is an esta lished rule of international customar# law that the State of the nationalit# of the accused can thus eGercise eGtraterritorial ;urisdiction at least with regard to the most serious crimes under international criminal law. The $nternational Court of 0ustice noted in Nottebohm that, according to state 5ractice, nationalit# was> a legal ond ha%ing as its asis a social fact of attachment, a genuine connection of eGistence, interests and
(7

sentiments, together with the eGistence of reci5rocal rights and duties.

$t is o %ious that in this

case, the onl# state of nationalit# of the accused, <r. lucanIa, is -aKolia. As is mentioned, 2ucanIa is not signator# to and thus also not a State Part# to the Statute. "ence, the Prosecutor failed to fulfill the 5reconditions reMuired in Art. (. (.) for the $CCs eGercise of ;urisdiction. ((.
Antonio Cassese, The international criminal Court/ the ma)in of the Rome $tatute i$$ue$0 ne otiation$0 re$ult$0 edited # Ro# S. 2eeC in coo5eration with The Pro;ect on $nternational Courts and Tri unals, 5u lished # The "ague> Dluwer 2aw $nternational, c('''. at =/= (hereafter @Antonio CasseseE). (.. Art. (. of the Rome Statue.

(7.Re5orts, ('66, 55.), .7C .. $2R, 55. 7)',7=/. at +.6. $C0 ().

4ith no factual ases for article (. ;urisdiction, the defendant will argue for no%el grounds for ;urisdiction that are unsu55orted # the Statute, which does not 5ermit eG5anding ;urisdiction. The Pre-Trial Cham er 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 road reading of article (.. Article (. is eG5licit, conclusi%e, and clear on the issue of what @ma#E 5ro%ide the Court ;urisdiction, and there is no language within the Rome Statute generall# that encourages alternati%e a55roaches.
()

Second, a no%el inter5retation would harm the integrit#

of the Court. The 5reconditions to the eGercise of ;urisdiction detailed in article (. were carefull# negotiated and drafted during the Rome conference and were considered among of the most im5ortant and contro%ersial 5ro%isions of the Statute. B. I$ .)/ht %0 th& 1(%t&*t 2#-& 34 th& *t#t& %0 N#5%.)#, th& "#*& )* $%t #-2)**)3.& 3&0%(& th& ICC. #> Th& "#*& )* $%t #-2)**)3.& 3&0%(& th& ICC. Articles (+ to (' of the Rome Statute determine the conditions of admissi ilit#, which can e defined as reMuirements to the acce5tance of a s5ecific case o%er which the $CC has ;urisdiction. The 5resent situation is inadmissi le efore the $nternational Criminal Court, once the reMuirements esta lished in the Rome Statute are com5letel# fulfilled. 3> P()$")1.& %0 C%21.)2&$t#()t4. The $CC is ased on the 5rinci5le of com5lementar# where # the Court is su sidiar# or

com5lementar# to national courts. These courts en;o# 5riorit# in the eGercise of ;urisdiction eGce5t under s5ecial circumstances, when the $CC is entitled to taIe o%er and assert its ;urisdiction. This a55roach undertaIen # the Statute was ado5ted since, the national courts ma# ha%e more means a%aila le to collect the necessar# e%idence and to la# their hands on the accused, and also since there was the intent to res5ect State so%ereignt# as much as 5ossi le.

()

Art (. (.) of the Rome Statue.

Com5lementar# is laid down in 5aragra5h (/ of the Pream le Statute

(6

as well as in Article ( of the

and is s5elled out in Articles (6, (+, (* and ('. Due to this 5rinci5le the Court is arred

from eGercising 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 ;urisdictionC and the State is willing and has the a ilit# of ad;udging (Art. (+.( (a).
(+

"> N#5%.)# *t#t& h#* t&(()t%()#. +,()*-)"t)%$ %v&( M(. .,"#$9#. The asic 5rinci5le of territorialit# determines that a crime committed in a StateLs territor# is ;ustifia le in that State. $n the 2otus case, the Permanent Court of $nternational 0ustice stated in ('.+ that @in all s#stems of law the 5rinci5le of the territorialit# character of criminal law is fundamentalE ((rance %. Tur)e*, ('.+, 5. ./). States
(' (*

