It 05 P

Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
IT_05_P
THE TRIAL CHAMBER
IN THE CASE OF
PROSECUTOR V. SUSAN WANCHUK
CHARGES AGAINST THE ACCUSED:

1. GENOCIDE,
FOR THE ATTACK AGAINST
CROSSFORDIANS
UNDER
ARTICLE 6
AND
ARTICLE 25(3)(e) OF THE ROME STATUTE;

2. CRIMES AGAINST HUMANITY FOR INFLICTING SEVERE PHYSICAL OR MENTAL PAIN OR
SUFFERING UPON THE CROSSFORDIAN POPULATION UNDER ARTICLE 7(1)(f) AND ARTICLE
28(b) OF THE STATUTE;

3. THE WAR CRIME OF TORTURE OF INHUMAN TREATMENT, UNDER ARTICLE 8(2)(a)(ii)
FOR INFLICTING SEVERE PAIN UPON THE PRISONERS AND THE PERSONS PROTECTED UNDER
THE GENEVA CONVENTION OF 1949 AND ARTICLE 25(3)(b);
4. THE WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD OF WARFARE

AGAINST THE CROSSFORDIANS BY DEPRIVING THEM OF OBJECTS INDISPENSABLE TO THEIR
SURVIVAL, INCLUDING WILLFULLY IMPENDING RELIEF SUPPLIES AS PROVIDED FOR UNDER
THE GENEVA CONVENTIONS UNDER ARTICLE 8(2)(b)(xxv) AND ARTICLE 25(3)(d) OF THE
ROME STATUTE.
WORD COUNT: 7500
WRITTEN SUBMISSIONS ON BEHALF OF THE PROSECUTION
TABLE OF CONTENTS
INDEX OF AUTHORITIES .............................................................................................................iii

STATEMENT OF FACTS .............................................................................................................. vii
ISSUES PRESENTED ................................................................................................................... xii
SUMMARY OF ARGUMENTS .....................................................................................................xiii
ARGUMENTS IN DETAIL .............................................................................................................. 1
ISSUE I : WHETHER THE ICC CAN EXERCISE ITS JURISDICTION OVER THE ACCUSED IN ORDER
TO SERVE THE PURPOSE FOR WHICH THE COURT WAS FOUNDED?
.......................................... 1
[1.1]. The Selection Process is justified in the present case and the Courts jurisdiction has been
properly triggered ...................................................................................................................... 1
[1.2]. The case is admissible before the Court for its determination ........................................ 2
ISSUE II : WHETHER THE DEFENDANT HAS COMMITTED THE CRIME OF GENOCIDE FOR THE
ATTACK AGAINST CROSSFORDIANS AND THE CRIME OF INCITEMENT OF OTHERS TO COMMIT
GENOCIDE? ................................................................................................................................ 3
[2.1]. The defendant has committed the crime of Genocide ...................................................... 3

[2.2]. The defendant has committed the crime of Incitement of Others to Commit Genocide . 7
ISSUE III : WHETHER
THE
WAR
CRIME OF TORTURE OR INHUMAN TREATMENT, UNDER
ARTICLE 8(2)(a)(ii) FOR INFLICTING PHYSICAL PAIN UPON THE PRISONERS AND THE PERSONS
PROTECTED UNDER THE GENEVA CONVENTION OF
1949
AND ARTICLE
25(3) (b)
OF THE
STATUTE HAS OCCURRED? ...................................................................................................... 10
[3.1]. The defendant inflicted severe physical or mental pain or suffering upon one or more
persons. .................................................................................................................................... 11
[3.2]. The prisoners were protected under one or more of the Geneva Conventions ............. 11
[3.3]. The defendant was aware of the factual circumstances that established that protected
status ........................................................................................................................................ 12
(i)
Written Submissions on behalf of the Prosecution
[3.4]. The conduct took place in the context of and was associated with an International Armed
Conflict .................................................................................................................................... 13
[3.5]. The defendant was aware of factual circumstances that established the existence of an
armed conflict .......................................................................................................................... 13
[3.6]. That the war crime of torture was committed against those of Crossfordian nationality or
ethnicity.................................................................................................................................... 13
[3.7]. That the war crime of inhuman treatment was committed against those who are protected
under Geneva Conventions ...................................................................................................... 14
[3.8]. The defendant bears the criminal responsibility under Article 25(3)(b) as well as the
crimes emanating from her orders ........................................................................................... 15
ISSUE IV : WHETHER THE WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD

