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TEAM CODE: TC 10_P

THE INTERNATIONAL CRIMINAL COURT


AT THE HAGUE, NETHERLANDS
BEFORE THE TRIAL CHAMBER

CASE NO. 69 OF 2016


(Under Article 13(b) of the Rome Statute)

The Prosecutor

... Prosecution
v.

Kivuos Luhar, et al

Defendant

WRITTEN SUBMISSIONS ON BEHALF OF THE PROSECUTION

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TABLE OF CONTENTS

TABLE OF CONTENTS... 1

INDEX OF AUTHORITIES. 2

LIST OF ABBREVIATIONS.7

STATEMENT OF JURISDICTION. 8

STATEMENT OF ISSUES... 9

STATEMENT OF FACTS................ 10

SUMMARY OF PLEADINGS. 12

PLEADINGS... 14

PRAYER.

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INDEX OF AUTHORITIES

CASES
1. Prosecutor v. Strugar, Case No. IT- 01-42-T (ICTY Trial Chamber-II, January 31, 2005).
2. Fritzsche, IMT Judgment, 22 The Trial of German Major War Criminals: Proceedings
of the International Military Tribunal Sitting at Nuremberg Germany (1946).
3. Government of Israel v. Adolf Eichmann, 36 I.L.R. 5 (D.C. (Jm.) 1961).
4. Prosecutor v. Ahman Harun & Ali Kushyab, Case No. ICC-02/05-01/07 (Decision on the
Prosecution

Application under Article 58(7) of the Statute, 27 Apr. 2007).

5. Prosecutor v. Akayesu, Case No. ICTR-96-4-T (ICTR Trial Chamber I, September 2,


1998).
6. Prosecutor v. Bagambiki, Case No. ICTR-99-46-T (ICTR Trial Chamber-III, February
25, 2004).
7. Prosecutor v. Blagojevi & Joki, Case No. IT-02-60-T (ICTY Trial Chamber-I, January
17, 2005).
8. Prosecutor v. Dario Kordic et al., Case No. IT-95-14/2-T (26 February 2001).
9. Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23/1-A (12 June 2002).
10. Prosecutor v. Kordi and erkez, Case No. IT-95-14/2-A (ICTY Appeals Chamber,
December 17, 2004).
11. Prosecutor v. Kupreskic et al., Case No. IT-95-16-T, (14 January 2000).
12. Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-8 (Decision on the Prosecutors
application for a warrant of arrest, 10 Feb. 2006).
13. Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-T (29 November 2002).
14. Prosecutor v. Nicolic, Case No. IT-94-2A (ICTY Appeals Chamber, February 4, 2005).
15. Prosecutor v. Niyitegaka, Case No. ICTR-96-14-A (9 July 2004).
16. Prosecutor v. Niyitegeka, Case No. ICTR-99-46-A (ICTR Appeals Chamber, July 7,
2006).
17. Prosecutor v. Ntakirutimana, Case No. ICTR-96-10-T and ICTR-96-17-T (ICTR Trial
Chamber, February 21, 2003).
18. Prosecutor v. Radislav Krstic, Case No. IT-98-33-A.
19. Prosecutor v. Ruggiu, Case No. ICTR-97-32-T (ICTR Trial Chamber-I, June 1, 2001).
20. Prosecutor v. Semanza, Case No. ICTR-97-20-T (ICTR Trial Chamber, May 15,2003).
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21. Prosecutor v. Seromba, Case No. ICTR-2001-66-I (ICTR Trial Chamber-I, December
13, 2006).
22. Prosecutor v. Staki, Case No. IT-97-24-T (ICTY Trial Chamber-II, July 31, 2003).
23. Prosecutor v. Tadic, IT-94-1-AR72 (Decision on the Defense Motion for Interlocutory
Appeal on Jurisdiction, 2 October 1995).
24. Prosecutor v. Vasiljevi, Case No. IT-98-32-A (ICTY Appeals Chamber, February 25,
2004).
25. Prosecutor v. Zejnil Delali et al., Case No. IT-96-21-A (ICTY Appeals Chamber,
February 20, 2001).
26. Prosecutor v. Duko Sikirica et al, Case No .IT-95-8-1(Judgment on Defense Motions to
Acquit).
27. Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08 ( Decision
Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against Jean-Pierre Bemba Gombo, 15 June 2009).
28. Prosecutor v. Katanga et al., Case No. ICC-01/04-01/07.
29. Prosecutor v. Naletilic et al., Case No. IT-98-34-T (31 March 2003).
30. Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09-125 (Decision
on the Prosecutions Application for a Warrant of Arrest against Omar Hassan Ahmed
Al Bashir, 4 March 2009).

ESSAYS, ARTICLES AND JOURNALS


1. Akhavan, Enforcement of the Genocide Convention: A Challenge to Civilization,
Harvard Human Rights Journal 29 (1995).
2. Alexander Dale, Countering Hate Messages that Lead to Violence: The United
Nations Authority to Use Radio Jamming to Halt Incendiary Broadcasts, 11 Duke J.
Comp. & Intl L. 109 (2001).
3. Alexander Greenawalt,Rethinking Genocidal Intent: The Case for a Knowledge-based
Interpretation, (1999) 99 Columbia L Rev 2288.
4. Ameer Gopalani, The International Standard of Direct and Public incitement to
Commit genocide: An Obstacle to U.S. Ratification of the International Criminal Court
Statute, 32 Cal. W. Int'l L.J. 87 (2001).
5. Guglielmo Verdirame, The Genocide Definition in the Jurisprudence of the Ad-hoc
Tribunals, 49(3) The International and Comparative Law Quarterly 578 (2000).
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6. Joshua Wallenstein, Punishing Words: An Analysis of the Necessity of the Element


of Causation in Prosecutions for Incitement to Genocide, 54 Stan. L. Rev. 351 (2001).
7. Kingsley Moghalu, International Humanitarian Law from Nuremberg to Rome: The
Weighty Precedents of the International Criminal Tribunal for Rwanda, 14 Pace Intl
L. Rev. 273 (2002).
8. Michael Akehurst, Custom as a Source of International Law, 47 Brit. Y.B. Intl L. 1
(1974-75).
9. R. Murphy, Gravity Issues and the International Criminal Court, 17 C.L.F. 281
(2006).
10. Van Shaack, The Crime of Political Genocide: Repairing the Genocide Conventions
Blind Spot, (1997) 106 Yale LJ 2259.

TREATISES AND DIGESTS


1. BRUNO SIMMA, The Charter of the United Nations: A Commentary (New York:
Oxford University Press, 1994).
2. CARSTEN STAHN, The Law and Practice of the International Criminal Court (Oxford
University Press, 1st edition 2015).
3. GIDEON BOAS AND WILLIAM SCHABAS, International Criminal Law
Developments in the Case Law of the ICTY (Leiden: Martinus Njoff Publishers, 2003).
4. IAN BROWNLIE, Principles of Public International Law (Oxford: Oxford University
Press, 2003).
5. Oppenheims International Law (9th edn., R. JENNINGS & A. WATTS EDS., London:
Peace, 1993).
6. OTTO TRIFFTERER, Commentary On the Rome Statute Of The International Criminal
Court, (Hart Publishing, 2nd ed., 2008).
7. WILLIAM A. SCHABAS, The International Criminal Court: A Commentary on the
Rome Statute (Oxford University Press, 2010).
8. WILLIAM SCHABAS, Genocide in International Law (Cambridge: Cambridge
University Press, 2000).

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SHORT WORKS
1. FATOU BENSOUDA, Gender and Sexual Violence Under the Rome Statute, in From
Human Rights to International Criminal Law: Studies in Honour Of An African Jurist,
The Late Judge Laty Kama, 401-417 (Emmanuel Decaux et. al. (eds.), Leiden/Boston,
2007).
2. M.H. ARSANJANI, Reflections on the Jurisdiction and trigger mechanisms of the
International Criminal Court, in: Reflections on the International Criminal Court:
Essays in The Honour of Adriaan Bos (H.von Hebel et al. (eds.), TMC Asser Press,
The Hague, 1999).
3. VELERIE OOSTERVELD AND CHARLES GARRAWAY, The Elements of Genocide, in The
International Criminal Court: Element of Crime and Rules of Procedure and Evidence
(Roy Lee et al. (eds.), New York, 2001).

TREATIES
1. Convention on Prevention and Punishment of the Crime of Genocide, (1948) 78
U.N.T.S 277.