!urther, a ,S Court stated in Ri-ar% %. .nite%

that @all the nations of the world recogniKe the 5rinci5le that a man who outside of a

countr# willfull# 5uts in motion a force to taIe effect in it is answera le at the 5lace where the e%il is done.E The 5rinci5le is grounded asic 5rinci5le of territorial so%ereignt#, which denotes the en;o#ment of rights o%er territor#. Territorial so%ereignt# in%ol%es the eGclusi%e right to dis5la# the acti%ities of a State (Netherlan%$ %. .nite% State$, ('.*, Para. *.').
./

-aKolia is a

so%ereign State, and, for that reason, the 5rinci5le of territor# would 5ros5er. $n addition, there are two im5ortant ad%antages, which ;ustif# its a55lica ilit#. !irst, the locus delicti commissi (the 5lace where the offence has allegedl# een committed) was within -aKolia, countr# where it is easiest to collect e%idence. $t is therefore considered the a55ro5riate 5lace of trial (I$rael %. Eichman, ('=.).
.(

(6

3m5hasiKing that the $nternational Criminal Court esta lished under this Statue shall e com5lementar# to national criminal ;urisdictions. ('. $t shall e a 5ermanent institution and shall ha%e the 5ower to eGercise its ;urisdiction o%er 5ersons for the most serious crimes of international concern, as referred to in this Statue, and shall e com5lementar# to national criminal ;urisdictions. ./. The case is eing to in%estigated or 5rosecuted a State which has ;urisdiction o%er it, unless the State is willing or una le genuinel# carr# out the in%estigation#or 5rosecution.

.(. $nternational Lotu$ Case:. Court of 0ustice, SS Lotu$ ((rance %. Tur)e*), PC$0 ('.+ Series A, -o. (/, + Se5tem er ('.+, 9Cited as Ri-ar% ... %. .nite% State$, ,S Court of A55eal ;udgment of 7+6 ! ed **. (6th Cir. ('=+). The 2ands of Palmas Ar itration, (Netherlan%$ %. .nite% State$), ('.*, ., R$AA *.'. .7. $srael, Eichman, Su5reme Court, ;udgement of .' <a# ('=., 3nglish translation in 7= $2R. .). .6.

-> B,(-&$ %0 P(%%0 $t is a well esta lished 5rinci5le that ad faith cannot e 5resumed under international law.
..

-aKolia has shown interest in 5rosecuting the <r. 2ucanIa. $t is not to the -aKolia authorities to 5ro%e that the# will conduct such 5rocedures as determined # a55lica le law. Trust has also een acInowledged as asic 5rinci5les that guide $nternational 2aw (A$2D3R, ('*(, 5. .')).
.7

the urden of 5roof of demonstrating that -aKolia go%t. has not conducted an in%estigation or is unwilling or una le of conducting a fair trial is u5on those alleging it. -e%ertheless, there are facts and e%idences that demonstrate that -aKolia go%t. will indeed com5l# with its o ligations when tr#ing the <r.2ucanIa. -aKolia state claimed that it is the %iolation of their so%ereignt# when <r.-aIo i go%t. surrender <r. 2ucanIa to the $CC as the state itself wanted to carr# out the in%estigation against <r. 2ucanIa. 0> Th& "()2&* "%22)tt&- )$ N#5%.)# -% $%t +,*t)04 th& #"t)%$ 34 th& C%,(t. The Court shall determine the case is inadmissi le where the case is not of sufficient gra%it# to ;ustif# further action # the Court. ,nder international law, national or territorial states ha%e the right to 5rosecute and tr# international crimes, and often e%en a dut# to do so. !urther, national ;urisdiction o%er those crimes is normall# %er# road, and em races e%en lesser international crimes, such as s5oradic or isolated acts, which do not maIe u5, nor are 5art of, a 5attern of criminal eha%ior. 4ere the $CC also to deal with all sorts of international crimes, including those of lesser gra%it#, it would soon e flooded with cases and ecome ineffecti%e as a result of an eGcessi%e and is 5ro5ortionate worIload. $t is therefore Muite a55ro5riate that the $CC should inter%ene onl# when national institutions fail to do so ($CT1, 8rder, (''*). action # the Court.
.)

