NUREMBERG MOOT COURT 2020

Team: N097

Prosecution

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 TABLE OF CONTENTS
I. THE COURT HAS JURISDICTION ............................................................................................ 3

I.B THE CONDITIONS OF RATIONE LOCI ARE MET ................................................................................ 3

I.B.1 Territorial jurisdiction for the crime of deportation is established because part of the crime
occurred on the territory of a State party ........................................................................................... 3
I.B.2 Territorial Jurisdiction for the crime of murder is established because the alleged murders
occurred on the territory of a State party ........................................................................................... 3
I.C THE CONDITIONS OF RATIONE MATERIAE ARE MET ....................................................................... 4
I.C.1 The Contextual Elements of Article 7(1) of the Statute are Established .................................. 4
I.C.2 The specific elements of the crimes of humanity of murder and deportation are established .. 5

II. THE CASE AGAINST MS. CALANTA IS ADMISSIBLE ........................................................ 6

II.A. PURSUANT TO ARTICLE 17(1)(A), COMPLEMENTARITY IS ENGAGED ............................................ 6

II.A.1 Inaction on the part of Cintria renders the case against Ms. Calanta admissible ................... 7
II.A.2 Even if investigations have been carried out, pursuant to Article 17(2) Cintria was unwilling
to carry them out genuinely ............................................................................................................... 7
II.B. THE GRAVITY THRESHOLD FOR ADMISSIBILITY HAS BEEN MET................................................... 7
II.B.1 The case is of sufficient gravity as the crimes were committed with particular cruelty and
resulted in the violation of fundamental human rights ...................................................................... 7

III. MS. CALANTA IS CRIMINALLY RESPONSIBLE .................................................................. 8

III.A. THE CONTEXTUAL ELEMENT OF BOTH CRIMES IS FULFILLED ..................................................... 8

III.B. PURSUANT TO ARTICLE 25(3)(B), THE REQUIREMENTS OF LIABILITY FOR MURDER ARE
FULFILLED .............................................................................................................................................. 9
III.B.1 The conduct aspect (ordering) of the objective element is satisfied ...................................... 9
III.B.2. The subjective element for murder is satisfied ................................................................... 10
III.B.3. Alternatively, there is liability under Article 28(b)............................................................. 11
III.C. PURSUANT TO ARTICLE 25(3)(A), THE REQUIREMENTS FOR LIABILITY FOR DEPORTATION ARE
FULFILLED ............................................................................................................................................ 11
III.C.1. The deportations in question satisfy the requirements of the Statute ................................. 11
III.C.2. The objective element of indirect co-perpetration is fulfilled............................................. 12
III.C.3. The subjective element of indirect co-perpetration is satisfied.......................................... 13

IV. PRAYER FOR RELIEF ............................................................................................................... 14

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 I. THE COURT HAS JURISDICTION
I.A THE CONDITIONS OF RATIONE TEMPORIS ARE MET
1. The Republic of Verden has been a State party to the Rome Statute since 2004.1 Alleged crimes
have partially been committed on the territory of Verden since at least 2018.2 According to Article
11 of the Statute,3 the Court may assert jurisdiction ratione temporis over those crimes.
I.B THE CONDITIONS OF RATIONE LOCI ARE MET
2. In order to establish jurisdiction ratione loci, the court can either establish territorial or personal
jurisdiction.4 Ms. Calanta not being a national of a State party, the question is whether the Court
may exercise territorial jurisdiction over crimes that occurred partially on the territory of a state
party (Verden), and partially on the territory of a non-state party (Cintria). It is submitted that for
both the crimes of deportation and murder, territorial jurisdiction is established.
I.B.1 Territorial jurisdiction for the crime of deportation is established because part of the
alleged crime occurred on the territory of a State party
3. For the purposes of Article 12(2)(a), the Bangladesh/Myanmar deliberation confirmed that the
use of the word ‘conduct’ captured the actus reus of a crime.5 It was decided that the notion of
actus reus “encompassed within its scope the consequences of [the criminal] conduct”.6 The
crime of deportation requires that the ‘perpetrator deport [...] by expulsion or other coercive acts’.
In the present case, deportation took place both by expulsion, with physical removal of lawfully
present Spelligians from Cintrian territory by Cintrian authorities, as well as by coercive acts,
through the political measures taken by Ms. Calanta.7 The immediate consequence of these
measures was to remove more than 3,000 Spelligians to the territory of Verden. Accordingly, part
of the actus reus of the crime of deportation occurred on the territory of a State party, Verden.
The necessary territorial link can be found in the present case to establish territorial jurisdiction
for the crime of deportation.
I.B.2 Territorial jurisdiction for the crime of murder is established because the alleged
murders occurred on the territory of a State party

