IT_09_V

Original: English

No.:ICC-09/03-21/10

TRIAL CHAMBER

Before: Judge _________________________, the Presiding Judge

Judge_________________________, and

Judge _________________________,

SITUATION IN XUAN

IN THE CASE OF

THE PROSECUTOR v. JORDAN SCHLANKY

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Table of Contents

S.No Index Page No.

1. Index of Authorities 2

2. List of Abbreviations 3

3. Statement of Jurisdiction 4

4. Statement of Facts 5

5. Summary of Pleading 7

6. Issues Advanced 9

7. Pleadings in Detail 10

8. Prayer 19

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Index of Authorities:-

I. STATUTE :
1. Rome Statute of ICC
2. Elements of Crime of ICC
3. Rules of Procedure and Evidence of ICC

II. BOOKS
1. 6th Edition of Malcolm N. Shaw International Law
2. The Fundamental Concept of Crime in International Criminal Law: A Comparative Law
Analysis - Iryna Marchuk
3. Immunity and International Criminal Law - Yitiha Simbeye

4. International Criminal Law - William A. Sachabas

III. CASES:
1. The Prosecutor vs Jean-Pierre Bemba Gombo
2. Prosecutor v Dragan Nikolic
3. Ker v. Illinois
4. Frisbie v. Collins
5. United States v. Alvarez-Machain

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LIST OF ABBREVIATIONS

1. Acc. = Accordance
2. UNSC = United Nations Security Council
3. EU = European Union
4. PTA = Pro-Xuan Traders Association
5. UF = United Front
6. ICC = International Criminal Court
7. SCD = Special Committee on the study of Demographics
8. TAP = Trident Action Plan
9. LR = Labour Republic
10. ICCPR = International Covenant on Civil and Political Rights
11. UDHR = Universal Declaration of Human Rights
12. MCMD = Male Captus Male Detentus
13. MCBD = Male Captus Bene Detentus
14. ICTR = International Criminal Tribunal for Rwanda
15. ICTY = The International Criminal Tribunal for the former Yugoslavia
16. UN = United Nations

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STATEMENT OF JURISDICTION

The Prosecutor has approached the Honorable International Criminal Court under Article 5 read
with Article 13 (a) in acc. With Article 14 of the Rome Statute.

Article 5 Crimes within the jurisdiction of the Court

The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this Statute
with respect to the following crimes:
(a) The crime of genocide
(b) Crime against humanity
(c) War crimes
(d) The crime of aggression

Article 13 Exercise of jurisdiction

The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance
with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred
to the Prosecutor by a State Party in accordance with article 14

Article 14: Referral of a situation by a State Party

1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the
jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate
the situation for the purpose of determining whether one or more specific persons should be
charged with the commission of such crimes.
2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by
such supporting documentation as is available to the State referring the situation.

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STATEMENT OF FACTS

1) Xuan, a Southeast Asian country consisting of 2000 islands and having a diverse population
has been known for abundant natural resources. The country is basically divided into two types
of people: Philos (the original inhabitant) and Sophists (nomadic traders from Europe). Philos
community had a motive to arrive and settle at the banks of Xuan whereas Sophist Community
wanted de-facto control of Xuan’s trade routes with the world.
2) Labour Republic, a neighboring country which is a permanent member of United Nations
Security Council (UNSC) has signed and ratified The Rome Statute, The International
Covenant on Civil and Political Rights, The Genocide Convention and the Geneva
Convention(s). Both the countries also share Extradition Treaty which enables Philos of Xuan
to have a strong bond with the country and other benefits. Assistance from such a global power
allowed Philos to dominate over all political landscapes of Xuan for 33 years (1975-2008).
3) 1995, Civil War broke out which tore apart the country’s institutions. European Union
(EU) wanted to develop multilayer treaty regime with Xuan for which it had proposed to
integrate the trade routes with the international highway. The ruling party (The United Front)
finding it a great opportunity to show the interest in the world trade, sanctioned the proposal.
Recognizing this collaboration as a threat by the Sophists, they created a Pro-Xuan Traders
Association (PTA). The contentions were that the interests of the domestic traders were not
paid interest and unrestricted access was given to the Western companies into marine
resources.
4) The civil War resulted in deadlock with PTA consolidating powers and entering into
politics to prevent any further trade negotiations. PTA had a stronghold over Xuan coastal
regions and it restricted any foreign trader to trade. PTA having great support from the coastal
communities used to sell every tradable organic commodity to the other countries which
fulfilled the demand of affluent classes. Western businessmen in order to exploit these
communities sent sea exploration to Xuan, PTA feeling threatened attacked them in Xuanian
Waters.
32 ships were ransacked over the tenure of 10 years, later the ships were dismantled and sold.
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Xuanian Government couldn’t use the state machinery against the leaders of PTA and asking
foreign intervention will land up showing them as “weak & incompetent”. Political efforts to
draw the attention of ICC towards Xuan’s condition had failed because of absence of Piracy
as crime in Rome Statute. The nuanced practices practiced by the Philos community was the
reason behind their socio-economic backwardness.
5) Jordon Schlanky, a Sophist widely recognized for his study on culture and heritage secured
a nomination to the Special Committee on the study of Demographics (SCD) in Xuan to assist
Xuanian legislators in policy framing. Elections took place on May, 2008 between UF and
PTA. PTA won the election by unfair means and tangled economically which would affect the
future of Xuanian people. Carles Puyol, a radical Sophist and opponent of UF also emerged as
an indomitable power and he believed in the views of PTA’s claim over Xuan. Carles Puyol
campaigns led to the victory of PTA in 2008 and he was declared as Premier of the country.
Carles used to file ample number of lawsuits and criminal prosecutions against UF and Philos
community.
6) 2010, Xuan witnessed a flagship policy in which the SCD chairman Jordan Schlanky
recommend a 3 step plan Trident Action Plan (TAP) to get rid of the unwanted vices. First
Phase (Dec,2010) brought changes in laws which let to huge number of litigations aimed at
limiting the civil liberties of Xuanian citizens, such as annulling the marriage of people
belonging to different races and further declared it criminal offence. Second Phase (May, 2011)
aimed at research studies to, measure the criminal activities in the state ranging from 1995 –
2011. Third Phase (Sept,2012), the executive of Xuan aimed at enforcing sterilization across
the country means of single legislation called Xuan Population Control Implementation. Act
dealt with voluntary as well as involuntary sterilization, active euthanasia and it popularly
came to be known as “silent genocide”.
7) The philosophy of utilitarianism led Carles Puyol to start with sterilization campaign across
the country. The effect of the campaign isolated the people suffering from genetic disease and
kept them in specially designed laboratories which led to social segregation.