There were no

armed conflict, as alread# clarified a o%e, and therefore no sufficient gra%it# to ;ustif# further

... $.C.0. Re5orts ('6+, 5. 67? 4$P8, Case -o. D.//)-/676, .//). .7. Richard Auilder, The Role of Trust in $nternational 2aw, a%aila le at htt5>??ssrn.com?a stractN'(.+)(, ('*(. .). $CT1, 8rder granting lea%e forAa withdrawal of charges against &o%edarica, an,(''*. 0an;icH, DosticH,Pas5al;, Pa%licH, Po5o%icH, Predo;e%icH, Sa%icH, icH and S5aon;a issued # 0udge Riad on&ru * <a# .6.

C. 6h&th&( th& ICC h#* 1%7&( t% &'&(")*& )t* 1(%v)*)%$* (&t(%*1&"t)v&.4. The $CC has no 5ower to eGercise the retros5ecti%e o5eration under article (( of Rome statute of $CC if crime is so heinous or serious than $CC has 5ower to eGercise the retros5ecti%e o5eration. The 5ream le Rome statute recogniKed that such gra%e crime threaten the 5eace, securit# and well eing of the world. 2aw must not im5ose criminal lia ilit# for acts that were not criminal offence at the time the# were not criminal offence at the time the# were committed ut where crime is more heinous or serious or against the humanit#, the court has discretionar# 5ower to a55l# retros5ecti%e o5eration. !or the su55orting of argument A new law is alwa#s enacted in the 5ersuasion that it is etter than the former one. $ts efficac#, therefore, must e eGtended as far as 5ossi le, in order to communicate the eG5ected im5ro%ement in the widest s5here.( 4illiamsLs 5oints out that the 5rinci5le of non-retroacti%it# is associated with the retri uti%e theor# of 5unishment, as o55osed to the deterrent theor#. $f 5unishment is ;ustified as a deterrent to future wrongdoing, then new laws can onl# a55l# 5ros5ecti%el#. ,nless the 5re%ious wrongdoer eG5ected to e 5unished, the 5unishment would e useless as a deterrent. !urthermore, announcement of the change in the law should e sufficient deterrent to future wrongdoersC 5unishing 5re%ious wrongdoers would ha%e no deterrent effect u5on those future wrongdoers. "owe%er, if 5unishment is %iewed as societ#Os retri ution for moral wrongdoing, then retroacti%it# can e ;ustified. As 4illiams 5uts it> <oralit# can ha%e no s5ecial eGem5tion for those who Pcommit the oldest sins the newest Iind of wa#sP..= This a55roach tends to suggest a wide role for retroacti%it#, a role which draws criticism> ... the ado5tion of retroacti%it# as a general 5rinci5le is altogether inadmissi le ... it is un;ust ..7 Aut, acce5ting that retros5ecti%it# has a role in the retri uti%e 5unishment of wrongdoers does not mean that retros5ecti%it# need e a general 5rinci5le. Pro5onents of retros5ecti%it# onl# argue for the maIing of retroacti%e laws in eGce5tional circumstances> in situations where the wrongdoerOs acts or omissions were morall# wrong, though legal at the

26. !. C. %on Sa%ign#, o5. cit., 5. 7)) 27. &. 4illiams, o5. cit., 5. =/( 28. &. 4illiams, o5. cit., 5. =/(. 28 !. C. %on Sa%ign#, o5. cit., 55. 7)6