UNITED NATIONS DOCUMENTS


1. Report of the Secretary-General Pursuant to Paragraph 5 of the Security Council
Resolution 808 (1993), U.N. Doc. S/25704 (1993), para. 47.
2. Draft Code of Crimes Against the Peace and Security of Mankind, Report of the
International Law Commission on the Work of its Forty-Eighth Session, 1996, U.N.
Doc. A/51/10 (1996).
3. Interim Report of the Commission of Experts Established Pursuant To Security Council
Resolution 780 (1992), UN Doc. S/35374.
4. Report of the International Commission of Inquiry on Darfur to the United Nations
Secretary-General: Pursuant to Security Council Resolution 1564 of 18 September
2004 (Geneva, 25 January 2005).
5. Secretariat Draft Convention on the Crime of Genocide, U.N. Doc. E/447.
6. UN Doc. A/C.6/SR.128.
7. U.N. Doc. A/CONF.183/C.1/SR.
8. UN Doc. A/CONF.183/C.1/SR.4.
9. Basic Principles of a Convention on Genocide, UN Doc. E/AC.25/7.
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STATUTES
1. International Criminal Court, Elements of Crime, 2011.
2. Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955
(1994).
3. Statute of the International Criminal Tribunal for the former Yugoslavia, U.N. Doc.
S/RES/827 (1993).
4. The Rome Statute, 2002.

INTERNET SOURCES
1. http://www.hiil.org
2. http://www.icc-cpi.int
3. http://www.iccnow.org
4. http://www.icty.org
5. http://www.ilsa.org
6. http://www.ssrn.com
7. http://www.un.org
8. http://www.unictr.org
9. http://www.westlawinternational.com

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LIST OF ABBREVIATIONS

Art.

Article

G.S.C.

Global Security Corp.

Honble.

Honourable

I.C.C.

International Criminal Court

I.C.T.R.

International Criminal Tribunal for Rwanda

I.C.T.Y.

International Criminal Tribunal for the former


Yugoslavia

I.L.C.

International Law Commission

Mr.

Mister

O.T.P.

Office of the Prosecutor

S.A.F.

Special Armed Forces

S.C.

Security Council

Sec.

Section

Statute

Rome Statute

U.N.

United Nations

Vol.

Volume

Z.L.F.

Zogmai Liberation Front

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STATEMENT OF JURISDICTION

It is hereinafter most respectfully submitted that the Prosecutor of this International Criminal
Court has the jurisdiction to exercise this petition under Article 13(b) of the Rome Statute of
the International Criminal Court, 2004. Article 13(b) of the Statute states as follows 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:
[]
(b) A situation in which one or more of such crimes appears to have been committed is referred
to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United
Nations.

The Prosecution humbly submits to the jurisdiction of this Honble Court.

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STATEMENT OF ISSUES

ISSUE 1: WHETHER THE HONBLE COURT HAS JURISDICTION TO HEAR THE MATTER
WHETHER THE MATTER IS ADMISSIBLE BEFORE THE COURT?

AND

ISSUE 2: WHETHER THE DEFENDANTS ARE GUILTY OF COMMITTING GENOCIDE UNDER


ARTICLE 6 OF THE STATUTE?

ISSUE 3: WHETHER THE DEFENDANTS ARE GUILTY OF COMMITTING CRIMES AGAINST


HUMANITY UNDER ARTICLE 7 OF THE STATUTE?

ISSUE 4: WHETHER THE DEFENDANTS ARE INDIVIDUALLY RESPONSIBLE FOR COMMITTING


GENOCIDE AND CRIMES AGAINST HUMANITY?

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STATEMENT OF FACTS

1. Pangaea is the largest continent comprising of over 80 States. On 26 January, 2000 the
Xaroian Empire broke into three independent countries Zogmai, Sonada and Tukhda. The
Xaroian influence led to the introduction of democracy in the three Pangaean nations.
2. In 2004, Sonada witnessed a revolution. The army stepped in and took over the operations
of the Government. On the other hand, Tukhda witnessed three successive inconsistent
coalition governments only to witness the same fate as Sonada. The army took over the
governance of Tukhda in 2007 and it appointed a 15-member Revolutionary Council headed
by the Army Chief.
3. Kehsihba Mavihs, was a Xaroian Leader and was elected as the Prime Minister of Zogmai
in the 2013 elections. He passed an ordinance to nationalize all mining activities in the
country. However, the President of the country, Kivuos Luhar, acting in contravention to
the provisions laid down in the Constitution rejected the request of the Cabinet. This led to
separate factions of supporters for both the President and the Prime Minister. The state of
affairs in Zogmai begin to retrograde. The Bawlis led by Luhar got utmost support of the
neighbouring radical Bawli Leaders. The Prime Minister of Sonada, General Raknahj
Atimorap, assisted the Bawli group of Zogmai by sneaking in arms, ammunitions and troops
in civilian clothes.
4. On 25th day of August, 2014, Kehsihba Mavihs died when his car was ambuscaded. The
Pro-Mavihs Xaroians believed that this was executed by the Pro-Luhar militants who had
crossed the borders of Tukhda. A national emergency was proclaimed by the President, who
appointed General Radam Idnar as the chief of the Zogmain armed forces by Luhar. He was
authorised to take all the necessary actions required to suppress the civil war and extirpate
all the pro-Mavihs militancy by the official order of 28th August, 2014.
5. Nayas Mavihs stepped into the shoes of the late Kehsihba Mavihs and took over the
leadership of the Pro-Mavihs insurgents. He raided the cluster of nine villages in Chumta.
The tribes of Chumta were believed to be the firm supporters of the President. The entire
population of 15000 including women and children were beheaded. Even the UNESCO
protected ancient Bawli temples were completely ruined.
6. Under the command of General Idnar, the SAF were led by Lt. General Tyrion Pega and
partners of the GSC to mount an attack on the Xaroian villages of the Pekka region. Nayas

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Mavihs, along with 150 of his supporters, somehow, managed to flee. A regiment of SAF
led by Col. John Bolton, a partner in GSC, traced them down and killed them.
7. By the end of December, 2014, the civil war had taken away the lives of over a million in
Zogmai. The majority of the victims were the Xaroians. Young Xaro boys were forced to
convert and join the SAF. Xaro girls were kidnapped and were forced to cohabit with them
so that they would bear Bawli children. Brutality crossed its limits as in some cases, the
Xaroian children were forced to mutilate and murder their family members. Any hesitation
would lead to death.
8. Acting under Article 99 of the UN Charter, the Secretary-General convened an emergency
meeting of the Security Council. On the very first day of March, 2015, the Security Council
finally acting under Chapter VII of the Charter, Resolution 1540, declared that a civil war
existed in Zogmai and that; there have been commission of acts of genocide and crimes
against humanity. All the parties to the conflict were commanded to abstain from any such
atrocities. Further, a UN Peacekeeping Force for Zogmai (UNPFZ) was delegated to restore
peace and security.
9. The Prosecutor of the International Criminal Court (ICC) carried out the investigation of the
case in consonance with the Pre-Trial Chamber proceedings. Meanwhile, the Apex Court of
Zogmai has been moved for a writ of mandamus by the Accused persons. A joint trial of all
the Accused persons is scheduled to commence at The Hague from 26th February, 2016.

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SUMMARY OF PLEADINGS

ISSUE 1: THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION TO


TRY THIS MATTER AND THE MATTER IS ADMISSIBLE
The jurisdiction of the ICC under Article 12, is automatically triggered if any acts falling
under article 5 of the Rome Statute are committed by a national or over the territory, of a State
Party. The State of Zogmai being a Party to the Rome Statute, brings the Accused persons
directly under the jurisdiction of the International Criminal Court. Further, the matter is also
admissible before the Court and does not fall under Article 17 of the Statute. The issue of
Admissibility being an important facet of the working of the Court, prescribes two tests that are
to be satisfied in order to proceed with a Trial. These are the tests of complementarity and
gravity.
Article 17(1) states that a case is inadmissible when it is being investigated or prosecuted
by a State that has jurisdiction over it. In such circumstances the Court may only proceed where
the State is unwilling and unable genuinely to investigate or prosecute the case. In the present
case, the Accused persons have not been tried in the criminal courts of Zogmai and neither has
any investigation or arrests been made. The State has remained inactive in relation to the case
and is unwilling or unable, within the meaning of Article 17(l) (a) to (c), 2 and 3 of the Statute.
Secondly, mass and widespread atrocities falling under Article 5, have been committed against
the Xaroian population of Zogmai, by or under the command of the Accused persons,
demonstrating sufficient gravity to proceed with a Trial. Hence, this case is admissible before
the ICC.

ISSUE 2: KIVUOS LUHAR AND OTHERS ARE GUILTY OF GENOCIDE


The Accused persons in the present case had the intent to destroy, in whole or in part,
the Xaroian population in Zogmai, and this is established by the fact that the Zogmain armed
forces and the SAF had mounted attacks on Xaroian villages of Pekka region and destroyed
the region completely. The majority of the people who were killed by the Zogmain armed
forces and SAF were Xaroians. The accused knew that the Xaroians were a protected group
under the Rome Statute. The armed forces have committed acts of killing the members of
Xaroian group, have caused serious bodily or mental harm to them and have forcibly
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transferred children to other group. Hence they are liable for committing genocide under
Article 6 of the Rome Statute.