OF WARFARE BY DEPRIVATION OF OBJECTS INDISPENSABLE TO THEIR SURVIVAL UNDER
ARTICLE 8 (2)(b)
(xxv) AND ARTICLE 25(3)(d) OF THE ROME STATUE HAS OCCURRED? ..... 16
[4.1]. The perpetrator deprived civilians of object indispensable to their survival as a method
of warfare ................................................................................................................................. 16
[4.2]. The defendant had secondary or accessorial liability in the war crime of starvation under
article 25(3)(d) ........................................................................................................................ 17
ISSUE V
: WHETHER SUSAN WANCHUK HAS COMMITTED THE CRIME AGAINST HUMANITY OF
TORTURE FOR INFLICTING PHYSICAL OR MENTAL PAIN OR SUFFERING UPON THE

CROSSFORDIANS AND WAS CRIMINALLY RESPONSIBLE FOR CRIMES COMMITTED BY HER
SUBORDINATES?
...................................................................................................................... 18
[5.1]. Crimes against humanity were committed as part of a widespread or systematic attack
directed against civilian population ........................................................................................ 19
[5.2]. There was infliction of severe physical or mental pain or suffering on the prisoners ... 20
[5.3]. Susan Wanchuk was responsible for the acts carried out by her subordinates ............. 21
PRAYER..................................................................................................................................... 25
(ii)
Index of Authorities
Judicial Precedents
Case Name
Page No.
A.G. Israel vs. Eichmann (1968) 36 ILR 18
France et al. v. Goering et al (1946) 22 IMT 203
Mugesera v. Minister of Citizenship and Immigration File No. QML-
95-00171, (Jul. 11, 1996) (Immigration and Refugee Board,

Adjudication Division)
Prosecutor v. Blaskic Case No. (IT-95-14), Judgment, (Jul. 29, 2004),
12
www.icty.org/x/cases/blaskic/acjug/en/bla-aj040729e.pdf
Prosecutor v. Brdanin Case No. IT-99-36-T, (1 September 2004)
Prosecutor v. Dario Kordic and Mario Cerkez Case No. IT-95-14/2-T,
14
(Feb 26, 2001)

Prosecutor v. Ferdinand Nahimana, et. al Case No. ICTR-99-52-T,
Judgement and Sentence, (Dec. 3, 2003)

Prosecutor v. George Anderson Rutaganda Case No. ICTR-96-3,
Judgement and Sentence, (Dec. 6, 1999)

Prosecutor v. Goran Jelisic Case No. IT-95-10-T, (Dec. 14, 1999),
www.icty.org/x/cases/jelisic/tjug/en/jel-tj991214e.pdf
Prosecutor v. Ignace Bagilishema Case No. ICTR-95-1A-T,
Judgment, (Jun. 7, 2001)

Prosecutor v. Jean Kambanda Case No. ICTR 97-23-S, Judgment and
Sentence, (Sep. 4, 1998)

Prosecutor v. Jean-Paul Akayesu Case No. ICTR-96-4, (Sep. 8, 1998)
5, 7, 8, 9
Prosecutor v. Kayishema and Ruzindana Case No. ICTR-95 1 T,
(Trial Chamber), (May 21, 1999)