29. This theor# of law-maIing was reified in the much-criticised amendment of the &erman Criminal Code #
the -aKis

at the time that the# were committed, that is, where the wrongdoer has transgressed the Pnatural lawP ) According to 4illiams, a num er of eminent ;urists se%erel# criticiKed the -urem erg trials for 5ro%iding for 5unishment 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 e a crime. Aoth of these ste5s were said to go e#ond eGisting international law. The -urem erg trials are generall# said to ha%e een fair, des5ite the demonstra l# retros5ecti%e nature of the charges laid against the -aKi defendants. This is clearl# due to societ#Os a horrence of the atrocities committed # the -aKis in 4orld 4ar $$. 1et, regardless of the re5ugnant nature of what the -aKis did, it is clear that the# were denied 5rotection from retroacti%e criminal law. Des5ite these 5rotestations, most ;urists rationaliKed the eha%ior of the -urem erg court # claiming that the actions of the -aKis were so immoral as to e an eGce5tion to the 5rinci5le of non-retroacti%it#. 4illiams claims> -o in;ustice was done at -urem erg, ecause all the defendants there found guilt# were clearl# guilt# of war crimes in the traditional sense.6 At this 5oint, it is illustrati%e to Muote from the law with which the -aKis altered the &erman Criminal Code in ('76>= In the case of Shaw v. Director of Public Prosecutions Shaw was successfull# 5rosecuted under a num er of 5ro%isions of the Se7ual Offence$ Act ('6= and the Ob$cene #ublication$ Act ('6'. Shaw com5lained to the "ouse of 2ords, inter alia, that the crime of cons5irac# to corru5t 5u lic morals was hitherto unInown or innominate. All fi%e law lords u5held the con%iction. 8nl# 2ord Reid maintained that the crime with which Shaw was charged was an eGisting common law misdemeanour. The other four law lords went further. The# held that courts ha%e a residual 5ower to su5erintend offences which are 5re;udicial to the 5u lic welfare. The ma;orit# uilt their argument u5on the notion, 5ut forward # 2ord <ansfield almost two hundred #ears earlier, that the courts are Pguardians of 5u lic moralsP and that the# ought to restrain and 5unish P... whate%er is contra onos mores et decorumP.+ $n the earlier case of R. v. Manley,<anle# made false allegations of ro er# to the 5olice. Aefore the Court of Criminal A55eal she was found guilt# of Punlawfull# effecting a 5u lic mischiefP. This decision was widel# attacIed as eing an eGam5le of eG 5ost facto 5unishment, as no such crime eGisted efore R! -! Manle*.

D. Th& #((&*t #$- *,3*&8,&$t t(#$*0&( %0 M(. L,"#$9# t% ICC )* )..&/#.. The arrest and su seMuent transfer of <r. lucanIa to $CC is illegal under article '* of the Statue, $CC case law
7/

and customar# international law.

#> Th& )$0%(2#t)%$ *,32)tt&- 34 th& P(%*&",t%( -%&* $%t 2&&t th& (&8,)(&2&$t* t% )**,& #$ #((&*t 7#((#$t.

1> Th&(& #(& $% (&#*%$#3.& /(%,$-* t% 3&.)&v& th#t H&#- %0 St#t& M(. .,"#$9# h#* "%22)tt&- /&$%")-&, "()2&* #/#)$*t h,2#$)t4 #$- 7#( "()2&*. According to Art. 6* (() (a), efore the Pre-Trial Cham er issues an arrest warrant, it shall e ensure that there are reasona le grounds to elie%e that the accused 5erson has committed a crime within the ;urisdiction of the Court.
7(

"owe%er, as is argued in the first issue, <r. 2ucanIa

did not commit genocide, which is a crime within the ;urisdiction of the Court. Cases that ha%e come efore the attention of the Court where the legalit# of an arrest has een Muestioned include Luban a where defendant ha%e sought to Muestion the legalit# of the actual arrest in terms of its 5ractical im5lementation and the technical matters of the arrest. The case at hand has to e
89

constitutes an armed conflict etween states for the 5ur5ose of maIing the !ourth &ene%a Con%ection a55lica le. Aut does the internal conflict itself ecome an armed conflict etween statesF The answer is in the affirmati%e if the foreign state assumes control o%er the secessionist grou5 such that the use of force # the secessionist grou5 ecomes a use of force # the foreign state against the local state, there # gi%ing rise to an armed conflict etween the states within the meaning of Article ., first 5aragra5h, of the !ourth &ene%a Con%ection.E #ro$ecutor %. "la$)ic, $T-'6-() 0udgement, 7 <arch ./// (hereinafter @The "la$)ic +u% ementE) Declaration of 0udge Shaha uddeen.