1 Henceforth “the Statute”.

2 Case Facts, paras. 16, 17, 18.
3 Rome Statute, Art. 11.
4 In case of a Security Council referral, the preconditions of article 12(a) and (b) of the Statute do not apply.
5 ICC, Bangladesh/Myanmar, ICC-01/19-27, Decision pursuant to Article 15 of the Rome Statute on the authorisation of an
investigation into the situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, PTC III, 14
November 2019, para. 49.
6 Ibid., para. 50.
7 Case Facts, para. 14.

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 4. The alleged murders of 12 Islanders did not occur on Cintrian territory, it therefore must have
happened on Verdenian territory.8 As such, territorial jurisdiction can equally be established for
the crime of murder under Article 12(2)(a) of the Rome Statute.9
I.C THE CONDITIONS OF RATIONE MATERIAE ARE MET
5. It is submitted that in the present case, pursuant to Article 12(1) of the Statute,10 there are
‘reasonable grounds’11 to believe that both the contextual and specific elements of crimes against
humanity of deportation and murder are established.12
I.C.1 The Contextual Elements of Article 7(1) of the Statute are Established
6. Under the chapeau of Article 7(1) of the Statute, any of the underlying acts listed constitute a
crime against humanity if committed as part of a “widespread or systematic attack directed
against any civilian population, with knowledge of the attack”.13 Article 7(2) indicates that such
an attack must be committed “in furtherance of a State or organisational policy”.14
Directed against any civilian population
7. To satisfy Article 7(1) of the Statute the attack must be “directed against any civilian population”.
The civilian victims of these crimes must be targeted for their nationality, ethnicity or other
distinguishing features.15 The confidential memo from the Cintrian Minister of Immigration
explains that the new deportation policies were aimed only at Islanders, and that no exceptions
should be granted.16 Hence, Islanders form the target of deportation, violence and murder such
that they are not simply a “limited and randomly selected” 17 group of people.18
State or organisational policy
8. Events which indicate that alleged attacks were committed “pursuant to or in furtherance of a
State of organisational policy”19 include: (i) general content of political program, (ii) media
propaganda, (iii) mobilisation of armed forces, and (iv) the scale of the acts of violence

8 Case Facts, para. 17.

9 Rome Statute, Art. 12(2)(a).
10 Rome Statute, Art. 12(1).
11 ICC, Situation in the Republic of Cote D’Ivoire, ICC-02/11, Corrigendum to “Decision Pursuant to Art. 15 of the Rome
Statute on the Authorization of an Investigation into the Situation in the Republic of Cote d’Ivoire”, 15. November 2011,
para. 26.
12 Rome Statute, Art. 7.
13 Rome Statute, Art. 7(1).
14 Rome Statute, Art. 7(2).
15 ICC, Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Decision pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the charges of the Prosecutor against Jean-Pierre Bemba Gombo, PTC II, 15. June 2009, para. 76.
16 Case Facts, para. 15.
17 ICTY, Prosecutor v. Jovica Stanišić and Franko Simatović, IT-03-69-T, Judgement, 30 May 2013, para. 964.
18 Case Facts, paras. 14-17.
19 Rome Statute, Art. 7(2).