Prosecutor v. Kronjelac Case No. IT-97-25-T, Judgment, (Mar. 15,
19
2002)
Prosecutor v. Kvocka et al (IT-98-30)1-T, (Feb. 28, 2005)
(iii)
18
Case Name
Page No.
Prosecutor v. Mucic et al. Case No. IT-96-21-A, Judgment, (Nov. 16,
14, 22
1998)
Prosecutor v. Naletilic and Martinovic Case No. IT-98-34 (Trial
12
Chamber), (Mar. 31, 2003)

Prosecutor v. Ruggiu Case No. ICTR-97-32-I, Judgement and
Sentence, (Jun. 1, 2000)

Prosecutor v. Simon Bikindi Case No. ICTR-01-72-T, Judgment,
(Dec. 2, 2008)
Prosecutor v. Tadic Case No. IT-94-1-AR72, Decision on the
13
Defence Motion for Interlocutory Appeal on Jurisdiction, (Oct. 2,

1995)
Prosecutor v. Tharcisse Muvunyi Case No. ICTR-2000-55A-T,
Decision
on
Tharcisse Muvunyis Motion for Judgement of
Acquittal Pursuant to Rule 98, (Oct. 13, 2005)

Prosecutor v. Thomas Lubanga Dyilo Case No. ICC-01/04-01/06-8,
1, 4
Decision on the Prosecutors Application for a Warrant of Arrest,

(Feb.
10,
2006),
https://www.icc-
cpi.int/iccdocs/doc/doc236260.PDF
Prosecutor v. Zejnil Delali Case No. IT-96-21-A, (Feb. 20, 2001),
14
www.icty.org/x/cases/mucic/acjug/en/cel-aj010220.pdf
Situation in Kenya Case No. ICC-01/09, Authorisation to open an
Investigation,
(Mar.
31,
2010),
https://www.icc-
cpi.int/en_menus/icc/situations%20and%20cases/situations/situat
ion%20icc%200109/Pages/situation%20index.aspx
The Prosecutor v. Germain Katanga Case No. ICC-01/04-01/07,

Decision
on
confirmation
of
charges,
(Sep.
26,
2008),
https://www.icc-cpi.int/iccdocs/doc/doc571253.pdf
(iv)
Case Name
Page No.
The Prosecutor v. Jean-Pierre Bemba Gombo Case No. ICC-01/05-
4, 19
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,
(Jun.
15,
2009),
https://www.icc-
cpi.int/iccdocs/doc/doc699541.pdf
The Prosecutor v. Thomas Lubanga Dyilo Case No. ICC-01/04-01/06-
1, 2, 4
1028, Decision on the confirmation of charges, (Jan. 29, 2007),

https://www.icc-cpi.int/iccdocs/doc/doc266175.PDF
United Kingdom v. Schonfeld et al (1948) 11 LRTWC 64 (British
15
Military Court)
Essays, Articles and Journals
1. Kate Kovarovic, One Spark Can Set a Fire: The Role of Intent in Incitement to Genocide,
22 FLA. J. IntL L. 28 (2010) ........................................................................................... 8
2. Richard A. Wilson, Inciting Genocide with words, 36 Michigan J. of Intl L. 281 (2015)
.............................................................................................................................................. 9
3. William H. Parks, Command Responsibility for War Crimes, 62 Military L. R 104 (1973)
............................................................................................................................................ 19
4. W.J. Fenrick, Targeting the Proportionality during the NATO Bombing Campaign against
Yugosalvia, 12 E. J. of Intl L. 489 (2001) ...................................................................... 21
Books
1. Alexander Zahar, The Oxford Companion to International Criminal Justice (Oxford