Philos were considered as “minority problem” by the popular media channels because of the

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image depicted by Jordan’s agencies claimed them to be historically weak, lethargic, and
disease-laden and therefore a burden for the state.
8) There was a huge downfall in the Xuan population by June, 2015 which was seen as an
alarming situation by Labour Republic. LR sent an official communication dated Dec, 2015 to
the office of the Prosecutor of the International Criminal Court (ICC) requesting it to
investigate into the situation. ICC Prosecutor on 8th Mar 17, followed the procedure given in
Rome Statute and was able to expedite the preliminary investigation with the assistance of LR.
Based on the materials gathered during the investigation, the ICC Prosecutor moved before
Pre-Trial Chamber 1 of ICC to take permission for a formal investigation. ICC granted order
dated 15th Feb 2018 to investigate the role of various persons which led to the alarming
situation in Xuan. Xuanian Government had become extremely volatile and had declined the
investigation initiated by ICC which depicted Jordon and Carles as “unworthy victims of a
political conspiracy”. While being interviewed Carles had told that if the investigation request
is not terminated, he may pull out of the Rome Statute. Carles also demanded immunity by the
United Nations, failure of which may lead to military attacks on Philos population.
9) Looking at the sensitivity of the situation in Xuan, United Nations offered Carles an
amnesty deal dated 21st July 2018 which says that immunity will be given to Carles provided
he relinquishes his position with immediate effect and ceases all the connections and control
over Xuanian government. ICC Prosecutor started with the investigation on Jordon’s role as
on accused in the crime and after the investigation ICC Prosecutor submitted its final report
before the Pre-Trial Chamber expressing its inability to establish any connection with the
accused or to convince him to appear in the Court. The Pre-Trial Chamber on 21st Oct 2018 in
accordance with the procedures and conditions under Article-61 of the Rome Statute confirmed
the charges of crime of genocide under Article-6 of Rome Statute.

10) ICC prosecutor filed an application in Trial Chamber for issuing an arrest warrant against
Jordon at the end of Oct, 2018. The Trial Chamber issued an arrest warrant under Article 64,
61 and 58 of the accused dated 5th Nov 2018 and also extended a request for arrest and
surrender to LR forcing it to assist The Court in gaining the custody of the accused in strict
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obedience under Article-6 of Rome Statute. The LR succeeded in gaining the custody of the
accused by a luring operation called “Operation Dexter”. The operation tricked him down on
pretext of amnesty deal and on his arrival was immediately apprehended and transported to
Hague under the procedure given in Article-59.

11) Accused in front of ICC with the help of his legal representatives argued that the lurking
operation was conducted in violation of his human rights and also in violation of the Rome
Statute. The Trial Chamber issued notice and asked for responses from ICC Prosecutor and LR
for the allegations made by accused. The legal Representatives of LR were also presenting the
interests of Philos Community because of the absence of Legal Representatives of the victims.
The Trial Chamber allowed the LR to act as a Legal Representatives of the victims through
order dated 21st Dec 2018 and to participate in the trial of the accused.

