Team Number P80A eee Pg 1 of 8 (P80A)‘The 7" Red Cross International Humanitarian Law Moot JURISDICTION ‘The ICC has automatic jurisdiction over natural persons. Under Article 13(a) a crime referable by a State Party’ even if not committed in its territory or against its nationals”, Acceptance by either the state in whose territory the crime is committed or to state of the suspect’s nationality or both is a jurisdictional precondition under Article 12, Parties to the statute accept jurisdiction over core crimes and needn’t give specific consent in every case. ‘Territorial jurisdiction, though linked to ratification and other conditions, is unlimited.? Pace may exercise the same.* A sovereign state has jurisdiction over erimes by aliens in its territory even when any clement constituting the crime has been committed. Direct and substantial connection isn’t required for universal or quasi universal jurisdiction. Crimes may be committed wholly or partly.* Territoriality principle is based on opinio juris. This condition having been fulfilled, there is no prerequisite of nationality. Since consent of the state of nationality of the accused is unnecessary® the Court can exercise jurisdiction. State parties may refer situations and not specific crimes. A State concerned about atrocities committed elsewhere in the world needn’t identify the perpetrators before an ICC referral, As the word “interested” is not used, any States Party may refer a situation.” jon even when one When crimes are committed in multiple states, the court has jurisdi State (here Pace or Berbia) has ratified the Statute. ' The Rome Statute of the International Criminal Court, Art. 14, U.N, Doc. A/CONF. 183/9 (July 17, 1998). [Hereinafter ICC Statute} * Daniel Nsereko, Triggering the Jurisdiction of the ICC, 4 AFR. HUM. RTS. LJ. 256-274 (2004). 2 RM. Perkins, The Territorial Principle in Criminal Law, 22 HASTINGS LJ 1155 (1971). $42.30 Fact Dossier 5 CL Blaskey, Jurisdiction, 48 INTERNATIONAL CRIMINAL LAW, 271-279, (Cherif Bassiouni ed., ‘Transitional Publishers Inc, 1986). “ANTONIO CASSESSE, PAOLA GAETA & JONES R.W., THE ROME STATUTE OF INTERNATIONAL CRIMINAL COURT: A COMMENTARY 828-856 (Oxford University Press 2002). "The ICC Statute, Preamble, Article 1, Article 5. ‘Memorandum on Behalf of the Applicant Pe20f8 (P80A)‘The 7" Red Cross International Humanitarian Law Moot Applicant Arguendo, Cainite repudiated ICC Statute post September 2003. This doesn’t affect obligations created before termination.* Also, withdrawal takes effect after one year.” te can be inferred from the laws of state succession.” General Consent of Cai Intemational Law and law making treaties constitute an exception to the rule of non- transmissibility." In case of disintegration of Republics there is a presumption of continuity.” For law making treaties embodying IHL, the protection offered to individuals must be maintained independent of state.'* ‘Thirdly, crimes under the Statute'* codified by international treaties which have a high number of parties, subject states to international obligations", are founded in peremptory norms,'* favoring universality.” ADMISSIBILITY Pace has expressed its inability and unwillingness’ to prosecute, He hasn’t faced prosecution for these crimes in any other forum.'? The ‘complimentarity principle’ rants the ICC residual jurisdiction.” © The Vienna Convention on the Law of Treaties, Article 70, United Nations, TREATY SERIES, Vol. 1155 (May 23, 1969) [Hereinafter VCLT]. ? The ICC Statute, Article 127 © [AN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (Oxford University Press 1998) "'°D. O'CONNELL, STATE SUCCESSION IN MUNICIPAL LAW AND INTERNATIONAL LAW (Cambridge 1967) "IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES (Manchester University Press 1984), Akbar Rasulov, Revisiting State Succession to Humanitarian Treatles: Is There a Case for Automaticity? 14 BIIL, 141-170 (2003). Kenneth C, Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785, 829-3 1988). { hatonal Law lstut, Resolution ofthe $* Commision, Obligations ena omnes in Inertaonal Jaw (Aug 27 2008), http:/Avww-idiil. org/idiE/resolutionsE/2005_kra_01_en.pdf. "SVCLT, Ant. 53. " Prosecutor v. Kambanda, Case No. ICTR 97-23-S (Sept. 4, 1998); North Sea Continental Shelf Case, 43 ICI Reports (1969). 