University Press 2010) ...................................................................................................... 14
2. Antonio Casesse, The Rome Statute of the ICC: A Commentary (OUP 2002) ................. 19
3. D. Frank, The International Criminal Court, Elements of Crimes and Rules of Procedure
and Evidence (2001) ........................................................................................................ 14
4. Herman Von Hebel & Darryl Robinson, The International Criminal Court- The Making of
the Rome Statute- Issues, Negotiations, Results (9th Kluwer Law International 1999) .... 16
(v)
5. M. Cherif Bassiouni, International Criminal Law: Sources, Subjects and Contents (3rd ed.
Martinus Nijhoff Publishers) .......................................................................................... 3, 6
6. Otto Triffterer, Dogmatische Untersuchungen Zur Entwicklung Des Materiellen
Volkerstrafrechts Seit Nurnberg (15th ed. 1966) .............................................................. 10
7. Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court (Beck
2008) ................................................................................................................................. 14
8. William A. Schabas, An Introduction to the International Criminal Court (4th ed.
Cambridge University Press) ............................................................................................ 17
9. William A. Schabas, The International Criminal Court: A Commentary on the Rome
Statute (Oxford University Press 2010) ............................................................................ 13
10. William Schabas, Genocide in International Law (Cambridge University Press 2000) .... 8
International Instruments
1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, 1465 U.N.T.S. 1987 (1984)
2. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, 75 U.N.T.S. 31 (1864)
3. Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked
Members of Armed Forces in the Field, 75 U.N.T.S. 85 (1949)
4. Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277
(1948)
5. Convention Relative to the Protection of Civilian Person in Time of War, 75 U.N.T.S. 287
(1949)
6. Convention Relative to the Treatment of Prisoner of War, 75 U.N.T.S. 135 (1949)
7. Hague Regulations, 187 C.T.S. 227 (1899)
8. International Convention for the Suppression of Terrorist Bombings, UN Doc.
A/RES/52/164 (1998)
9. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3
(1977)
10. Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6
May-26 July 1996, A/51/10 (1996)
11. Rome Statute, 2187 U.N.T.S. 90 (1998)
(vi)
12. Rome Statute, Elements of Crimes, ICC-ASP/1/3 (2002)
13. Summary of the Proceedings of the Preparatory Committee during the Period 25 March-12
April 1996, UN Doc. A/AC.249/1998/CRP.8 (1996)
(vii)
STATEMENT OF FACTS
[I]. GEORAPHICAL CONDITIONS AND SITUATION OF COUNTRIES
The Bay of Gandar was a crescent-shaped bay which marked the southern-end of the continent
of Gandar. The western side formed the country of Crossford and the eastern side formed the
country of Hambridge. 20 nautical miles off the southern tip of the western extreme of the Bay
of Gandar was Western Slade, and 20 nautical miles off the southern tip of its eastern extreme
was Eastern Slade. Western Slade was prominently Crossfordian whereas Eastern Slade was
prominently Hambridgian in ethnicity. The ongoing movement of the tectonic plates led to the
emergence of a new island equidistant between Western and Eastern Slade, which international
cartographers called Central Slade. It was unpopulated and uninhabitable because the nature of
the tide surges. A geological survey released in March 2011 had revealed that the mountain
that was growing under the sea to form Central Slade was likely to be the source of a significant
supply of rare earth metals, of great value in the modern economy, because of which by May
2011 small naval fleets of both Western Slade and Eastern Slade were stationed around the
Central Slade for a claim.
[II]. EASTERN SLADE AND WESTERN SLADE DECLARED WAR ON EACH