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ISSUES ADVANCED

ISSUE I

1. The requirement for the reparations and help by the trust fund for the victims to be
requested by the International Criminal Court.

ISSUE II

1. Whether “Operation Dexter” is justified?

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SUMMARY OF ARGUMENTS

1. The first argument contended on behalf of the victim is the request from the International
Criminal Court for requirements for the reparations and help by the trust fund for the
victims. There have been certain guidelines laid down for seeking reparations by the Court,
as in this case, the Philo Community. The community has been subjected to various
atrocities, which has taken place under the ambit of Trident Action Plan. The council makes
a strong case for seeking reparations and help by the trust fund for the victims.
2. The second argument contested by the victim’s council is that the Operation Dexter, which
was carried out to arrest the accused, was justified under the domestic laws of Labor
Republic as the country itself has the sole authority of jurisdiction in relation of carrying
out the orders of the Trial Chamber.

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Issue I

While Article 75 of the Statute1 sets out the legal basis for reparations and the modalities are

elaborated in Rule 94 of the Rules2, the reparations procedure at the ICC is not entirely clear. The

case-by-case approach to determine the reparations has resulted in inconsistent jurisprudence,

divergence in practice and lack of clarity for victims even within the same situation before the

Court.

The jurisprudence of the Court has confirmed that in order to be considered for reparations, a

victim has to meet the following conditions, namely:

(i) He or she must be a natural person or legal entity

(ii) He or she must have suffered harm.

(iii) The alleged crime of which he or she is a victim must be within the jurisdiction of the Court;

(iv) There must be a causal link between the harm and a crime for which the accused was convicted.

Philos, have been known for their contributions in the field of art and development of Xuan. They

have been granted special rights by the Constitution of Xuan. Philo community has been suffering

various atrocities by the acts of the accused. The accused, in need to eradicate the Philos from the

country has committed several heinous acts in the name of Trident Action Plan which has

eventually led to crime of genocide under Article 6 of Rome Statute.

1
Rome Statute, A/CONF.183/9 of 17 July 1998
2
Rules of Evidence and Procedure, ICC-ASP/1/3 and Corr.1, part II.A
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Implementation of plans such as TAP and then widening its ambit under the powers delegated to

the accused from the Premier’s office comprises of the several offences committed against the

community. Issues faced by the Philo community were termed as “minority problems” in the

popular news channels and were seen as “undeserving”. The community has been defamed time

and again, termed as historically weak, lethargic, inefficient, and disease-laden and hence has been

declared a burden on the state-exchequer.3

Schemes under phase 3 of the trident action plan such as forced pregnancies, forced abortions,

birth control and the Xuan Population Control Implementation Act were implemented with sole

motive to destroy the Philo community in whole. The critics argued that the structure of the law

was a decoy for committing what popularly came to be known as “the silent genocide” of the

obvious victims of law - the Philo community4. Results of the Trident Action Plan was such that

by June 2015, the population of the Philos dwindled to a considerable extent5. As per VW-36, most

of the men and women working in the governmental departments were taken for the forced

operations on the pretext of medical screening. Although the clerks were aware that it was a trick

intended to end their own lineage, retaliation would have cost them their jobs and lives.

3
See Compromis , para 25
4
Ibid.
5
See Compromis , para 26
6
See Compromis (Victim’s Witness Testimonials)
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All those who used to disclose about their disease or were above 50 were barred from the medical

screening and similar news were received by Philo ghettos and nearby villages.

These results are more than enough to cause bodily & mental harm.

These acts have deteriorated the image of Philo community. Philos were manipulated 24/7 -

through health care centre , media channel and public meetings into submitting themselves to

procedures which would ensure their well-being in future. Philos were looked down upon and

number of race motivated crimes against them were on rise. They were dealing with degrading

inhuman treatment which resulted in deep impact on mental health of members of the community7.

The offence committed by the accused comes under the jurisdiction of the court under Article 5 of

the Rome Statute. The council wants that the collective reparations should be provided for relief

to the entire community as it will help the members to rebuild their lives, such as the building of

victim services center or the taking of symbolic measures. All matters relating to reparations, the

Chamber must take into account the needs of all victims, and the measures implemented must

ensure their safety, physical and psychological well‑being and privacy.

As the judgement of Bemba8 says, most victims completed a “joint” application form at the outset

of proceedings requesting reparations, in the same way Philos are intending to complete a joint

application for the demand of reparations to be fulfilled.

The Chamber must treat victims with humanity and must respect their dignity and human rights.

7
See Compromis (para 26)
8
The Prosecutor vs Jean-Pierre Bemba Gombo, 01/05-01/08 A, ICC, 2018
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It is crucial that reparations be granted "without adverse distinction on the grounds of gender, age

race, color, language, religion or belief, political or other opinion, sexual orientation, national,

ethnic or social origin, wealth, birth or other status."9.