'S The ICC Statute, Article 17. The ICC Statute, Article 22 ©? ILC Draft Statute, Report Of The ILC on the Work of its Forty-Sixth Session, UN GAOR, 45th Sess., ‘Supp. No. 10, 4/49/10 (1994). Memorandum on Behalf of the Applicant Pg 3 of 8 (P80A)‘The 7" Red Cross International Humanitarian Law Moot Applicant CRIMINAL RESPONSIBILITY. Professor Gee is a civilian superior” His mens rea, extends beyond his own, to the concrete acts of his subordinates. He consciously disregarded information” that his subordinates (within area of competence”) were going to commit crime ordered by him. He exercised effective command and control.”* ‘Additionally, he may be held individually responsible under Article 25(2) and 3(b), (e) ICC Statute, By urging others to engage in criminality he committed the actus reus while his mens rea is evident in his speeches”. INDICTMENT 1 The Cainite protestors’”” acts between 10 January 2001 and 5 December 2003 are attributable to Professor Gee for they fulfill the essentials of genocide.* Mens rea has two components, knowledge and intent.” Professor Gee's speeches prove he had knowledge of the atrocities carried out by the “revolutionaries”. His intent can be inferred” from physical acts and massive, systematic nature of the atrocity. Additionally, genocide requires dolus specialis, “intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” It is unnecessary to prove actual destruction if there was intent to do so.' Berbians were targeted because of their ethnicity. The 2 1CC Statute, Article 28, Prosecutor v. Delalie Case No. 11-96-23-T (Nov. 16, 1998); Re Yamashita, 327 US 51 (1945). 2 Wu and Y. Kang, Criminal Liability For The Actions Of Subordinates, The Doctrine Of Command Responsibility, 38 HARVARD INTERNATIONAL LAW JOURNAL 291-292 (1997). Major James D. Levine, The Doctrine Of Command Responsibility And Its Application To Superior Civilian Leadership: Does The International Criminal Court Have The Correct Standard?, 193 MIL. L. REV. 52 (2002). ® Vetter Greg R, Command Responsibility of Non-Military Superiors in the International Criminal Court, 25 YALE J. INTL L. 89 (2000), 2 Fact dossier, 42.22. % Prosecutor v. Semanza, Case No. ICTR-97-20 (20 May 2005). % Prosecutor v. Musema, Case No, ICTR-96-13-A (Nov 16, 2001) ® Fact dossier, 2.18, 2.20, 2.24, 2.25 % The ICC Statute, Article 6(). ® The ICC Statute, Article 30. » Prosecutor v. Stakic, Case No. T-97-24-T (Buly 31, 2003), Prosecutor v. Bridjanin, Case No. 1T-99-36-T (Oct. 30 2002). eNO ‘Memorandum on Behalf of the Applicant Pp 4of 8 (P80A)The 7" Red Cross International Humanitarian Law Moot Applicant destruction (in whole or in part)’? targeted more than a small number of individuals who are members of a group.*> Destruction should involve a substantial part, not a very important part.“ The actions were premeditated, not spontaneous and involved a pattern of conduct. Even in absence of motive, intention is relevant to decide culpability. INDICTMENT 2 ‘The Murder of a hundred people from Smet on or about 10 October, 2003 constitutes a crime against humanity."* IHL includes them among jus cogens and grave breaches.” This is attributable to Professor Gee through ‘order’ as he was “a person in a position of authority using it to instruct another to commit an offence”.** Under Article 7(a) the attack was widespread as it was “directed against a multiplicity of victims.” It was Systematic, “following a common policy” of “Cainite for Cainites” advocated by him as part of a government policy or other private group.** Potential perpetrators include private individuals who need not identify themselves with this policy.” He is responsible by engaging in one such offence which is part of a consistent pattern of misbehavior by Cainite Volunteers linked to him (because they ‘engage in armed action on the same side and are parties to a common plan.)."” The event is an attack as a single act might be committed on such a scale amounting to a “widespread or systematic attack” encompassing the enumerated crimes." It may be not military or in relation to armed conflict. “° 2 Draft Statute on The Establishment Of ICC, UN DOC. A/AC. 249/1998/CRP. 8, p. 2. Prosecutor v. Simba, Case No.ICTR-01-76-T (December 13, 2005) ™ Prosecutor v. Jelesic, Case No.: IT-95-10-T (December 14, 1999) »® Prosecutor v. Blagojevic, Case No, IT-02-06-T (Jan. 17, 2005), °° CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 471-472 (Springer, 1992). » Ibid. » Prosecutor v Galic, Case no. 1T-98-29-T (June 21 2005). » Prosecutor v. Akayesu, Case No. ICTR-96-4-T, p. 580 (Sep. 2, 1998). © Supra, note 38 Prosecutor v.Kayishema and Ruzindana, Case No, ICTR-95-1-T, p. 123 (May 21, 1999). “2. Rauch, Conduct of Combat and Risks Run by the Civilian Population, 21 RDMDG 66, 67 (1982). © Prosecutor v. Tadic, Case No, IT-94-1-T, p. 649 (May 7, 1997). * Supra, note 41. a ‘Memorandum on Behalf of the Applicant Pp5 of 8 (P80A)‘The 7" Red Cross International Humanitarian Law Moot Applicant He satisfies the requisite mens rea by possessing actual or construetive knowledge of attack’, knowledge that his act fits in with the attack and is related to the armed conflict.” His intent can be inferred from knowledge of likely factual consequences of his misconduct minus specific consequences.