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 perpetrated.20 Each of these elements are satisfied in the present case. Ms. Calanta’s political
program, as relayed by her media outing on 18 August 2018, blames the arrival of Spelligians for
“poor economic performance, high crime rates and dissatisfied Cintrians”.21 Additionally, police
were mobilised to deport more than 3,000 Spelligians from Cintria to the Republic of Verden,22
during which 14 were allegedly killed. 23
Widespread and Systematic nature of the attack
9. For an attack to be deemed widespread it should be “massive, frequent, carried out collectively
with considerable seriousness and directed against a multiplicity of victims”.24 Here, the alleged
attacks were wide ranging: stripping of residence permits, deportations, physical violence and
murder. In particular, it is reported that since the Immigration Act 2018 entered into force, 799
Spelligians were stripped of permanent resident status without any due process, and more than
3,000 were deported to the Republic of Verden. The attack is therefore widespread.
10. Systematic refers to the organised nature of the acts of violence.25 A systematic attack requires
(i) a political objective or plan, (ii) large-scale or continuous commission of crimes which are
linked, (iii) use of significant public or private resources, and (iv) the implication of high level
political and/or military authorities.26 Each of these is satisfied in the present case. Ms. Calanta’s
statements in the media, coupled with the confidential memo and the Immigration Act, 27 prove
that the removal of Spelligians from Cintria was a defined political objective. As previously
detailed, the commission of crimes was of a large-scale, and the implication of ministerial
directives, as well as the employment of police resources, satisfy the third and fourth criteria of
this test. This attack was consequently both widespread and systematic.
I.C.2 The specific elements of the crimes of humanity of murder and deportation are
established
Crime against Humanity of Deportation
11. Article 7(2)(d) defines deportation or forced transfer of population as meaning “forced
displacement of the persons concerned by expulsion or other coercive acts from the area in which

20 ICTY, Prosecutor v. Blaskic, IT-95-14-T, Judgement, 3 March 2000, para. 204.

21 Case Facts, paras. 8, 15.
22 Case Facts, para. 16.
23 Case Facts, para. 17.
24 ICTY, Prosecutor v. Kordic and Cerkez, IT-95-14/2-A, Appeal Judgement, 17 December 2004, para. 94.
25 ICC, Prosecutor v. Katanga et al., ICC-01/04-01/07, Decision on the confirmation of charges, PTC I, 30 September 2008,
para. 394.
26 ICTY, Prosecutor v. Blaskic, IT-95-14-T, Judgement, 3 March 2000, para. 203.
27 Case Facts, paras. 8, 15.

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 they are lawfully present, without grounds permitted under international law”.28 Reports note that
more than 3,000 Islanders were deported from Cintria using police resources. Of those, 697 were
stripped of their resident status, and many islanders were coerced into signing “voluntary
departure” forms.29 Displacement may be permitted under International Humanitarian Law in
narrow circumstances, where the security of the population or imperative military reasons so
require.30 No such exceptional circumstance can be made out in this case. In fact, the motivation
behind deportation was explicitly linked to perceived economic burden and frustration from
Spelligians, as recognized by Ms. Calanta herself.31 Importantly, a large part of Spelligians
deported were lawfully present in Cintria.32 Hence, the specific element of the crime of
deportation is satisfied in the present case.
Crime against Humanity of Murder
12. The crime against humanity of murder requires that the “perpetrator killed one or more
persons”.33 It has been reported that 12 Islanders were killed in Cintrian custody. An additional
two Islanders were shot by Cintrian police for resisting expulsion; these deaths were not subject
to any investigation. The alleged murders were committed by Cintrian authorities acting under
the direction of Ms. Calanta and her government as part of a widespread and systematic attack.34
13. For the above reasons, ratione temporis, ratione loci as well as both the contextual and specific
elements of ratione materiae are established in the present case. It is therefore submitted that for
the purposes of Article 19(1) of the Statute,35 this case falls within the jurisdiction of the Court.