The Trust Fund’s reparations mandate involves the implementation of awards for reparations

ordered by the Court against a convicted person. It is the convicted person who is responsible for

the cost of implementing reparations awards.

Therefore the council submits that there is a need for the reparations and assistance by the trust

fund for the victims shall be ordered by the Court.

9
Icc-cpi.int. (2019). Katanga case: ICC Trial Chamber II awards victims individual and collective
reparations. [online] Available at: https://www.icc-cpi.int/Pages/item.aspx?name=pr1288 [Accessed 14
Mar. 2019].
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Issue II

Generally the accepted rule of international law, under the rule enshrined in Article 59 and Part IX

of the Rome Statute makes an obligation on the state parties on selecting the most viable option

for conducting arrest of an accused by state. Generally the most viable option would be in

accordance with the extradition treaty existing between two countries.

In the instant case, being mindful of the political outreach of the accused in Xuan extradition would

have been a failed attempt. Extradition requires execution by the government of both the countries

would have been unable to extradite the accused who was the member of government in power in

Xuan founded by Pro Xuan traders association (PTA)10.

Moreover the Government, since 2006, have been restrained from using the state machinery

against the leaders of PTA due to lack of evidence as well as political influence exercised by the

association around the course11. In 2008, when the PTA came to power in Xuan, their political

influence multiplied by several folds and therefore it would have been very difficult to extradite

the accused. Also, according to the testimony of VW-312 who was the chief of CBI of Labour

Republic when the arrest of the accused was carried out, the domestic laws of Labour Republic

incorporated the Ker-Frisbie doctrine into their law and harmonizing it with international law.

According to VW313 - A team of experts were created, who after acting on the intelligence gathered

10
See Compromis (para 13).
11
See Compromis (para 8)
12
See Compromis , victim witness testimonials , witness 3
13
See compromis , page 29
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suggested the most viable option to secure the attendance of the accused. Also, the Extradition

treaty would have failed to yield any result14. Additionally, based on the intelligence reports, a

public attempt to arrest the accused would have led to more violence against the Philos in Xuan

and the accused would have used the same threats as used by Carles Puyol. Therefore, Operation

Dexter could be seen the most viable option to secure the attendance of the accused.

Ker-Frisbie doctrine, as laid down in Ker v. Illinois15 , Frisbie v. Collins16 and United States v.

Alvarez-Machain17 by the US supreme court and a accepted principle under international criminal

law lays down a rule which empowers the state parties to make a arrest outside the ambit of forcible

abduction18, due process of law19 and abductions against extradition treaties present20if the offence

is of a grave nature.

Thus the international principle of Male Captus Bene Detentus has been incorporated in the laws

of Labour Republic. According to this doctrine, the illegality of arrest does not affect the legality

of the trial against the accused. Further this doctrine has been enforced by international courts and

tribunals.

14
See Compromis, page 29, para 3, See- This is because the said treaty is like most modern extradition treaties
which contains heavily guarded political offence exception clause
15
Ker v. Illinois, 119-US-436(1886)
16
Frisbie v. Collins, 342-US-519(1952)
17
United States v. Alvarez-Machain,504 U.S. 655
18
Supra, note 3
19
Supra, note 4
20
Supra, note 5
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The Appeal Chamber does not consider that in the case of universally condemned offences,

jurisdiction should be set aside on the ground that there was a violation of the sovereignty of a

State, when the violation is brought about by the apprehension of a fugitive from international

justice, whatever the consequences for the international responsibility of the State or organization

involved. This is all the more, in cases such as this one, in which the State, whose sovereignty has

allegedly been breached, has not lodged any complaint and thus, has acquiesced in the International

Tribunal’s exercise of jurisdiction.21

Therefore, in the light of contention raised above, the Prosecutor humbly submits that the

arrest procedure under the name of Operation Dexter followed by the Labour Republic is

in consonance with the procedure of international criminal law and therefore, the procedure

adopted and the arrest made under Operation Dexter is justified and shall not be set aside.

21
Prosecutor v Dragan Nikolic , IT-94-2-AR73, ICTY, (2003)
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PRAYERS

In the light of the issues raised, arguments advanced and authorities cited, the council for the victim

prays from this honorable Court:

I) THE COURT MUST GRANT REQUIREMENT FOR THE REPARATIONS AND HELP BY

THE TRUST FUND FOR THE VICTIMS.

II) THAT THE ARREST OF ACCUSED BY LABOUR REPUBLIC UNDER OPERATION

DEXTER IS JUSTIFIED.

The court shall grant any other which the court may deem fit to be in the Interest of Justice.

All of which is humbly prayed,

Counsel for the Victim

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