moot memorial for applicant

8/12/2019 moot memorial for Applicant

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7th AMITY NATIONAL MOOT COURT

COMPETITION 2014

INTHEINTERNATIONALCOURTOFJUSTICE

PEACEPALACE, THEHAGUE

NETHERLANDS

CASECONCERNING THEINTENATIONAL CRIMINAL LAW

PROSECUTOR

APPLICANT

v.

PROSECUTOR

RESPONDENT

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

MEMORIALfor theRESPONDENT


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TABLE OF CONTENTS

LIST OF ABBREIATIONS............................................................................................................ 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 % th& (%t&*t #-& 3 th& *t#t& % N#5%)#, th& "#*& )* $%t #-)**)3& 3&%(& th& ICC. . 4

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

...................................................................................................................................................... 7

D. Th& #((&*t #$- *3*&8&$t t(#$*&( % M(. "#$9# t% ICC )* )&/#........................................ 9

E. Th& #""*&- )* $%t /)t % %%)$/ "()&*:........................................................................ 12

PRAYER......................................................................................................................................... xii
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LIST OF ABBREIATIONS

A(t. Article (unless otherwise noted, Art.

Designates articles of the Rome Statue)

Ch#3&( Pre-Trial Chamer

F#"t* !acts and Procedural "istor#

G&$%")-& C%$v&"t)%$ $nternational Con%ection on the

Pre%ention and Punishment of the

Crime of &enocide, Dec ', '*, +*

..T.S. ++, */.

ICC $nternational Criminal Court

ICJ $nternational Court of 0ustice

ICRC $nternational Committee of Red Cross

ICTR $nternational Criminal Triunal of

Rwanda

ICTY $nternational Criminal Triunal of

!ormer 1ugosla%ia

ILC $nternational 2aw Commission

N%. umer

Th& St#t& The Rome Statue

Th& R&* Rules of Procedures and 3%idence

UDHR ni%ersal Declaration of "uman

Rights

UN nited ations


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

............................ 5


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

Other Authorities

Antonio Cassese, The international criminal Court/ the ma)in of the Rome $tatute i$$ue$0 neotiation$0

re$ult$0 edited # Ro# S. 2ee in coo5eration with The Pro;ect on $nternational Courts and Triunals,

5ulished # The "ague> luwer 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., 7 $2R, 55. 7',7=/. at +6...................................................................... 3

$CRC,Ho1 i$ the term 2Arme% Conflict3 %efine% in international humanitarian la1F , 85inion Pa5er,


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STATEMENT OF JURISDICTION

The Prosecutor has a55roached the "onorale $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.


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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 lieral

democratic Constitution was ado5ted # countr# and res5onsile go%ernment form #a 5o5ular %ote. ut soon cou5 dLetat was arranged # the militaril# wings led #


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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 delierate attem5t # the go%ernment to wi5e the entire

ethnic 5o5ulation of masauri trie. 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 trie . 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 trie 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


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B. The 5rosecutor of the $CC tooI cogniKance of the matter and initiated the in%estigated.

2ater on 5re-trial chamer issued arrest warrent in the name of mr. 2ucanIa accused him

of committing acts of genocide.

SuseMuent during the trial chamer of the $CC,


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ISSUES RAISED

.. 4hether the $CC has the ;urisdiction to tr# the case against


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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 estalished since (i) the territorial State of

the crime committed here is not a State Part# to the Statute at the time of crime (ii) the state of

nationalit# of the accused is not a State Part# to the Statute either.

2. I$ )/ht % th& (%t&*t #-& 3 th& *t#t& % N#5%)#, th& "#*& )* $%t #-)**)3& 3&%(& 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 ;urisdiction and it

ne%er showed its unwillingness and its inailit# of ad;udication. aKolia has shown interest in

5rosecuting the


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;. Th& #((&*t #$- *3*&8&$t t(#$*&( % M(. L"#$9# t% ICC )* )&/#.

There are no reasonale grounds to elie%e that =3> ='v)))> &$)*t&- )$ th&

R%& St#t&.

There are elements that show the lacI of genocidal intent. The accused is not guilt# of crime

against "umanit# under Article +() (g).


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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$6has een estalished since the alleged crime

tooI 5lace in efore ;ul# // and


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3> Th& J()*-)"t)%$ ratione materiae)* $%t &*t#3)*h&- )$ th)* "#*&.

The defendant counsel would liIe to focus on the issue whether Th& T&%(# 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 Decemer //7, in which $CTR con%ictedthree mediamen for the crime of inciting genocide.*.!or the 5ur5ose of this Statue, @genocideE means an# of the following acts committed with intent to destro#, inwhole or in 5art, a national, ethical, racial or religious grou5.'.nless other 5ro%ided, a 5erson shall e criminall# res5onsile and liale for 5unishment for a crime within the;urisdiction of the Court onl# if the materials elements are committed with intent and Inowledge./.Art. (7) of the Rome Statue. $t has 5ro%ided a wa# for non-state to acce5t $CCs ;urisdiction # maIingdeclaration..


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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 Chamer 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 % th& (%t&*t #-& 3 th& *t#t& % N#5%)#, th& "#*& )* $%t #-)**)3& 3&%(& th&

ICC.

#> Th& "#*& )* $%t #-)**)3& 3&%(& th& ICC.

Articles + to ' of the Rome Statute determine the conditions of admissiilit#, which can e

defined as reMuirements to the acce5tance of a s5ecific case o%er which the $CC has ;urisdiction.