II. THE CASE AGAINST MS. CALANTA IS ADMISSIBLE

II.A. PURSUANT TO ARTICLE 17(1)(A), COMPLEMENTARITY IS ENGAGED
14. Complementarity is a cornerstone principle that respects the State’s jurisdiction but necessitates
that the Court intervene “when States do not or cannot investigate”. 36 Intervention is necessary

28 Rome Statute, Art. 7(2).

29 Case Facts, para. 14.
30 ICC, Bangladesh/Myanmar, ICC-01/19-27, Decision pursuant to Article 15 of the Rome Statute on the authorisation of an
investigation into the situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, PTC III, 14
November 2019, para. 98.
31 Case Facts, para. 8.
32 Elements of Crimes, Art. 7(1)(d).
33 Elements of Crimes, Art. 7(l)(a) (1).
34 Case Facts, para. 15.
35 Rome Statute, Art. 19(1).
36 ICC, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (ICC-01/04-01/07-1497), Judgment on the Appeal of

Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25
September 2009, para. 85.

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 here as there is no ongoing investigation into Ms. Calanta by Cintria. Even if investigations have
been carried out, Cintria was unwilling to carry them out genuinely pursuant to Article 17 (1)(a).
II.A.1 Inaction on the part of Cintria renders the case against Ms. Calanta admissible
15. The initial question in determining admissibility is whether there are ongoing investigations or
prosecutions.37 “Inaction on the part of a State having jurisdiction renders a case admissible
before the court, subject to Article 17(1)(d) of the Statute”. 38 As a matter of fact, there is no
ongoing investigation into Ms. Calanta for the crimes against humanity of murder.39
II.A.2 Even if investigations have been carried out, pursuant to Article 17(2), Cintria was
unwilling to carry them out genuinely
16. Should the Court be compelled by the Defence’s submission that Cintria carried out an
“investigation” for the purposes of Article 17(1)(a), it is submitted that they were clearly not
willing to do so. Pursuant to Article 17(2), the State was unwilling to investigate in an
“independent or impartial manner” as Ms. Calanta unilaterally prevented further investigation.
Despite Ms. Calanta being the subject of the investigation, there is a clear lack of independence
and impartiality as she ultimately decided when the investigation had reached its conclusion.40
The circumstances are therefore such that it is inconsistent with a bona fide investigation; it is
inconsistent with the aim of bringing Ms. Calanta concerned to justice. 41
II.B. THE GRAVITY THRESHOLD FOR ADMISSIBILITY HAS BEEN MET
17. “It is not the number of victims that matter but rather the existence of some aggravating or
qualitative factors attached to the commission of crimes, which makes it grave.” 42 It is submitted
that the present case is of sufficient gravity as a number of qualitative factors are present.
II.B.1 The case is of sufficient gravity as the crimes were committed with particular cruelty
and resulted in the violation of fundamental human rights

37 ICC, Katanga et al. (ICC-01/04-01/07 OA 8), Judgment on the Appeal of Mr Germain Katanga against the Oral Decision
of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, para. 78.
38 Ibid.
39 Case Facts, para. 20.
40 Case Facts, para. 20
41 B. Bromhall, “The International Criminal Court: A Checklist for National Implementation” Nouvelles études pénales 13
(1999) 113 et sq, p. 145.
42 Pre-Trial Chamber II, Situation in the Republic of Kenya, ICC-01/09-19-Corr, Decision Pursuant to Article 15 of the Rome
Statute on the Authorization of an Investigation in the Situation in the Republic of Kenya, 31 March 2010, para. 62.

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 18. The alleged crime resulted in the violation of several fundamental human rights;43 including the
right to life,44 the right to liberty and security of person45 and the human right of all persons
deprived of their liberty to be treated with humanity and with respect for their inherent dignity.46
The victims were kept in terrible conditions, not given access to any means of communication,
lawyers or interpreters, and not taken before a judge for a hearing.47 The manner in which the
alleged crime was committed was done with “particular cruelty”; 48 two islanders were shot for
resisting forcible expulsion and left to die with no medical assistance. 49 The alleged acts were
committed “on the basis of discriminatory motives”; 50 a confidential memo from the Cintrian
Minister of Immigration explains that the new policies were aimed only at Islanders and that no
exceptions should be granted. 51 The memo further indicates, therefore, that the alleged attacks
were “committed as part of a widespread and systematic attack directed against a civilian
population on ethnic grounds”.52
19. For the above reasons, complementarity is engaged and the case is of sufficient gravity to justify
further action by the Court. It is therefore submitted that the case is admissible.