OTHER
Western Slade and Eastern Slade declared war on each other. Crossford and Hambridge did
not formally declare war, and indeed urged a diplomatic solution; but they reflagged naval
ships from their own navies as belonging to Western Slade and Eastern Slade. Both navies
targeted ships in the Bay that were heading to the other island or to the mainland on the basis
that they might contain military equipment. The action taken was not to sink ships, but to board
them, by force if necessary, and commandeer them. On various occasions, crew were forced
into life rafts and abandoned; on other occasions, the crew were taken with the ship into port
and placed into prisoner of war camps. The crew of ships was placed into life-rafts; on the first
three occasions that it was done, first by the Western Slade navy and then twice by the Eastern
Slade navy, the life-rafts were unable to deal with the adverse weather conditions and most
passengers drowned.
(viii)
[III]. CRIMES COMMITTED BY CONRAD DRAHY AND CAPTAIN TREVOR
The in charge of the Western Slade Navy, Conrad Drahy, directed that the crew of every second
ship commandeered should be cast adrift in life rafts, the aim of the policy being to cause
merchant ships to avoid journeys to Eastern Slade or Hambridge. By the end of the conflict,
which lasted for some three years, 80 crews had been treated in this way; only one lifeboat
survived. The total loss of life was 1476 people. Further, some 1304 people were held in
prisoner of war camps in Western Slade, they were treated in accordance with humanitarian
standards. One natural gas carrier ship was shadowed by a Western Slade naval vessel, but not
boarded as an Eastern Slade naval vessel was reported to be in the area. Captain Trevor Trenk
in charge of a Special Forces Unit approached the tanker and placed onto its hull a sophisticated
bomb which resulted explosion and fire which caused 57 deaths and significant property
damage. It was estimated that it would take 5 years for sea life to become edible again.
[IV]. EASTERN SLADE TOOK POWS INTO THEIR PRIVATE RUN PRISONS
WHICH WAS RUN BY ASTCO OFFICIALS AND SUSAN WANCHUK
Eastern Slade took the crew to the shores and put them as prisoners of war. Its prisoner of war
camp was run by a private prison company Astco owned by Chief Minister of Hambridge,
Andre Bouillon, which had been contracted first by the government of Hambridge and then by
the government of Eastern Slade to operate all prison facilities. However, in practice the
operations of the Astco prison facilities were not only overseen by the Astco officials but also
by the Eastern Slade Minister of Defence, Susan Wanchuk, who had been Bouillons protg.
Bouillons view was based on a view that Crossfordians were a lesser race altogether whose
role in life was limited to providing manual labour.
[V]. ATROCITIES COMMITTED AGAINST THE PRISONERS OF WAR IN

EASTERN SLADE
285,000 captured people had been placed in Astco facilities, the vast majority being of
Crossfordian nationality or ethnicity. They were all subject to a regime of forced labour, the
Astco policy being that prison had to be cost-neutral, such that inmates had to provide labour
services that equated to the cost of their imprisonment. This cost included the capital costs of
(ix)
the facilities and an agreed profit margin for Astco. The net effect of this was that each prisoner
had to work for 62 hours a week on a range of employment activities. Wanchuk personally
reviewed all details of the disciplinary regime at the prison. For every hour not worked, a
prisoner lost one meal; and for every five hours lost, each prisoner was subject to corporal
punishment, involving one stroke of the cane or more depending on the situation. She also
introduced a new rule whereby prisoners were to impose corporal punishment on each other,
with Astco guards having the power to cane any prisoner who sought to use less than proper
force when caning another prisoner. Lethal force could be used against anyone who sought to
resist. By the end of the war, a total of 187000 prisoners had died; some 40,000 died as a result
of being shot by guards when they sought to resist disciplinary action, and the rest simply
succumbed to the consequences of the beatings, malnutrition and forced work.
[VI]. PEACE TREATY AND INITIATION OF INVESTIGATION AGAINST