The 5resent situation is inadmissile efore the $nternational Criminal Court, once the

reMuirements estalished in the Rome Statute are com5letel# fulfilled.

3> P()$")& % C%)&$t#()t.

The $CC is ased on the 5rinci5le of com5lementar# where# the Court is susidiar# 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%ailale to collect the necessar# e%idence and to la# their hands on theaccused, and also since there was the intent to res5ect State so%ereignt# as much as 5ossile.

Art () of the Rome Statue.


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Com5lementar# is laid down in 5aragra5h / of the Preamle6

as well as in Article of the

Statute=

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 ;urisdiction and the State is willing

and has the ailit# 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

;ustifiale 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. /).*

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

States'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 answerale 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 a55licailit#. !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, '=).

63m5hasiKing that the $nternational Criminal Court estalished 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 themost serious crimes of international concern, as referred to in this Statue, and shall e com5lementar# to nationalcriminal ;urisdictions.

/.The case is eing in%estigated or 5rosecuted # a State which has ;urisdiction o%er it, unless the State is willing orunale genuinel# to carr# out the in%estigation or 5rosecution..$nternational Court of 0ustice, SS Lotu$((rance%. Tur)e*),PC$0 '+ Series A, o. /, + Se5temer '+, 9Cited asLotu$Case:..Ri-ar% %..nite% State$, S Court of A55eal ;udgment of 7+6 ! ed ** (6th Cir. '=+).7.The 2ands of Palmas Aritration, (Netherlan%$%. .nite% State$), '*, , R$AA *'..$srael,Eichman, Su5reme Court, ;udgement of '


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-> B(-&$ % P(%%

$t is a well estalished 5rinci5le that ad faith cannot e 5resumed under international law.

aKolia has shown interest in 5rosecuting the


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C. 6h&th&( th& ICC h#* %&( t% &'&(")*& )t* (%v)*)%$* (&t(%*&"t)v&.

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 5reamle Rome statute recogniKed that such gra%e crime threaten the 5eace, securit# andwell eing of the world.

2aw must not im5ose criminal liailit# 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 5ossile, 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 retriuti%etheor# 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

wrongdoers 5unishing 5re%ious wrongdoers would ha%e no deterrent effect u5on those future

wrongdoers.

"owe%er, if 5unishment is %iewed as societ#Os retriution for moral wrongdoing, thenretroacti%it# can e ;ustified. As 4illiams 5uts it>

... the ado5tion of retroacti%it# as a general 5rinci5le is altogether inadmissile ... it is un;ust ..7

ut, acce5ting that retros5ecti%it# has a role in the retriuti%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 thewrongdoerOs 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. 76


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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 natural

law

According to 4illiams, a numer of eminent ;urists se%erel# criticiKed the uremerg 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. oth of these ste5s were said to go e#ond eGisting international

law.

The uremerg trials are generall# said to ha%e een fair, des5ite the demonstral# retros5ecti%e

nature of the charges laid against the aKi defendants. This is clearl# due to societ#Os ahorrence

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 uremerg 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 uremerg, 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 &ermanCriminal Code in '76>=

In the case of Shaw v. Director of Public Prosecutions

Shaw was successfull# 5rosecuted under a numer 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, thatthe crime of cons5irac# to corru5t 5ulic 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 5ulicwelfare. The ma;orit# uilt their argument u5on the notion, 5ut forward # 2ord


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D. Th& #((&*t #$- *3*&8&$t t(#$*&( % M(. L"#$9# t% ICC )* )&/#.

The arrest and suseMuent transfer of


24/28

clearl# distinguished. Article 6* () (a) remains unsatisfied. An# 5ossile grounds are ased on

an eGtract of highl# dis5uted and unreliale e%idence, as well as se%eral coincidental e%ents.

Such e%idence cannot 5ossil# amount to reasonale grounds that would suffice to 5ro%ide

e%idence of the occurrence of a crime within ;urisdiction of the Court.

2> A((&*t % M(. L"#$9# )* $$&"&**#(.

3%en if


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$n %iolale and cannot e arrested in an# foreign states. nder international customar# law, i.e.


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E. Th& #""*&- )* $%t /)t % %%)$/ "()&*:

#> Th& #""*&- )* $%t /)t % "()& % G&$%")-& $-&( A(t)"& < =#> % th& R%& 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

numer of s5ecific o;ecti%e and su;ecti%e elements for indi%idual criminal res5onsiilit# 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 Th& #""*&- )* $%t /)t % "()& #/#)$*t H#$)t $-&( A(t)"& 7=1> =/> &$)*t&- )$ th&

R%& St#t&.

To estalish 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%ilian5o5ulation, with Inowledge of the attacI. !irstl#, there is nowhere mentioned in the facts that


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such an# act. Th& #""*&- )* $%t /)t % #( C()&* $-&( A(t)"& ?=2> =3>='v)))> &$)*t&- )$ th& R%&

St#t&.


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-PRAYER

4herefore, in the light of the Muestions 5resented, arguments ad%anced and authorities cited,

counsel on the ehalf of the Defendant reMuests this "onle Court to find, ad;udge and

declare that>

A.The Court cannot eGercise its ;urisdiction o%er the case.

.The case is not admissile efore the $CC.

C. The Chamer should decline to confirm the charge. The case should e dismissed on

5reliminar# asis (Art. 67 (). (c)).

D.The arrest and suseMuent transfer of

moot memorial for applicant

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