III. MS. CALANTA IS CRIMINALLY RESPONSIBLE

III.A. THE CONTEXTUAL ELEMENT OF BOTH CRIMES IS FULFILLED
20. For the reasons enunciated at I.C.1, the alleged crimes were objectively committed “as part of a
widespread or systematic attack directed against any civilian population” as per Art.7(1).
21. “Knowledge” of the widespread and systematic attack is also required and defined in Art.30(3)
as “awareness that a circumstance exists”. Given that Ms. Calanta expressly intended to “take
concrete and extensive measures to tackle illegal immigration” in order to combat the crime and
poor economic performance for which she blamed Spelligians in her speech of 28 August 2018,53

43 ICC, Prosecutor v Al Hasssan, ICC-01/12-01/18 OA, Judgement on the appeal of Mr Al Hassan against the decision of
Pre-Trial Chamber I entitled ‘Décision relative à l’exception d’irrecevabilité pour insuffisance de gravité de l’affaire soulevée
par la défense’, 19 February 2020, para. 122.
44 International Covenant on Civil and Political Rights (the ‘ICCPR’), Article 6.
45 ICCPR, Art. 9(1), (3) and (4).
46 ICCPR, Art. 10(1).
47 Case Facts, para. 14.
48 ICC, Situation in the Republic of Kenya, ICC-01/09-19-Corr, Decision Pursuant to Article 15 of the Rome Statute on the
Authorization of an Investigation in the Situation in the Republic of Kenya, 31 March 2010, para. 12.
49 Case Facts, para. 17.
50 ICC, Prosecutor v Al Hasssan, ICC-01/12-01/18 OA, Judgement on the appeal of Mr Al Hassan against the decision of
Pre-Trial Chamber I entitled ‘Décision relative à l’exception d’irrecevabilité pour insuffisance de gravité de l’affaire soulevée
par la défense’, 19 February 2020, para. 92.
51 Case Facts, para. 15.
52 ICTY, Prosecutor v. Théoneste Bagosora et al., ICTR-98-41, Judgement, 14 December 2011, p. 903.
53 Case Facts, para. 8.

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 Ms. Calanta would have been aware, considering the reports by Human Rights Eye,54 of the
widespread and systematic character of her acts.
III.B. PURSUANT TO ARTICLE 25(3)(B), THE REQUIREMENTS OF LIABILITY FOR
MURDER ARE FULFILLED
III.B.1 The conduct aspect (ordering) of the objective element is satisfied
22. Murder is a crime against humanity under Art.7(1)(a). The objective element requires that the
relevant conduct caused the consequence of death. In this case, the relevant conduct element is
prescribed by Art.25(3)(b), where a person “orders, solicits or induces the commission of such a
crime which in fact occurs or is attempted”. This requires: (1) position of authority; (2)
instruction; (3) direct effect, and; (4) requisite mental element.55
23. “Position of authority”56 does not require proof of effective or de facto authority57 – the minimum
requirement is that the person had the de jure authority to order.58 As President of Cintria, Ms.
Calanta is vested with the legal authority to issue orders, as demonstrated by her order to the
Immigration Minister to take “concrete and extensive measures to tackle illegal immigration”.59
24. “Instruction” requires that another person is ordered to “commit a crime which in fact occurs or
is attempted”.60 Here, the instruction takes the form of Ms. Calanta entrusting her Minister to take
measures to tackle immigration on 1 st September 2018.61 The literal interpretation of this
instruction is as an order to deport illegal immigrants. However, the Court is invited to interpret
the order in light of the complex contextual background. Firstly, in reality, Ms. Calanta intended
that the order apply not to all immigrants, but specifically to Islanders as she had identified them
as to blame for the ills she sought to remedy in her speech of 28 August 2018.62 Secondly, there
was a climate of hostility and discrimination towards Islanders 63 reinforced by the Government’s