ISSUE 3: KIVUOS LUHAR AND OTHERS ARE GUILTY OF CRIMES AGAINST


HUMANITY
The Accused persons in the present case have caused attacks that were widespread and
systematic, in pursuance of State policy, which can be inferred from the Official order dated
28 August 2014, issued by President Luhar to suppress the civil war. Pursuant to this, the
decisions taken by some of the Accused persons in suppressing the rebels and the civil war
show that they had explicit knowledge that the Xaroians were being attacked. The crimes such
as murder, torture, persecution and other sexual offences committed against the Xaroians, a
civilian population clearly proves that the accused have committed crimes against humanity as
per Article 7 of the Rome Statute.

ISSUE 4: THE ACCUSED ARE INDIVIDUALLY RESPONSIBLE FOR


COMMITTING GENOCIDE AND CRIMES AGAINST HUMANITY
The Accused are persons who held high positions in the Government as well as the
military. It is submitted that all the Accused persons have committed offences punishable by
the Court, as per provisions of the Rome Statute either by committing the act, aiding the acts
or by way of ordering/authorizing the acts as per Article 25 of the Rome Statute. Hence, each
of them can be tried individually for crimes committed.
The Accused persons being military commanders and superior officers of the military i.e. the
Zogmain Armed Forces and the SAF, are additionally responsible for being tried for the crimes
of genocide and crimes against humanity that were committed during the Zogmain civil war,
as they failed to effectively stop the forces or the subordinates that they led or controlled, from
committing such crimes.

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PLEADINGS

ISSUE 1: THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION TO


TRY THIS MATTER AND THE MATTER IS ADMISSIBLE
1.

The International Criminal Court has jurisdiction to try the present matter as per
Articles 5, 11, 12 and 13 of the Rome Statute. The case is also admissible before the
Court as per provisions of Article 17 of the Rome Statute of the ICC.

1.1 THE ICC HAS JURISDICTION


2. To prove the jurisdiction of the ICC, three things must be met. Firstly, the offence
ratione materiae is found in the list of offences mentioned in Article 5. Secondly,
precondition for the ICC to exercise jurisdiction must be met. Thirdly, the case must be
initiated as per the provisions of Article 13 i.e. triggering the jurisdiction of ICC.1

1.1.1. JURSDICTION RATIONE MATERIAE


3. The jurisdiction of the International Criminal Court is determined by Article 5 of the
Rome Statute. Article 5 states that The Court has jurisdiction in accordance with this
Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes
against humanity; (c) War crimes; (d) The crime of aggression. The ratione materiae
is satisfied if the alleged Acts of the Accused fall under any of the offences mentioned
above. Hence, any Acts committed that falls under any of the above mentioned offences
can be tried by the ICC.
4. All the Defendants i.e. President Luhar, Gen. Radam Idnar, Lt. Gen. Tyrion Pega, Lt.
Col. John Bolton and Chief Colonel D. C. Keviv have committed Acts amounting to
the commission of offences of Genocide and Crimes against Humanity that are
punishable under Articles 6 and 7 of the Rome Statute respectively. Hence, the ratione
materiae is satisfied.

OTTO TRIFFTERER, Commentary On the Rome Statute of the International Criminal Court, 548 (Hart Publishing,
2nd edn., 2008).

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1.1.2. JURISDICTION RATIONE TEMPORIS


5. Article 11 of the Rome Statute deals with the jurisdiction of Court ratione temporis i.e.
the Rome Statute is applicable only in cases where the alleged offences punishable
under the Rome Statute are committed in a State after the entry into force of the Statute.
This means that the Acts amounting to offences under the Statute after the coming into
force of the ICC i.e. on 1 July, 2002 can be tried by ICC. Article 11 (2) states that if a
State becomes a Party to this Statute after its entry into force, the Court may exercise
its jurisdiction only with respect to crimes committed after the entry into force of this
Statute for that State. This essential means that if some State say State A becomes a
party to the Rome Statute on 1 August 2004, then the Rome Statute shall be applicable
to crimes committed in that State only after 1 August 2004 and not from 1 July 2002.
This is also an important aspect in deciding whether a case can be tried by the Court or
not.
6. In the present case, it has been mentioned that Zogmai is a party to the Rome Statute
and all other relevant treaties. Hence it shall be so construed that the Rome Statute
became applicable to Zogmai from 1 July, 2002. Hence the acts committed by the
Defendants from August 2014 to December 2014 can be tried by the ICC as it has been
established to have jurisdiction ratione temporis in the said matter.

1.1.3. JURISDICTION RATIONE PERSONAE AND RATIONE LOCI


7. There are certain pre-conditions to the exercise of jurisdiction by the International
Criminal Court.2 Article 12(1) states that a State that becomes a party to the Statute
accepts the jurisdiction of the ICC for offences committed under Article 5. Hence, this
necessarily means that any acts amounting to offences as per Article 5 of the Statute,
regarding the State which has become a party to the Statute can be tried by the ICC.
8. Article 12(2)(a) deals with ratione loci. Any offences punishable by ICC if committed
on the territory of the State party or on board a vessel/aircraft belonging to the State
Party, can be tried by the ICC exclusively. Apart from this Article 12(2)(b) deals with
ratione personae i.e. jurisdiction relating to persons. It states that if the offences are

Rome Statute of the International Criminal Court, Article 12, U.N. Doc. A/CONF.183/9 (1998). [hereinafter
Rome Statute]

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committed by nationals of States that are parties to the Statute, then the Court can
automatically exercise jurisdiction upon those persons, no matter where the offences
were committed.
9. The jurisdiction of the ICC will extend naturally to the State of Zogmai as per Articles
12(1) and 12(2)(a), as the offences are committed on the territory of Zogmai which is a
party to the Rome Statute. The alleged commission of offences punishable by the ICC
have been committed by persons who are nationals of Zogmai in the State of Zogmai.
Hence the ICC has both jurisdiction ratione loci and ratione personae to try this matter.

1.1.4 TRIGGERING THE JURISDICTION


10. Article 13 of the Rome Statute deals with the provision that contains the triggering
mechanisms. It is referred to as triggering because the Court can exercise jurisdiction
effectively only and only in case any of such mechanisms are employed. These
mechanisms are said to provide the ICC with a certain requisite, to exert its jurisdiction
over offences that are punishable under the Rome Statute. Article 13 states that 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;
b) A situation in which one or more of such crimes appears to have been committed
is referred to the Prosecutor by the Security Council acting under Chapter VII of
the Charter of the United Nations; or
c) The Prosecutor has initiated an investigation in respect of such a crime in
accordance with article 15.
11. In any of the above mentioned three situations, the ICC can exercise its jurisdiction to
try and punish cases made punishable under the Rome Statute. Among the three
mentioned above, the referral by the Security Council is important. Any referral that is
made by the Security Council to the ICC must confirm to norms mentioned in Article
13(b) i.e. it must be made by the Security Council acting under Chapter VII of the
Charter of the United Nations. Article 39 of the Chapter VII of the UN Charter states
that the Security Council shall determine the existence of any threat to the peace,
breach of the peace, or act of aggression and shall make recommendations, or decide

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what measures shall be taken in accordance with Articles 41 and 42, to maintain or
restore international peace and security. Hence Article 13(b) means to say that a
referral can be made by UNSC to the ICC only and only if it has acted in accordance
with provisions of Chapter VII. Therefore, there must be a situation in a State whose
existence would, according to UNSC, lead to any threat of peace shall be determined
by the Security Council. Such situations then shall be voted upon and a Resolution shall
be passed by the UNSC declaring that such a situation exists.
12. In the present case, there were widespread attacks alleged to be committed by Zogmain
armed forces against the civilians present in the State of Zogmai. During the outbreak
of the civil war, the Bawlis led by Luhar got support from radical Bawli leaders from
neighboring places. The Prime Minister of Sonada, General Raknahj Atimorap assisted
the Bawli group of Zogmai by sneaking in arms and ammunitions and troops in civilian
clothes. The involvement and participation of mutineers from the States of Sonada and
Tukhda in the civil war of Zogmai internationalized the issue. Hence, the UNSC acting
under Article 39 of the Chapter VII of the UN Charter passed Resolution 1540 and
declared that a civil war existed in Zogmai. Pursuant to this, a UN Peackeeping Force
for Zogmai (U.N.F.P.Z.) was also deployed with the intent to restore peace and security.
13. Hence, the UNSC referral to the ICC of the situation in Zogmai is completely justified
and has triggered the jurisdiction of the ICC. Now the ICC can take up the matter and
prosecute the criminals for commission of offences punishable under Article 5 of the
Rome Statute.