((. #ro$ecutor %! Omar Ha$$an Ahma% Al "a$hir, Deci$ion on the Prosecutors A55lication for a 4arrant of Arrest against 8mar "assan Ahmad Al Aashir, Pu lic Redacted Bersion, Case -o> $CC-/.?/6-/(?/', ) <arch .//'. Art. (.. 6* (() (a). (7. Luban a,to 0udgement the A55eal against the decision on the Defence to the 0urisdiction of the Court 5ursuant Article ('on (.) (a), Case -o> $CC-/(?/)-/(?/=, () Decem er Challenge .//=. ().

clearl# distinguished. Article 6* (() (a) remains unsatisfied. An# 5ossi le grounds are ased on an eGtract of highl# dis5uted and unrelia le e%idence, as well as se%eral coincidental e%ents. Such e%idence cannot 5ossi l# amount to reasona le grounds that would suffice to 5ro%ide e%idence of the occurrence of a crime within ;urisdiction of the Court. 2> A((&*t %0 M(. L,"#$9# )* ,$$&"&**#(4. 3%en if <r. 2ucanIa committed incitement to genocideC there is no necessit# to arrest him 5ursuant to Art. 6* (() ( ). Cruciall#, the measures were not necessar# to Q en$ure hi$ appearance at trial3 according to Article 6* (() ( ) (i). &i%en the nature of his role as "ead of State, the accused did not 5ose a risI of a sconding. $nstead, the Court could ha%e sim5l# summoned the Accused. Additionall#, such measures were not necessar# to Qen$ure :he; %oe$ not ob$truct or en%an er the in-e$ti ation of Court procee%in 3 according to Article 6* (() ( ) (ii). There was 5lainl# nothing the Accused could ha%e done to o struct or endanger the in%estigation of Court 5roceedings. <eanwhile, the Prosecutor has initiated the in%estigation, while <r.2ucanIa has not o structed or endangered the in%estigation. The Cham er should acInowledge that the Accused has a 5u lic role and re5utation to lose. The Accused would undou tedl# e more interested in o%ertl# coo5erating with the Court and 5ro%e his innocence as o55osed to a%oid its reach.

<ost im5ortantl#, howe%er, the arrest of the Accused was not necessar# 2to pre-ent :him; continuin the commi$$ion of that crime0 or a relate% crime3 according to Article 6* (() ( ) (iii). 8n the contrar#, im5risonment of a head of state would undou tedl# 5ose the iggest indirect incitement to an# followers and allies. $t is the ultimate 5ro%ocation of %iolence. The fact that no %iolent reactions ensued, e5itomiKes the tragic misconce5tion of the Prosecution. -o crime was e%er committed. $t follows that the Cham erLs authoriKation of the arrest of the Accused was not onl# unlawful ut 5oliticall# insensiti%e and, had the crime actuall# taIen 5lace, would ha%e een counter-5roducti%e. ;> P%.)"& *h%,.- $%t #((&*t H&#- %0 St#t& M(. L,"#$9# )$ (&*1&"t t% *t#t& )22,$)t4. <r. 2ucanIa should e immune from the arrest # -aKolian 5olice. There are two Iinds of immunities in international customar# law> the functional immunit# (immunit# ratione materiae) and the 5ersonal immunit# (immunit# ratione 5ersonae). The immunit# ratione materiae of a di5lomat or head of a state is in fact state immunit#. "eads of states or go%ernments are