54 Case Facts, para. 16.

55 ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1, Decision on the Prosecutor’s Application under Art. 58, PTC II, 13
July 2012, para. 63; Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-309, Decision Pursuant to Article 61(7)(a) and (b) of
the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, PTC II, 9 June 2014, para. 145.
56 ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1, Decision on the Prosecutor’s Application under Art. 58, PTC II, 13
July 2012, para. 64.
57 Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article
(2nd edn, 2008) p.1102 / para.124.
58 ICTY, Prosecutor v. Jadranko Prlić, IT-04-74-T, Judgment (TC), 29 May 2013, para. 231; Elies van Sliedregt, Individual
Criminal Responsibility in International Law (1st edn OUP, 2012), p. 108.
59 Case Facts, para. 10.
60 ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1, Decision on the Prosecutor’s Application under Art. 58, PTC II, 13
July 2012, para. 63; Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-309, Decision Pursuant to Article 61(7)(a) and (b) of
the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, PTC II, 9 June 2014, para. 145.
61 Case Facts, para. 10.
62 Case Facts, para. 8.
63 Case Facts, para. 9.

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 “anti-immigrant hate speech”64 and manifested in “violent clashes” with Cintrians.65 As a result,
the order was interpreted by the Minister, through his Immigration Act 66 and discriminatory
memo,67 as an opportunity to dispose of the Spelligians with a lower standard of care than would
normally be adopted. Consequently, there was a serious risk that deaths would occur. Overall
then, there was an instruction which, when reasonably interpreted, ordered the crime.
25. The “direct effect” requirement68 is that ‘but for’ the order, the crime would not have occurred.
In the absence of the orders and in light of the aforementioned “complex contextual background”,
the opportunity would not have arisen for the deaths to occur as no migrant would have been in
Cintrian custody in the first place and none would have been shot en-route to Verden.69
26. The mental element of ordering is knowledge, namely that “the person is at least aware that the
crime will be committed in the ordinary course of events as a consequence of the execution or
implementation of the order”.70 As at para. 24, the “ordinary course of events” must be viewed
in the context of the events as they actually were. Therefore, Ms. Calanta would have been aware
that if her instructions were so executed, they would give rise to a serious risk of deaths occurring.
III.B.2. The subjective element for murder is satisfied
The subjective element for the conduct is satisfied
27. In addition to the specific knowledge required for the conduct of “ordering”, Ms. Calanta must
have intended the conduct, namely issuing the order itself. Art.30(2)(a) requires dolus directus of
the first degree, i.e. that the “person means to engage in the conduct”. It is clear that Ms. Calanta
intended to issue an order of some kind, as she desired to take “extensive measures to tackle illegal
immigration”.71 Specifically, as Ms. Calanta singled out Spellige islanders in a speech 72, she
demonstrates her actual intention was to issue the order in respect of the Islanders.
The subjective element for the consequence is satisfied
28. It is submitted that dolus eventualis (recklessness) is encompassed within Art.30(2)(b). The
wording – “is aware that [the consequence] will occur in the ordinary course of events” – includes

64 Case Facts, para. 8-9.

65 Case Facts, para. 11.
66 Ibid.
67 Case Facts, para. 15.
68 ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1, Decision on the Prosecutor’s Application under Art. 58, PTC II, 13
July 2012, paras. 63, 66.
69 Case Facts, para. 17.
70 ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1, Decision on the Prosecutor’s Application under Art. 58, PTC II, 13
July 2012, para. 63; Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-309, Decision Pursuant to Article 61(7)(a) and (b) of
the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, PTC II, 9 June 2014, para. 145.
71 Case Facts, para. 10.
72 Case Facts, para. 8.