1.2. THE MATTER IS ADMISSIBLE IN ACCORDANCE WITH THE ROME STATUTE


14. All matters shall be admissible before the ICC if the preconditions of jurisdiction have
been met in accordance with Article 12 & 13 of the Rome Statute. However, Article 17
of the Rome Statute illustrates those conditions under which a matter shall be
inadmissible before the Court.3The Article imposes three tests of admissibility which
are, complementarity, double jeopardy and gravity. If these tests are not satisfied, then
the matter becomes inadmissible before the Court. Early discussions of Article 17
focussed on the issue of complementarity as if it were synonymous with admissibility.
It has since become clear that in order to determine if a matter is admissible before the
3

Rome Statute, Article 17.

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ICC, the issues complementarity and gravity have to be addressed.4 Article 17 states
that the ICC may not proceed with a case only when the concerned States are
investigating or prosecuting in good faith.5 However, this condition is not met in the
present matter.

1.2.1 ARTICLE 17(1)(A) & (B) ARE NOT APPLICABLE IN THE PRESENT MATTER
15. Article 17 dealing with admissibility issues is the cornerstone of the Rome Statute.
Paragraph 10 of the Preamble and the Article 17(1) state that the ICC established under
this statute shall be complimentary to national criminal jurisdictions, Article 1
reiterates this and Article 17(1) states that a case is inadmissible when it is being
investigated or prosecuted by a state that has jurisdiction over it, or when the case has
already been investigated and the state has decided not to prosecute. In such
circumstances the court may only proceed where the State is unwilling and unable
genuinely to investigate or prosecute the case.6
16. The principle of complementarity contained in article 17 para 1 (a) and/ (b) is one of
the underlying principles of the statute.7The Pre-Trail Chamber 1, has spoken of
complementarity as being the first part of the admissibility test.8The aim of the statute
is not to negate State sovereignty, but provides for inbuilt safeguards to preserve
national interests and judicial integrity on the domestic level.9
17. Before Prosecutor Luis Moreno-Ocampo took over, in July 2003, the Office of the
Prosecutor commissioned an expert study on what it termed complementarity in
practice. Several prominent authorities on international criminal law, both academics
and practitioners, participated in preparing a report.10

Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-8 (Decision on the Prosecutors application for a warrant
of arrest, 10 Feb. 2006), para 29. (Lubanga)
5
Lubanga
6
Rome Statute, Article 17.
7
M.H. ARSANJANI, Reflections on the Jurisdiction and trigger mechanisms of the International Criminal Court,
in: REFLECTIONS ON THE INTERNATIONAL CRIMINAL COURT: ESSAYS IN THE HONOUR OF ADRIAAN BOS 67 (H.von
Hebel et al. (eds.), TMC Asser Press, The Hague, 1999).
8
Lubanga, at para 29.
9
TRIFFTERER, supra note 1 at 606.
10
International Criminal Court Office of the Prosecutor, Informal Expert paper: The principle of
Complementarity in practice, 2003 (March 30, 2009), https://www.icc-cpi.int/iccdocs/doc/doc654724.PDF.
(Informal Expert Paper)
4

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[] to decline to exercise jurisdiction in favour of prosecution before the ICC is a step


taken to enhance the delivery of effective justice, and is thus consistent with both the
letter and spirit of the Rome Statute and other international obligation with respect to
core crimes. This is distinguishable from a failure to prosecute out of apathy and or a
desire to protect perpetrators, which may be properly be criticised as inconsistent with
the fight against impunity.11
18. In effect, the experts had developed a theory of uncontested admissibility by which a
state respected its obligations to prosecute by failing to prosecute. A state would be
judged by its compliance with the duty to prosecute by an analysis of its motives rather
than its actions. The Prosecutor himself began to endorse this philosophy, by which the
Courts operations might result from cooperation rather than antipathy.12
19. In Lubanga, the Pre-Trial Chamber determined that no State with Jurisdiction over the
case against Mr. Thomas Lubanga Dylio is acting, or has acted, in relation to such case.
Accordingly, in the absence of any acting State, the Chamber need not make any
analysis of unwillingness or inability.13 Similarly, with respect to one of the two
Sudanese arrest warrants, the pre-Trail Chamber appeared to accept the Prosecutor
submission that, despite the fact that Ali Kushyab had been arrested and was under
investigation with respect to the incidents in Darfur, the investigation undertaken by
the Sudanese authorities did not encompass the same conduct which is the subject of
the application before the Court14 As for the other accused, there was no indication
that Ahmad Harun is under investigation, nor was there any indication that any
prosecution had been initiated against him before national jurisdiction for any crime
relating to the situation in Darfur, Sudan15
20. Pursuant to the uncontested admissibility theory developed by the Office of the
Prosecutor, the complementarity test is satisfied by inactivity rather than by an overt
display of the States unwillingness or inability to proceed. There is no reference to
inactivity of the national justice system in article 17 para 1. Nevertheless, the concept
has been recognised by one of the Pre-trial Chambers. In Lubanga, Pre-Trial Chamber
11

Informal Expert Paper supra note 10 at 19.


Paper on some policy issues before the Office of the Prosecutor, (September 2003), :http://www.icccpi.int/NR/rdonlyres/1FA7C4C6-DE5F-42B7-8B25- 60AA962ED8B6/143594/030905_Policy_Paper.pdf, p.5.
13
Lubanga, at para 40.
14
Prosecutor v. Ahman Harun & Ali Kushyab, Case No. ICC-02/05-01/07 (Decision on the Prosecution
Application under Article 58(7) of the Statute, 27 Apr. 2007), para 24.(Kushyab)
15
Ibid; Prosecutors report to the Security Council: U.N.Doc. S/PV. 5687, p.3.
12

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1 said: The first part of the test relates to the national investigations, prosecutions and
trials concerning the case insofar as such case would be admissible only if those States
with jurisdiction over it have remained inactive in relation to that case or are unwilling
or unable, within the meaning of Article 17(1) (a) to (c), 2 and 3 of the Statute 16
21. In the present matter, the State of Zogmai has not initiated any investigation or trial
proceedings against the Accused persons. There has been a complete lack of activity on
the behalf of the judicial system of Zogmai. The State of Zogmai is under the veil of a
National Emergency, which leaves little room for the Judiciary to undertake any form
of investigation or Trial. Further, by December 2014, the lives of several Zogmai
citizens, a majority of which were Xaroians, were lost. The declaration of a civil war by
the United Nations Security Council was made in March 2014 and investigation by the
Office of the Prosecutor was commenced soon thereafter. During this period, there were
no initiatives undertaken by the State of Zogmai to undertake domestic proceedings or
investigations and the Accused persons were neither detained nor were they arrested.
This shows the complete lack of willingness and ability of the State of Zogmai to
undertake domestic proceedings.
22. Determination of unwillingness must be done in accordance with article 17(2) of the
Rome Statute. Article 17(2) sub paragraph 1, states that if a State is engaging in an
investigation or a Prosecution, but is in fact having a sham proceeding to shield the
person concerned from criminal responsibility for crimes within the jurisdiction of the
Court, such a matter shall be admissible.17 Further, if the ICC determines that the
proceedings were not or are not being conducted independently or impartially and are
in fact being conducted in a manner, which is in the circumstances, is inconsistent with
an intent to bring the person to justice the case will be admissible.18The filing of a writ
of mandamus before the Apex Court of Zogmai, by the Accused persons, is only an
attempt to shield the accused persons from a Trial at the ICC. It is merely a ploy to delay
the proceedings, which clearly indicates a violation of due process as required in Article
17(2), making the matter admissible before the ICC.
23. In addition, the act of the Apex Court, by appointing a law officer to as an amicus curia,
during the proceedings at The Hague, demonstrates the assent of the Court in conducting

16

Lubanga, at para 29.


TRIFFTERER, supra note 1 at 619
18
Ibid.
17

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the proceedings at the ICC. Thus, the overt acts of the Sate of Zogmai, imply the
presence of uncontested admissibility, in accordance with Article 17.