“ ARMED CONFLICT The occurrence of de facto host is sufficient, It is not necessary to show that armed conflict was occurring during the proscribed act associated with the conduct of war.” Awareness of factual circumstances establishing the existence of an armed conflict is limited to the context and does not include facts establishing the character of the conflict. INDICTME! Professor Gee bears superior criminal responsibility for direct attacks against civilians not taking part in hostilities," by Cainite Volunteers. Under IHL (Articles. 51(2), 85(3)(a) AP I and 13(2), AP I}, the prohibition on attacking against the civilians is absolute.*! Military necessity cannot be invoked.” The parties to the conflict are obliged to distinguish between military targets and civilian person. The mens rea includes both guilty intent and recklessness and is inferred from non- compliance to Article 57(2)(i) and 57(2)(iii).* Specific result is not required.” The attack was in violation of IHL as civilian status of the persons killed or seriously injured “ Prosecutor v. Katanga, Case No. ICC-01/04-01/07 (Nov 5, 2007) + Supra, note 4, paras. 133-134. * Supra, note 43, paras, 656-659. * Prosecutor v. Nikolic, Case No. 1T-94-AR72, para. 26 (Oct 20 1995), © Stephan Glaser, Culpabilité en Droit International Pénal, 99 RECUEIL DES COURS 467, 504-505 1960). W TEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (Cambridge University Press 2005), 5 Prosecutor v. Marti, Case No, IT-95-I1-R61 (March 15, 2002). ® Prosecutor v. Dario Kordic and Mario Corkez, Case No, 1T-95-14/2-T, para. 326 (Feb 26 2001) © Prosecutor v. Tihomir Blaskic, Case No. 1T-95-14-T, para. 180 (March 3, 2000). Sid. © The ICC Statute, Article 30, Memorandum on Behalf of the Applicant Pg 6 of 8 (P80A)The 7° Red Cross International Humanitarian Law Moot Applicant was or should have been Imown and the attack was willfully directed® at “any person who did not look like a Cainite.” INDICTMENT 4 The confinement of Mary in the absence of threat to security amounts to a grave breach of the Statue and the GC's.” Article 28 of GC IV, 23 of GC III, 51(7) of AP I prohibit such confinement and misuse of protective status of the person and emblems.* Improper use of distinctive emblems is a war crime committed when, in an armed conflict, an intent to use for combatant purposes exists”, violating the provisions of the GC and AP authorizing their use, prohibited under international law." The prohibitions are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forees) immune from military operations.*' The actions of Professor Gee clearly flout this proscription through such misuse. 56 W.1.Rentick, A First Attempt to Adjualcate Conduct of Hostiltes Offences: Comments on Aspects of the ICTY Trial Decision in The Prosecutor v, Tihomir Blaskic 13 LEIDEN JOURNAL OF INTERNATIONAL LAW 939 (2000). 5 Supra, note 52, paras. 285 and 289, 5° The ICC Statute, Article 82)(aXvii). % Supra, note 21, para. 322. ©THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF CRIMES AND RULES OF PROCEDURE 110 (Roy S. Lee, Hakan Friman ed., Transnational Pub, 2001); WILLIAM A. SCHABAS, AN INTRODUCTION TO. THE INTERNATIONAL CRIMINAL COURT 43-4 (Cambridge University Press, 2001); PRIMER ON THE INTERNATIONAL CRIMINAL COURT 9 (Asian Forum For Human Rights Development, 2000). © Convention (Ii) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949 [Oct 21, 1950], ‘Article 23; Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 ‘August 1949 (Oct. 21, 1950], Article 28; The ICC Statute, Article 82)(b)Cxxi). nen Memorandum on Behalf of the Applicant Pe 7 of8 (P80A)The 7" Red Cross International Humanitarian Law Moot Applicant Fe PRAYER Itis prayed that the court may adjudge Professor Gee guilty under the Rome Statute for: a) Genocide under Article 6 (b). b) Crime Against Humanity under Article 7 (a) ©) War Crimes under Articles 8(2)(b)(i), 8(2)(a)( vii) and 8(2)(b)(%? And therefore punishable under Articles 25 and 28 for individual and superior responsibility. Respectfully submitted, The Prosecutor. een nnn aoe Memorandum on Behalf of the Applicant Pe 8 of 8 (P80A)