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 a situation in which the person is aware that there is a risk that the consequence may occur. “The
volitional element also encompasses other forms of the concept of dolus which have already been
resorted to by the jurisprudence of the ad hoc tribunals, that is… (ii) situations in which the
suspect (a) is aware of the risk that the objective elements of the crime may result from his or her
actions or omissions, and (b) accepts such an outcome by reconciling himself or herself with it or
consenting to it ”.73 This also has academic support.74
29. Dolus eventualis is applicable to the consequence of deaths. As enunciated at para. 24, in light
of the context of the lower standard of care which could be expected to be applied to the Islanders,
which Ms. Calanta was aware of, there was a risk that deaths would occur.
III.B.3. Alternatively, there is liability under Article 28(b)
30. Art.28(b) creates omissions liability where subordinates under the “effective responsibility and
control” of the defendant commit crimes which the defendant knew about. In this case, Ms.
Calanta was aware of the deaths caused by her immigration officers by virtue of the reports of
Human Rights Eye,75 and her acknowledgement of the prosecutions for them. 76
31. Ms. Calanta was then under a duty to “take all necessary and reasonable measures within [her]
power to repress their commission or to submit the matter to the competent authorities for
investigation and prosecution”. There is no evidence that Ms. Calanta took steps to soften the
policy or control abusive practices. Also, despite the three convictions for murder,77 the other
deaths were not properly investigated,78 showing that Ms. Calanta did not fulfil her duty.
III.C. PURSUANT TO ARTICLE 25(3)(A), THE REQUIREMENTS FOR LIABILITY FOR
DEPORTATION ARE FULFILLED
III.C.1. The deportations in question satisfy the requirements of the Statute
32. Deportation is defined as “forced displacement of the persons concerned by expulsion or other
coercive acts from the area in which they are lawfully present without grounds permitted under
international law”.79

73 ICC, Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the confirmation of charges, PTC I, 27 January 2007, para.
352.
74 Mohamed Elewa Badar, “Dolus Eventualis and the Rome Statute Without It?”, New Criminal Law Review, 12 (2009), p.
433-467.
75 Case Facts, para. 17.
76 Case Facts, para. 20.
77 Case Facts, para. 16.
78 Case Facts, paras. 16, 20.
79 Rome Statute, Art. 7(2)(d).

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 33. As regards the “lawfully present” requirement, the Islander asylum seekers were initially present
in Cintria lawfully because they were “refugees” under international law. The 1951 Convention
defines a refugee as a person who “owing to well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group or political opinion, [were]
outside the country of [their] nationality”.80 In the case of the Islanders, the source of their well-
founded fear of persecution was Jarl of Spellige’s authoritarian regime, which ordered “violent
repression of any opposition and critics”.81 In light of the imprisonment of the 125 returnees for
denouncing Jarl of Spellige’s inaction on the king tides,82 the remaining 3,000 refugees would
have feared similar repercussions if they returned, as they had denounced Jarl of Spellige’s
inaction themselves by having fled the Islands. 83
34. In addition, the 697 Islanders stripped of permanent residence and the 136 who had their work
visas revoked84 were also “lawfully present” in Cintria because the means of changing their status
was unlawful. Firstly, the memo demonstrates that the changes in the new Immigration Act were
arbitrarily applied only to Islanders,85 and secondly, in the absence of access to courts and
representation, the policy was devoid of due process.86
35. The “expulsion or other coercive acts” requirement is evidently fulfilled in the case of the
Islanders who signed “voluntary departure forms” under duress87 as well as those who were shot
for resisting expulsion.88 The remainder were “expelled” arbitrarily in a manner lacking due
process (para. 34). Consequently, the Islanders in question were all deported unlawfully.
36. Ms. Calanta may not rely on the defence of “grounds permitted under international law” as the
1951 Convention applies a principle of non-refoulement, “save on grounds of national security
or public order”.89 There is no evidence directly linking the Islanders to either of these.90
III.C.2. The objective element of indirect co-perpetration is fulfilled
37. The objective elements of indirect co-perpetration are those of ordinary joint commission, plus
four additional elements from Katanga. The elements of ordinary joint commission are: (1) a

80 Convention Relating to the Status of Refugees (1951), Art.(1)(A)(2).

81 Case Facts, para. 4.
82 Case Facts, para. 19.
83 Case Facts, para. 6.
84 Case Facts, para. 11.
85 Case Facts, para. 15.
86 Case Facts, para. 14.
87 Case Facts, para. 14.
88 Case Facts, para. 17.
89 Convention Relating to the Status of Refugees (1951), Art. 32(1).
90 Case Facts, paras. 13-14.