1.2.2 THERE IS SUFFICIENT GRAVITY TO JUSTIFY THE TRIAL


24. The final ground of inadmissibility is where the case is not of sufficient gravity to justify
further action by the ICC. Article 17 para (d) of the Rome Statute states that a case may
be declared inadmissible when it is not of sufficient gravity to justify further action by
the Court19 The Pre-Trial Chamber I in the Lubanga case accorded considerable
attention to the issue of gravity, which it treated as the second prong of admissibility
determination. It held that:
The Chamber holds that the following two features must be considered. First, the
conduct which is the subject of a case must be either systematic (pattern of incidents)
or large scale. If isolated instances of criminal activity were sufficient, there would be
no need to establish an additional gravity threshold beyond the gravity-drive selection
of crimes included within the material jurisdiction of the Court. Second, in assessing the
gravity of the relevant conduct, due consideration must be given to the social alarm
such conduct my have caused in the international community.20 The Pre-Trial Chamber
said that the social alarm component was particularly relevant, due to the social
alarm in the international community.
25. The present matter fulfils the criteria of having sufficient gravity, as required to bring a
matter before the ICC. The two features as held in the Lubanga case are present. Firstly,
there has been a systematic and widespread killing, torture and eradication of the
Xaroian population. Xaroian children have been enlisted as child soldiers in the SAF
and have been forced to mutilate and kill their own parents. Xaroian women have been
forcefully married to and impregnated by, the Bawali men, all of which have been
undertaken and headed by the Accused persons. These incidents are not sporadic in
nature and are not isolated incidents. Secondly, the incidents and crimes committed by
the accused persons in accordance with Article 5, have caused social alarm in the
international Community, causing several human rights violations as well as

19
20

R. Murphy, Gravity Issues and the International Criminal Court, 17 C.L.F. 281 (2006).
Lubanga, at para 40

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endangering international peace and security. Thus, the present matter does not fall
under article 17 (1) for being inadmissible due to insufficient gravity.

1.2.3 THERE CAN BE NO CHALLENGE TO THE JURISDICTION OR ADMISSIBILITY


UNDER ARTICLE 19 OF THE STATUTE
26. Article 19 of the Statute regulates the context within which challenges to jurisdiction
and admissibility may be raised by a party having interest in the matter, according to
the Appeals Chamber.21
27. Article 19(4) specifies that the challenge must be made prior to or at the
commencement of the trail. In exceptional circumstances, the Court may grant leave
for a challenge to be brought more than once or at a time later than the commencement
of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or
subsequently with the leave of the court, may be based only on article 17(1)(c) that is,
ne bis in idem or double jeopardy.22 The Trial Chamber concluded that once the
confirmation of charges has taken place, the only permissible exceptions concerning
admissibility are those based on article 17(1)(c) of the Rome Statute. 23
28. In the present case, in accordance with the decision held in the Katanga judgment, there
has been no Trial undertaken by the State of Zogmai and hence, there can be no
challenge to admissibility of the present issue before the ICC under Article 17(1)(c)
dealing with the issue of double jeopardy. Thus, the present matter is automatically
admissible before the International Criminal Court.

21

Rome Statute, Article 19.


The Prosecutor v. Katanga et al. (ICC-01/04-01/07), para 41. (Katanaga)
23
Ibid.
22

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ISSUE 2: KIVUOS LUHAR AND OTHERS ARE GUILTY OF GENOCIDE

29. It is humbly submitted before this Honble Court that, President Kivuos Luhar, Gen.
Radam Idnar, Lt. Gen. Tyrion Pega, Col. John Bolton and Col. D C Keviv are guilty of
committing the offence of genocide under Article 6 of the Rome Statute of the
International Criminal Court.
2.1 THE INGREDIENTS OF GENOCIDE ARE SATISFIED IN THE PRESENT CASE
Genocide constitutes the most aggravated form of crime against humanity.24 Genocide
means any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, 25 as such:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.

2.1.1 REQUIREMENT OF INTENT IS SATISFIED


30. One of the necessary factors of the crime of Genocide is that there must be a special
intent or dolus specialis. As one can see, Article 6 requires the perpetrator to commit
the mentioned acts with intent to destroy in whole or in part a national, ethnical, racial
or religious group as such. The International Tribunal for the Former Yugoslavia
Appeals Chamber stated that, genocide is one of the worst crimes to be known to
humankind, and its gravity is reflected in the stringent requirement of specific intent.
Convictions for genocide can be entered only where that intent has been unequivocally

24

WILLIAM SCHABAS, Genocide in International Law, 128 (Cambridge: Cambridge University Press, 2000).
(SCHABAS 2000)
25
Rome Statute, Article 6; See also, Convention on the Prevention and Punishment of Genocide, Article 2, (1951)
78 U.N.T.S. 277.

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established.26 This was also the stand taken by the International Criminal Court in the
case of Bashir.27
31. It can be seen that President Luhar authorized Gen. Idnar to take all necessary action to
extirpate all the pro-Mavihs militancy by an official order of 28th August 2014. It was
due to this that Zogmain armed forces went onto massacre anyone who would not
support the cause of the President. Apart from this, the SAF was led by Gen Tyrion
Pega and other partners of GSC to mount attack in Xaroian villages. This all clearly
shows that the Zogmain Armed forces had the intention of destroying.
32. Arguendo there is another approach towards the contextual element under Elements of
Crimes, it can be deduced that emphasis is more on the mental element of perpetrators
knowledge rather than that of his intent. This approach is known as the knowledgebased approach.28 The same gained significant approval by the Pre-Trial Chamber I of
the ICC in the Bashir judgment. In its own words, according to this approach, direct
perpetrators and mid-level commanders can be held responsible as principals to the
crimes of genocide even if they act without the dolus specialis/specific intent to destroy
in whole or in part the targeted group. These people will be liable for committing
genocide as long as they are aware that the ultimate purpose of such a campaign is to
destroy in whole or in part the targeted group.29 Likewise, presence as well as
requirement of the same is also mentioned in Article 30 of the Rome Statute.30
33. President Luhar, Gen. Idnar, Lt. Gen. Tyrion Pega, Col. D. C. Keviv, and Col. John
Bolton knew attacks on Xaroian villages and targeting more and more of Xaroians
during the state of civil war would eventually end up in the groups destruction.

2.1.2 DESTRUCTION OF WHOLE OR IN PART OF THE GROUP


34. The expression in whole or in part may be so construed to mean that it is not intended
that the crime of genocide extend to isolated acts of racially motivated violence.
Prosecutor v. Radislav Krstic, IT-98-33-A, at para. 134.(Krstic)
The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-125 (Decision on the Prosecutions
Application for a Warrant of Arrest against Omar Hassan Ahmed Al Bashir, 4 March 2009), para. 139.(Bashir)
28
Alexander Greenawalt, Rethinking Genocidal Intent: The Case for a Knowledge-based Interpretation, (1999)
99 Columbia L Rev 2288.
29
Bashir,(Decision on the Prosecutions Application for a Warrant of Arrest against Omar Hassan Ahmed Al
Bashir, 4 March 2009), para. 139, n. 154; See also CARSTEN STAHN, The Law and Practice of the International
Criminal Court 696 (Oxford University Press, 1st edition 2015).
30
Rome Statute, Article 30.
26
27

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Therefore, it means that there must be a quantitative threshold. Apart from this, the
words in whole or in part indicate that the perpetrator need not intend to destroy the
entire group but only a substantial part of it.31 Hence genocide is also committed if a
significant part of the group is destroyed. This significant part may consist of persons
of special significance to the group, such as the leadership of the group.32
35. By the end of December 2014, majority of the people amongst the millions who lost
their lives due to this civil war, were Xaroians. This particular group was targeted the
most by the Zogmain Armed forces acting under the command of Gen. Idnar and Lt.
Gen. Tyrion Pega. It can be stated that this amount constituted a substantial part of
the Xaroian group of people.
36. The Appeals Chamber of the International Criminal Tribunal for former Yugoslavia
opined in Krstic that in order for someone to be held guilty for perpetrating the crime
of genocide, he must have intended to destroy a substantial part of the group. It stated
that the determination of when the targeted part is substantial enough to meet the
requirement may involve a number of considerations such as the numeric size of the
targeted group and its prominence within the group. If a specific part of the group is
emblematic of the overall group, or is essential to its survival, that may support a finding
that the part qualifies as substantial.33

2.1.3 THE XAROS ARE A PROTECTED GROUP UNDER THE STATUTE


37. There are four groups mentioned in Article 6 of the Rome Statute i.e. a national,
ethnical, racial or religious group. Only these four are the groups protected from crimes
against genocide. Economic, social and political were not included in this list34, because
the protected groups are broad enough to include almost any population.
38. The Xaroians are a group comprising of people categorized under the heading of
religious group, who are descendants of those people who arrived on Pangea from the
continent of Relling.

31

WILLIAM A. SCHABAS, The International Criminal Court: A Commentary on the Rome Statute 127 (Oxford
University Press, 2010). (SCHABAS).
32
The Prosecutor v. Duko Sikirica et al, IT-95-8-1, Judgment on Defense Motions to Acquit, para.
80.(Sikirica)
33
Krstic, para. 12.
34
UN Doc. A/C.6/SR.128; B. Van Shaack, The Crime of Political Genocide: Repairing the Genocide
Conventions Blind Spot, (1997) 106 Yale LJ 2259.