$n %iola le and cannot e arrested in an# foreign states. ,nder international customar# law, i.e. <r. 2ucanIa ha%e the o ligation of immunit#. $C0 held in DRC %. "el ium that high-ranIing state officials are immune from the domestic ;urisdictions of other states and this includes 5articularl# heads of state. Article .+ (.)
7) 77

4ith regard to immunit#, a literal reading of e in%oIed under an#

ma# suggest that the defence of immunit# cannot

circumstances. "owe%er, it is unreasona le to assume that the Court can ignore claims to immunit# from heads of state of non-$CC 5art# states. 4hile Article .+ states that neither the immunit# of a head of state nor the official 5osition of a sus5ected international criminal will ar the Court from eGercising its ;urisdiction, the Accused did not tr# to assert state immunit# at an international le%el. $nstead the Accused attem5ted to assert it at a horiKontal, national le%el. According to customar# international law that Court was o liged to grant the Accused di5lomatic and state immunit#. According to Article '* ((), the domestic Court could not ha%e acted u5on the reMuest of the Court ecause the Court cannot legall# reMuest taIing into custod# of a head of state from a third countr#. The Accused should not ha%e een arrested and surrendered and it would e antithetical to ;ustice if the Cham er relied on an unlawful ;udgment of a national surrender trial. 3> S,3*&8,&$t T(#$*0&( %0 M(..,"#$9# )* )..&/#.. $n accordance with Art. '* ((), the $CC ma# not 5roceed with a reMuest for surrender or assistance which would reMuire the reMuested state to act inconsistentl# with its o ligations under international law with res5ect to the state or di5lomatic immunit# of a 5erson or 5ro5ert# of a third state, unless the Court can first o tain the coo5eration of that third 5art# for the wai%er of the immunit#. The Court cannot reMuest for assistance which would reMuire it to act inconsistentl# with its o ligations under international law with res5ect to state or di5lomatic immunit# of a 5erson or 5ro5ert# of a third State. Since the Court has not o tained the coo5eration of <r.2ucanIa, it could not reMuest for surrender or assistance if this will reMuest to reach its o ligations under international law with res5ect to di5lomatic immunit#.

(a) Arrest 4arrant of ( A5ril ./// (Democratic Republic of the Con o %! "el ium), 0udgment, $.C.0. Re5orts .//., Para.6( ( $mmunities or s5ecial 5rocedural which ma# attach to the official ca5acit# of a 5erson, whether under national or ) international law, shall not ar rules the Court from eGercising its ;urisdiction o%er such a 5erson. (c)

E. Th& #"",*&- )* $%t /,).t4 %0 0%..%7)$/ "()2&*: #> Th& #"",*&- )* $%t /,).t4 %0 "()2& %0 G&$%")-& ,$-&( A(t)".& < =#> %0 th& R%2& St#t,&. "ead of -aKolia state has not 5ursued a 5olic# of genocide under Art. = (a) of the Rome Statue.
The &enocide Con%ention of (')* and the corres5onding customar# international rules reMuire a num er of s5ecific o ;ecti%e and su ;ecti%e elements for indi%idual criminal res5onsi ilit# for genocide to arise. There are elements that show the lacI of genocidal intent. The 5rosecution

failed to show @ dolus s5ecialisE or @dolus aggra%eE which is an essential element to 5ro%e the @s5ecific intentE in the offence of genocide. The# were onl# against those 5eo5le who etra# the cause of their great nation. The# were onl# against the 5eo5le who etra# the cause of the nation not whole <asauri 5eo5le. The incident at the 5residentLs official residence was done in 5ursuance of self defense as 5ro%ided under Art. 7((C) of the Rome statute and the masauri tri e had s5ecificall# gathered there with 5re meditation to Iill his famil# and urn his residence. This case clearl# shows that the intent of the attacIers was not to destro# an# grou5 as such, or 5art of the grou5. $nstead, the intention was to murder all those men the# considered as re els, as well as 5re%ent re els from hiding among, or getting su55ort from, the local 5o5ulation. $n the case of genocide a 5erson intending to murder a set of 5ersons elonging to a 5rotected grou5, with the s5ecific intent of destro#ing the grou5 (in whole or in 5art), ma# e moti%ated, for eGam5le, !rom the %iew5oint of criminal law, what matters is not the moti%e, ut rather whether or not there eGists the reMuisite s5ecial intent to destro# a grou5. 3> Th& #"",*&- )* $%t /,).t4 %0 "()2& #/#)$*t H,2#$)t4 ,$-&( A(t)".& 7=1> =/> &$.)*t&- )$ th& R%2& St#t,&. To esta lish a crime against humanit# which would ring the defendant under ;urisdiction of the $CC, we must a55l# the threshold test of Article +
76