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 common plan, and; (2) coordinated contribution by each co-perpetrator.91 The common plan need
not be explicit, but “its existence can be inferred from the subsequent concerted action of the co-
perpetrators”.92 Therefore, the common plan can be inferred from her entrusting the minister,93
the large scale of the resulting deportations,94 and the fact that Ms. Calanta acknowledges that her
goals have been achieved. 95
38. The additional elements are: (1) control over the organisation;96 (2) control over the
organisational apparatus of power,97 and; (3) commission of the crime being “secured through
almost automatic compliance with orders”.98 Calanta, as President, is at the apex of the executive
hierarchy and clearly has control over the execution of immigration and security policy. As for
organisational control, the ICC has found a requirement of “hierarchical relations between
superiors and subordinates”99 which can be seen in the descending hierarchy of the President and
Minister (indirect co-perpetrators) and the immigration and police officers (direct-perpetrators).
39. The automatic compliance requirement was paraphrased by the ICC as where the subordinates
act as “a mere gear in a giant machine in order to produce the criminal result”.100 Although the
officers may be expected to question abnormal orders, deportation instructions are within the
everyday ambit of the officers, so automatic compliance is to be expected.
III.C.3. The subjective element of indirect co-perpetration is satisfied
40. The mental elements of indirect co-perpetration are: (1) the requisite subjective element of the
crime in question (per Art.30);101 (2) the parties to the common plan are mutually aware that the
plan will result in the realisation of the objective element of the crime (i.e. knowledge),102 and;
(3) knowledge of the factual circumstances enabling joint control of the crime.103
The requisite mental element under Article 30 is satisfied

91 ICC, Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the confirmation of charges, PTC I, 27 January 2007, paras.
343-348.
92 ICC, Prosecutor v. Katanga et al., ICC-01/04-01/07, Decision on the confirmation of charges, PTC I, 30 September 2008,
para. 523.
93 Case Facts, para. 10.
94 Case Facts, para. 13.
95 Case Facts, para. 20.
96 ICC, Prosecutor v. Katanga et al., ICC-01/04-01/07, Decision on the confirmation of charges, PTC I, 30 September 2008,
paras. 500-510.
97 Ibid., paras. 511-514.
98 Ibid., paras. 515-518.
99 Ibid., para. 512.
100 Ibid., para. 515.
101 Ibid., paras. 527-532.
102 Ibid., paras. 533-537.
103 Ibid., paras. 538-539.

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 41. Art.30(2)(a) requires intention in respect of the conduct, namely the indirect co-perpetration itself.
Because Ms. Calanta could not have executed the policy successfully without exploiting the
hierarchical structure of Government, when she directed her Minister to carry out the policy, she
must have intended, in dolus directus of the second degree, to execute a common plan with him.
42. Intention and knowledge are needed for the consequence element,104 namely deportations. Ms.
Calanta’s speech on 28 August 2018105 shows her primary objectives were to mitigate against
poor economic performance and crime. In that speech, she specifically blames the 4,000 Islanders
in Cintria and talks of them in the same way as illegal immigrants. Therefore, when she stated
her intention to take “concrete and extensive measures to tackle illegal immigration”,106 it is clear
that she intended to deport Islanders in particular. Even though the memo actually instructing
targeting Islanders was issued by the Minister,107 he was a party to the common plan under which
liability is shared with Ms. Calanta. The above also satisfies knowledge, as she would have known
that deportations would “occur in the ordinary course of events” (Art.30(2)(b)).
There was mutual awareness that the plan would result in the realisation of the crime and of
the factual circumstances enabling joint control
43. Ms. Calanta and the Immigration Minister would have known that as a result of their common
plan to bring about the policy of deportations, the deportations would occur.
44. Both co-perpetrators would have known that they were in a position enabling them to exercise
joint control over the apparatus of Government so as to bring about the deportations.
IV. PRAYER FOR RELIEF
45. In light of these submissions, the Prosecution respectfully request that the Court find that they do
have jurisdiction and that the case is admissible. In addition to this, it is requested that the Court
find President Calanta criminally responsible under Articles 25(3)(a) and 25(3)(b).

104 Rome Statute, Art. 30(2)(b), Art. 30(3).

105 Case Facts, para. 8.
106 Case Facts, para. 10.
107 Case Facts, para. 15.

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