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39. Arguendo in Akayesu, the Trial Chamber of the International Criminal Tribunal for
Rwanda stated that, the list is an ejusdem generis list comprising all stable groups,
constituted in a permanent fashion and the membership of which is determined by
birth.35 The Xaroians, though arrived from a different continent i.e. the continent of
Relling to that of Pangea, can be classified as a stable group as in the groups
membership is determined by birth. Only people who are born to them can be classified
as Xaroians.

2.1.4 EXPLICIT MOTIVE TO DESTROY THE XAROS WAS PRESENT


40. The words as such means that there must be an explicit display of motive that is
required to prove the case of genocide. The Appeals Chamber of the International
Criminal Tribunal for Rwanda opined that the expression as such is an important
element of genocide. It clarifies the provisions requirement of a specific intent to
commit genocide. Nevertheless, it does not prohibit a conviction for genocide in a case
in which the perpetrator was also driven by other motivations that are legally irrelevant
in this context.36
41. The fact that the complete demolition of the Pekka region due to bombardments and
the destruction of the 12th century Fort of Dowhill, esteemed educational institutions,
and the forests of Winterfell all depicted the urge to seek revenge. The targeting of the
Xaroians by the Zogmain armed forces and SAF all showed that the administration in
the State of Zogmai had an explicit motive to destroy the Xaroians who were a nonBawli group.

2.2 THE CLASHES THAT OCCURRED IN ZOGMAI CONSTITUTE GENOCIDE


42. That the acts committed by President Luhar, Gen. Radam Idnar, Lt. Gen. Tyrion Pega,
Col. D. C. Keviv and Col. John Bolton amounts to the commission of the offence of
Genocide under Article 6 (a), (b) and (c) of the Rome Statute of the International
Criminal Court.

35
36

Prosecutor v. Akayesu, Case No. ICTR-96-4-T (ICTR Trial Chamber I, September 2, 1998) (Akayesu).
Prosecutor v. Niyitegaka, Case No. ICTR-96-14-A, (9 July 2004), para. 53.(Niyitegaka)

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2.2.1 KILLING MEMBERS OF THE GROUP


43. As per Article 6(a) of the Rome Statute, killing members of the group would constitute
genocide. The Elements of Crimes use the word caused death interchangeably with
that of killed. In Akayesu, the Trial Chamber of the International Criminal Tribunal
for Rwanda held that in that sense, it includes causing involuntary homicide as well as
intentional killing.37 During the state of civil war, most of the people among the
millions who lost their lives were Xaroians killed by the Zogmian armed forces.

2.2.2 CAUSING SERIOUS BODILY OR MENTAL HARM


44. Article 6(b) of the Rome Statute talks about the perpetrator causing serious bodily or
mental harm. In the Elements of Crimes, a footnote to Article 6(b) states that this
conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual
violence or inhuman or degrading treatment.38 Causing serious bodily or mental harm
does not necessarily mean that the harm is permanent and irremediable.39
45. Mutilation and murder of family members of young Xaroian children amounts to
causing of serious bodily harm and this would also cause them mental harm to a great
extent. Apart from this forced conversions, forced pregnancy would all lead serious
physical and mental harm.

2.2.3 FORCIBLY TRANSFERRING CHILDREN FROM ONE GROUP TO ANOTHER


46. Article 6(e) of the Rome Statute deals with the issue of Genocide by forcibly
transferring children from their original group to other. This act of genocide refers to
the forcible transfer of children that result in a loss of their original identity as a group.
Footnote to the relevant provision in the Elements of Crimes states that the term
forcibly is not restricted to physical force, but may include threat of force or coercion,
such as that caused by fear of violence, duress, detention, psychological oppression or
abuse of power, against such person or persons or another person, or by taking
advantage of a coercive environment. This provision holds good only in those
situations where in the person or persons who are forcibly so transferred, are under the
37

Akayesu.
VELERIE OOSTERVELD AND CHARLES GARRAWAY, The Elements of Genocide, in THE INTERNATIONAL
CRIMINAL COURT: ELEMENT OF CRIME AND RULES OF PROCEDURE AND EVIDENCE 41-56 (Roy Lee et al. (eds.),
New York, 2001).
39
Akayesu, para. 502.
38

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age of 18. The principle of knowledge-based approach finds a place here as it is stated
that the perpetrator knew or should have known that the person or persons so
transferred were under the age of 18.40
47. Young Xaro boys in civil war stricken Zogmai were forced by the Zogmain armed
forces to convert. Due to this, the population of the Xaro group went on to decline
considerably and this led to destruction, in whole or in part, of the Xaro group. All this
happened with the knowledge of the Defendants and under their command in the
present case.

ISSUE 3: KIVUOS LUHAR AND OTHERS ARE GUILTY OF CRIMES AGAINST


HUMANITY
48. It is humbly submitted before this Honble Court that, President Kivuos Luhar, Gen.
Radam Idnar, Lt. Gen. Tyrion Pega, Col. John Bolton and Col. D C Keviv are guilty of
committing the offence of crimes against humanity under Article 7 of the Rome Statute
of the International Criminal Court.
3.1 THE INGREDIENTS OF GENOCIDE ARE SATISFIED IN THE PRESENT CASE
49. The expression crimes against humanity means any of the following acts when
committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack. Here any of the following acts includes acts
such as murder, torture, rape, sexual slavery and other sexual offences, and crimes that
require effective State policy discriminations such as persecution and the crime of
apartheid.41 Clause (2) to Article 7 deals with explanations to each of the crimes
mentioned in Article 7(1). The number of trials and convictions at the ad hoc tribunals
is more for commission of crimes against humanity rather than genocide. More often
genocide is viewed as an aggravated form of crime against humanity of extermination
and persecution.42

40

Elements of Crimes, Article 6(e), Genocide by forcibly transferring children.


Rome Statute, Article 7(1).
42
SCHABAS, supra note 32 at 144.
41

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3.1.1 NEXUS BETWEEN CRIMES AGAINST HUMANITY AND ARMED CONFLICT


50. The Article 5 of the Statute of International Criminal Tribunal for Yugoslavia stated
that crimes against humanity are punishable when committed in armed conflict,
whether international or internal in character.43 Later in the same year, the Secretary
General of the UN reported that Crimes against humanity are aimed at any civilian
population and are prohibited regardless of whether they are committed in an armed
conflict, international or internal in character.44 A similar view was taken at the time
of adopting the Statute of the International Criminal Tribunal for Rwanda when the
connection with armed conflict was dropped by the Security Council.45 This stand was
later re-affirmed by the Appeals Chamber in the Tadic case that it is a settled rule of
customary international law that crimes against humanity do not require a connection
to international armed conflict.46 This seems to be the stand taken during the drafting
of Rome Statute.
51. Hence, there is no mention of want of armed conflict in Article 7 of the Rome Statute
to prosecute perpetrators for crimes against humanity. And Article 22 states that the
definition of a crime mentioned therein shall be strictly construed and shall not be
extended by analogy. Hence the Trial chambers at the International Criminal Court
cannot demand for a want of armed conflict situation to prosecute. Hence. this is the
reason why it is generally considered that crimes against humanity can be even
punished for acts perpetrated during times of peace.47
52. In the present situation, a non-international armed conflict was present in the State of
Zogmai, and the acts of destruction of villages, ancient sites, forests and educational
institutions by the Zogmain armed forces were committed in furtherance of it. Due to
the civil war situation brought in place due to the presence of this NIAC also led, to a
certain extent, to the destruction in whole or in part of the Xaroian group by the
Zogmain armed forces.

43

Statute of the International Criminal Tribunal for the former Yugoslavia, U.N. Doc. S/RES/827 (1993), annex.
Report of the Secretary-General Pursuant to Paragraph 5 of the Security Council Resolution 808 (1993), U.N.
Doc. S/25704 (1993), para. 47.
45
Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994), annex., Article 4.
(Statute of I.C.T.R.)
46
Prosecutor v. Tadic, IT-94-1-AR72 (Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction,
2 October 1995), para. 141.
47
U.N. Doc. A/CONF.183/C.1/SR.3; UN Doc. A/CONF.183/C.1/SR.4; See also SCHABAS, supra note 32 at
147.
44

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3.1.2 ATTACK TO BE WIDESPREAD OR SYSTEMATIC


53. The words widespread or systematic and civilian population in Art 7(1) has been
directly influenced by the provisions of Statute of International Criminal Tribunal for
Rwanda.48 It is disjunctive i.e. the attack can either be widespread or systematic or both.
It has been already held by the Pre-trial Chamber that it is enough if the Court is
satisfied that the attack is widespread; it need not consider it to be systematic.49 Pretrial Chamber I has decided that widespread refers to the large scale nature of the
attack, as well as the number of victims.50 It must be massive, frequent, carried out
collectively with considerable seriousness and directed against a large number of
civilians.51 It involves an attack carried over a large geographical area or an attack in
a small geographical area directed against a large number of civilians.52 A widespread
attack may be cumulative effect of a series of inhumane acts or the singular effect of
an inhumane act of extraordinary magnitude.53 The expression systematic means
the organized nature of the acts of violence and to the improbability of their random
occurrence.54
54. It was held in Kunarac et al. that the Court while hearing the cases must take into
account the number of victims and the nature of the acts.55 Apart from this the Court
must also look into the aspect as to whether there was any policy or plan pursuant to
the attack or not.
55. The commission of acts by the Zogmain armed forces involves a widespread attack i.e.
over a million people were targeted in the whole of Zogmai and it was also systematic
as in the fact that the Zogmain armed forces ever since the attack on the Pekka region
of Xaroian villages, has targeted Xaroians most of the time and has carried out attacks
on them in a systematic way.