and determine whether the acts in Muestion

were committed as 5art of a wides5read or s#stematic attacI directed against a ci%ilian 5o5ulation, with Inowledge of the attacI. !irstl#, there is nowhere mentioned in the facts that <r. lucanIa had Inowledge of the attacI conducted # his arm# or other 5erson since he ne%er ordered to conduct
76

!or the 5ur5ose of this statue, @crime against humanit#E means an# of the following acts when committed as a wides5read or s#stematic attacI directed against an# ci%ilian 5o5ulation with the Inowledge of the attacI.

such an# act. <oreo%er, a wides5read attacI is @understood as reMuiring large-scale action in%ol%ing a su stantial num er of %ictimsE while the term s#stematic was @understood as reMuiring a high degree of orchestration and methodical 5lanning.E $n this case, neither of these reMuirements is met. .E There eGists no e%idence in the record which would indicate that the soldiers were aware of such a s#stematic attacI, e%en if one eGisted. The second 5art of the threshold test, direction against a ci%ilian 5o5ulation also fails to designate these actions as crimes under Article +. There was no cons5irac# hatched # the national census de5artment to Iill the residence of ;aKulu. "e was use the data of census de5artment for the 5ur5ose of de%elo5ment of the nation and there was no e%idence which 5ro%e that census data used for Iilling of ;aKulu residence. The Defendant did not 5ossess the reMuisite mens rea necessar# to designate their actions as crimes under Article + (() (g).
7=

4ithout the reMuisite Inowledge, the

defendant cannot e rought efore the $CC under charges of crimes against humanit#. "> Th& #"",*&- )* $%t /,).t4 %0 7#( C()2&* ,$-&( A(t)".& ?=2> =3> ='v)))> &$.)*t&- )$ th& R%2& St#t,&. <r. lucanIaLs go%t. would not e held lia le under Article * (.) ( ) (G%iii)
7+

as there was no

intention to massacre the 5eo5le of masauri tri e the whole incident of as5h#Giation was a industrial accident which occurred due to una%oida le circumsatances although the aforesaid sector was under the control of the go%ernment the effect of this incident was wides5read and was not a result of a s#stematic acti%it# of the go%ernment due to with mem ers of communit# suffered eMuall#. oth the

$. Ra5e, seGual sla%er#, enforced 5rostitution, forced 5regnanc#, enforced steriliKation, or an# other form of seGual %iolence of com5ara le gra%it#. 0. em5lo#ing as5h#Giation, 5oisonous or other gases, and all analogous liMuids, materials or de%ice. D.

PRAYER 4herefore, in the light of the Muestions 5resented, arguments ad%anced and authorities cited, counsel on the ehalf of the Defendant reMuests this "on le Court to find, ad;udge and declare that> A.The Court cannot eGercise its ;urisdiction o%er the case. A.The case is not admissi le efore the $CC. C. The Cham er should decline to confirm the charge. The case should e dismissed on 5reliminar# asis (Art. 67 (.). (c)). D. The arrest and su seMuent transfer of <r. 2ucanIa is illegal. The Accused should e immediatel# and unconditionall# released. Pass an# order, which the Court ma# deem fit in light of ;ustice eMuit# and good conscience. $n res5ectful su mission efore the $nternational Criminal Court.

Counsel of the Defendant