48

Statute of I.C.T.R., 1994, Article 3.


The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 (Decision Pursuant to Article 61(7)(a) and (b)
of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009), para.
82.(Bemba)
50
Bashir, para. 81.
51
Katanga, paras 395 and 398.
52
Bemba, para. 83.
53
Prosecutor v. Dario Kordic et al., Case No.IT-95-14/2-T (26 February 2001), para. 179. (Kordic)
54
Bashir, para. 85.
55
Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23/1-A (12 June 2002), para. 95. (Kunarac)
49

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3.1.3 PRESENCE OF STATE OR ORGANIZATIONAL POLICY


56. The Elements of Crimes state that: it is understood that policy to commit such attack
requires that the State or organization actively promote or encourage such an attack
against a civilian population.56 Footnote to the same provision reads thus: A policy
which has a civilian population as the object of the attack would be implemented by
State or organizational action. Such a policy may, in exceptional circumstances, be
implemented by a deliberate failure to take action, which is consciously aimed at
encouraging such attack. The existence of such a policy cannot be inferred solely from
the absence of governmental or organizational action.57 Such a policy must be
thoroughly organized, follow a regular pattern and may be made either by groups of
persons who govern a specific territory or an organization capable of committing such
acts.58 The policy need not be formalized.59 If the attack is planned, directed or
organized, unless it is done spontaneously or in isolation, then such act will satisfy the
criterion.60
57. In the present situation, though there is no explicit mention of the policy of the State, it
is known that the Zogmain armed forces led under the orders of President Luhar had
attacks planned and directed against the Xaroians ever since the start of the civil war
situation in Zogmai. The fact that he was a ultra-conservative Bawli and ordered the
extirpation of all pro-Mavihs militancy i.e. ones who supported Prime Minister Mavihs
(who was a Xaroian himself) shows that the policy or the internal propaganda of the
State as well as the armed forces was to destroy the Xaroian group, in whole or in part.

3.1.4 ATTACK WAS DIRECTED AGAINST CIVILIAN POPULATION


58. Article 7(1) of the Rome Statute is very much similar to that of the provisions contained
in the Statutes of the ad hoc tribunals in as much it requires that the attack be directed
against any civilian population.61 The International Criminal Tribunal for the former

56

International Criminal Court, Elements of Crime 2011, ICC-ASP/1/3 at 108, U.N. Doc. PCNICC/2000/1/Add.2
(2000), Crimes against Humanity, Introduction, para. 3.(Elements of Crime)
57
Ibid.
58
Katanga, para. 398.
59
Bemba, para. 81.
60
Ibid.
61
Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc. S/RES/827 (1993), annex,
Article 5 (Statute of I.C.T.Y.); Statute of the I.C.T.R., Article 3.

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Yugoslavia stated that an attack as a course of conduct involving the commission of


acts of violence62 and such acts need not involve military attack.63 Any mistreatment to
the civilian population other than the use of armed force also constitutes an attack.64 In
Bemba, the Pre-trial Chamber has held that the mere commission of the acts referred to
in Article 7(1) of the Rome Statute is enough to constitute an attack and nothing else
is required to be proved in addition.65
59. The aggrieved must be a civilian population and not some limited and randomly
selected number of individuals.66 It has been held that the population must be
predominantly civilian in nature, although non-civilians may be present67 and may
include military personnel as well.68 Apart from this the International Criminal Tribunal
has laid down certain other requirements to prove that an attack was so directed
against a civilization population. These include the means and method used in the
attack, the status of victims, their number, the nature of the crimes committed in its
course, the resistance to the assailants at that time and such other requirements.69
60. The attacks on the Xaroian villages of the Pekka region and of people from other region,
establishes the fact that the attack was actually made against civilian population
residing in those areas. Apart from this, it is even mentioned that offences punishable
in the act were committed against a large number of people of whom the Xaroians are
in majority (as they were expressly targeted). Around a million people who had lost
their lives at the end of the civil war are mostly civilians.

3.1.5 THE DEFENDANTS HAD KNOWLEDGE OF THE ATTACK


61. The requirement of knowledge is expressly mentioned in Article 7(1) and also in the
Elements of Crimes, lacking which, a person cannot be prosecuted for crimes against
humanity.70 The Pre-trial Chamber I in Katanga stated that: the reference to
knowledge means that the perpetrator knew that there was an attack on the civilian
The Prosecutor v. Naletilic et al., Case No. IT-98-34-T(31 March 2003), para. 233.(Naletilic)
Elements of Crimes, Crimes against Humanity, Introduction, para. 3.
64
Kunarac, para. 86.
65
Bemba, para. 75.
66
Kunarac, para 90.
67
Kordic, para. 180.
68
Prosecutor v. Kupreskic et al., Case No. IT-95-16-T, (14 January 2000), para. 568. (Kupreskic)
69
Kunarac, para. 90.
70
Rome Statute, Article 30.
62
63

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population and that his or her acts or omissions to act were part of it. Therefore the
knowledge part and the perpetrators awareness can be inferred from circumstantial
evidence, such as: position of the accused in the military.71 It has been held that the
knowledge element should not be interpreted in such a way as to mean that the
perpetrator had knowledge of all the characteristics of the attack or all the precise details
of it. But the mental element in this clause shall be satisfied if the perpetrator intended
to further such an attack by his acts or omissions.72 There is no need for the prosecution
to prove that the accused knew about the details of the attack or approved of the context
in which his or her acts occurred.73
62. President Luhar who issued orders and authorized the attacks on the people knew the
consequences of his actions. Gen. Idnar, Lt. Gen. Tyrion Pega, and Col. John Bolton
were all high ranking military commanders and officials who knew of the attack on the
civilian population as well as on other in the State of Zogmai. Through their position
as commanding officers of the Zogmain armed forces and the SAF, they were in full
knowledge of their acts and the consequences of the same. As far as Col. D. C. Keviv
is concerned, he was part of the Government of Tukhda and his government promoted
the acts of the Zogmain Liberation Front who carried on attacks against the Xaroian
strongholds along the borders of Zogmai. Hence he would have the requisite knowledge
that this promotion of the said group would lead to the destruction of the Xaroian group.
63. Apart from the above requirement, there is no need to prove the presence of
discriminatory intent or motive on the part of the perpetrator for the offence of crimes
against humanity except for the crime of persecution. Persecution is the only offence
under this category that needs the prosecution to prove that the perpetrator had a
discriminatory intent or motive against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender.74

71

Katanga, para -401.


Id. at 402.
73
Kunarac, para. 102.
74
Rome Statute, Article 7(1)(h).
72

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3.2 ACTS

COMMITTED IN

ZOGMAI,

BY THE ACCUSED, CONSTITUTE

CRIMES

AGAINST

HUMANITY
The accused in the present case have committed various acts of crimes against
humanity and shall be prosecuted and indicted on the following four counts:
3.2.1. COUNT I - MURDER [ART. 7(1) (A)]
64. Murder as a crime against humanity is punishable under Article 7(1) (a) of the Rome
Statute. The formal requirements under this article is that the perpetrator must have
killed one or more persons, as part of a widespread or systematic attack directed against
a civilian population, and that he had the knowledge. A footnote to this provision in the
Elements of Crimes states that the term killed is interchangeable with the term
caused death.75 This could mean that the act of killing a person or persons may not be
intentional but can also be an involuntary homicide.
65. It has been stated already that the Zogmain armed forces under the active command of
the Defendants, committed acts of murder against civilian population mostly
comprising of Xaroians.

3.2.2 COUNT II - TORTURE [ARTS. 7(1) (F) & 7(2) (E)]


66. The crime against humanity of torture is defined as the intentional infliction of severe
pain or suffering, whether physical or mental, upon a person in the custody or under the
control of the accused; except that torture shall not include pain or suffering arising
only from, inherent in or incidental to, lawful sanctions.76 The explanation is provided
under the Elements of Crimes.77 A footnote to this provision states that there is no need
for proving any other purpose for this crime. The ad hoc tribunals have stated that, in
order to qualify as a crime against humanity of torture, the act or omission must aim at
obtaining information or confession, or at punishing, intimidating or coercing the
victim or a third person, or at discriminating, on any ground, against the victim or a
third person.78

75

Elements of Crime, Article 7(1)(a).


Rome Statute, Article. 7(2)(e).
77
Elements of Crimes, Article 7(1)(f).
78
Kunarac, pp. 142, 155.
76

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67. The acts of discriminating against the Xaroians in the present case can be seen
explicitly. The Xaros were both physically as well as mentally tortured. In some cases,
the Xaroian children were made to mutilate and murder their own family members.
This involved a lot of physical torture and mental torture to the young Xaroians.
68. The ad hoc tribunals have recognized that the offence of Rape can be included under
the definition of crime against humanity of torture. They stated that sexual violence
necessarily gives rise to severe pain and suffering, whether physical or mental and in
this way justifies its characterization of the act of torture. 79 The Xaro girls were
kidnapped and were made to cohabit with members of the Zogmain armed forces. Most
cases involved sexual violence as well.

3.2.3 COUNT III - RAPE AND OTHER SEXUAL VIOLENCE [ART. 7(1) (G)]
69. Article 7(1) (g) of the Rome Statue deals with the crimes against humanity of rape and
other sexual offences. The term other sexual offences includes sexual slavery,
enforced prostitution, forced pregnancy, enforced sterilization and other offences of
comparable gravity. These crimes are mostly gender neutral (with exception of forced
pregnancy) and they have been added in the Rome Statute to address the problems the
victimization of women in times of mass atrocities.80
70. Forced Pregnancy - It is the only offence under the Article 7(1) (g) that has been
defined. The expression forced pregnancy has been defined as the unlawful
confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic
composition of any population or carrying out other grave violations of international
law.81
71. The Xaro girls were kidnapped and were made to cohabit with the members of the
Zogmain armed forces and SAF. This led to acts of rape and other sexual offences being
committed by the armed forces personnel. The Xaro girls were made to bear Bawli
children which amounts to commission of offences of forced pregnancy. This would in

79

Kunarac, paras. 149 - 151.


FATOU BENSOUDA, Gender and Sexual Violence Under the Rome Statute, in FROM HUMAN RIGHTS TO
INTERNATIONAL CRIMINAL LAW: STUDIES IN HONOUR OF AN AFRICAN JURIST, THE LATE JUDGE LATY KAMA, 401417 (Emmanuel Decaux et. al. (eds.), Leiden/Boston, 2007).
81
Rome Statute, Article 7(2)(f).
80

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turn lead to the destruction of the Xaroian population, in whole or in part, leading to
their decline.

3.2.4 COUNT IV - PERSECUTION [ARTS. 7(1) (H) & 7(2) (G)]


72. Persecution is an offence that contemplates racial or other form of discriminatory acts
or policies that might in fact be authorized by a legal regime i.e. it is a crime of
discrimination.82 The acts of persecution at times may lead to a plan for the intentional
destruction of a group.83 Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender etc. basis is a punishable
offence.84 This offence may involve infliction of physical or mental harm, or
infringements upon individual freedom.85
73. In the present case, acts were committed against the Xaroian group who are identified
on the basis of their religion. The acts thus committed by the Zogmain armed forces
amount to Persecution as it is discriminatory in nature and targeted only a specific group
of people.

ISSUE 4: THE ACCUSED ARE INDIVIDUALLY RESPONSIBLE FOR


OMMITTING GENOCIDE AND CRIMES AGAINST HUMANITY
74. The accused persons are responsible to be prosecuted individually under Articles 25
and 28 of the Rome Statute, for the offences of genocide and crimes against humanity
that they have committed.

4.1. THE ACCUSED ARE INDIVIDUALLY RESPONSIBLE FOR CRIMES COMMITTED UNDER THE
ROME STATUTE
75. Commission of any crime that falls under the jurisdiction shall be punishable as per
Article 25. All the persons who are liable to be prosecuted by the Court, are held

82

Kupreskic, para. 621.


SCHABAS, supra note 32 at 175.
84
Rome Statute, Article 7(1)(h).
85
Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-T (29 November 2002), para. 246.(Vasiljevic)
83

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individually responsible for the crimes perpetrated.86 Liability under Article 25(3)(a) is
referred to as principle and such other liability under Article 25(3) clauses (b), (c) and
(d) are referred to as accessory liability.87
76. The Court not only takes into account the physical perpetrators of the crime but those
who are not present at the scene of the crime, despite them controlling or for being the
mastermind behind the commission of such a crime. This is because they decide as to
whether and how the offence shall be committed.88 Hence the Court can hold those who
physically commit the crime, those who control the will of physical actors and those
who control the offence.89
77. Ordering, soliciting or inducing as per Article 25(3)(b) has been held to be an act of a
person having authority, who uses it to convince another to commit an offence.90 Such
ordering of the commission is closely related to command or superior responsibility,
except for the fact that there need not be any proof of an actual order been given. 91 In
case of Article 25(3)(b), the commanders mens rea is important rather than that of the
subordinate.92 Aiding may refer to some form of physical assistance and abetting
suggests encouragement.93 If the commission is manifested in these forms, then they
might attract a lesser sentence than the forms mentioned earlier.94
78. In the present case, President Luhar and Gen. Radam Idnar shall be held individually
responsible under Article 25(3)(a) for being the mastermind behind the attacks and
controlling the SAF & its activities, respectively. President Luhar shall be additionally
liable under Article 25(3)(b) for expressly giving out Official order to the armed forces
Chief Gen. Idnar, for the suppression of civil war and for extirpation by any means
necessary. Lt. Gen. Tyrion Pega shall be held liable for acts committed by him as well
as the subordinates under him as per Articles 25(3)(a) and (b). As the military
commander or officer, he led the attacks of the SAF on civilian population. As fas as
Col. Bolton and Col. D C Keviv are considered, they shall be liable for aiding the
commission of offences i.e. Col. Bolton for training and leading the SAF and Col.

86

Rome Statute, Article 25(2).


Lubanga, at para 78.
88
Katanga, at para 485.
89
Bashir, at para 210.
90
Krstic, at para 483.
91
Kayishema et al., ICTR-95-1-T (Judgment and Sentence, 21 May 1999), paras. 223-224.
92
Blaskic (IT-95-14-A), Judgment, 29 July 2004, para. 42.
93
SCHABAS, supra note 32 at 434.
94
Sljivancanin (IT-95-13/1-A), Judgment, 5 May 2009, para. 407.
87

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Keviv for shielding the activities of ZLF who were responsible for commission of
crimes against Xaroians.

4.2. THE RESPONSIBILITY OF MILITARY COMMANDERS FOR CRIMES COMMITTED UNDER THE
ROME STATUTE
79. The Rome Statute under Article 28(a) talks about the criminal responsibility of the
military commanders. A commander is noted as one who is the person at the highest
level of command, regardless whether there are few soldiers under his or her
command.95 They are either formally or legally appointed as commanders. Such
persons shall be held responsible for crimes committed by his forces. Persons who are
not legally appointed yet carry out the role of a military commander by exercising
effective control, shall also be liable under this provision.96
80. Gen. Radam Idnar, who was the Chief of the Zogmain armed forces and who
commanded the SAF along with Lt. Gen. Tyrion Pega, Col. Bolton and Col. Keviv,
knew about the attacks and other heinous acts that were committed by their subordinates
and their forces upon the Xaroians and other people during the civil war. They have
also failed to take necessary steps to stop such atrocities.

4.3. THE OFFICIAL CAPACITY OF ACCUSED DOES NOT BAR THE JURISDICTION OF THE COURT
81. The jurisdiction of the Court extends to every person equally and the official capacity
of any person attributed to them by customary international law, does not exempt the
Court from trying and prosecuting such persons. This will also not lead for reduction
of any sentence issued on that person by the Court.97

95

Bemba, at para. 408.


Id., at para. 419.
97
Rome Statute, Article 27.
96

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PRAYER

Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Honble Court may:
DECLARE THAT IT HAS THE JURISDICTION TO HEAR THIS MATTER.
DECLARE THAT THE PRESENT PETITION IS ADMISSIBLE.
DECLARE THAT THE ACCUSED ARE GUILTY OF COMMITTING GENOCIDE.
DECLARE THAT THE ACCUSED ARE GUILTY OF COMMITTING CRIMES AGAINST HUMANITY.
And pass any other order that this Honble Court may deem fit in the interests of justice.

All of which is humbly prayed,


Counsel for the Prosecution

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