PERPETRATORS
The peace treaty that brought an end to the war was called- the Treaty of Lamos. As a part of
the peace treaty, which Crossford and Hambridge also ratified, it was agreed that each side
should select two people whose involvement would be referred to the International Criminal
Court. At the end of its deliberations, the four people selected by the Standing Committee to
stand trial in the International Criminal Court were- Conrad Drahy, Trevor Trenk, Andre
Bouillon and Susan Wanchuk. The Pre-Trial Chamber of the International Criminal Court, on
26th February, 2013, accepted that there were proper grounds for trial against each defendant
on the charges as proposed and thereby authorized the ICC Prosecutor to begin investigation
into the situation. In advance of this determination, Drahy, Trenk and Bouillon went
underground and had not yet been located. But Wanchuk travelled to Hague in June 2015, and
surrendered herself for trial. In doing so, she expressly preserved her right to raise any
objections to the trial based on the process whereby she was selected for trial; in the alternative
her legal representatives also argued before the Pre-Trial Chamber that her Trial be expedited.
Through a ruling delivered on 05th August, 2015 the Pre-Trial Chamber decided that her Trial
must begin. However, the same Chamber also made an observation stating that absence of other
accused could be detrimental to the Prosecutors case.
(x)
[VII]. CHARGES CONFIRMED AGAINST THE DEFENDANT
In a subsequent hearing conducted on 21st October, 2015 the final charges laid against
Wanchuk upon which the Trial shall initiate are:
a. Genocide, for the attack against Crossfordians under Article 6 and Article 25 (3) (e)
of the Rome Statute;
b. Crimes against humanity for inflicting severe physical or mental pain or suffering
upon the Crossfordian population under Article 7(1) (f) and Article 28(b) of the Statute;
c. The War Crime of torture or inhuman treatment, under Article 8(2)(a)(ii) for
inflicting physical pain upon the prisoners and the persons protected under the Geneva
Convention of 1949 and Article 25(3) (b) of the Statute;
d. The War Crime of intentionally using starvation as a method of warfare against the
Crossfordians by depriving them of objects indispensable to their survival, including
wilfully impeding relief supplies as provided for under the Geneva Conventions under
Article 8 2(b) (xxv) and Article 25(3) (d) of the Rome Statute.
[VIII]. VICTIMS REPRESENTATION IN RELATION TO KARL GRAHAM
Astco Survivors Movement (ASM) represented those who were imprisoned in the prison
facilities and survived and the families of those imprisoned who had died. The ASM was led
by Karl Graham. His ship was captured and he had spent some 20 months in the Astco prison.
He had suffered a range of indignities there, and his weight had dropped from 75 kg to under
50 kg by the time the war ended. He had operated as the de facto lawyer for those detained
there, and had regularly sought to raise complaints with staff and with Wanchuk about the
events at the prison. Karl Graham along with 50 other survivors seeks to be a victim seeking
reparations. However, for the purpose of the case, they have agreed to be represented by the
same Legal Representative. The Trial Chamber has indicated that it will hear arguments on
whether Karl Graham should be a victim party, as well as on any other matter the parties wish
to raise.
(xi)
ISSUES PRESENTED
[A].
Whether the ICC can exercise its jurisdiction over the accused in order to serve the
purpose for which the Court was founded?
[B].
Whether the defendant has committed the crime of genocide for the attack against
Crossfordians under Article 6 and the crime of incitement of others to commit genocide under
Article 25(3)(e)?
[C].
Whether the defendant has committed the crimes against humanity for inflicting severe
physical or mental pain or suffering upon the Crossfordian population under Article 7(1) (f)
and Article 28(b) of the Statute?
[D].
Whether the defendant has committed the war crime of torture or inhuman treatment,
under Article 8(2)(a)(ii) for inflicting physical pain upon the prisoners and the persons
protected under the Geneva Convention of 1949 and Article 25(3) (b) of the Statute?
[E].
Whether the defendant has committed the war crime of intentionally using starvation
as a method of warfare against the Crossfordians by depriving them of objects indispensable

to their survival, including wilfully impeding relief supplies as provided for under the Geneva
Conventions under Article 8 2(b) (xxv) and Article 25(3) (d) of the Rome Statute?
(xii)
SUMMARY OF ARGUMENTS
[ISSUE: I] WHETHER THE ICC CAN EXERCISE ITS JURISDICTION OVER THE ACCUSED IN
ORDER TO SERVE THE PURPOSE FOR WHICH THE COURT WAS FOUNDED?
The ICCs central objective is to put an end to impunity by assuring that the most serious
crimes of concern to the international community as a whole do not go unpunished. Exercising
jurisdiction over the accused is the only means through which the objective of the ICC will be
realized. The defendant has committed unimaginable atrocities that deeply shock the
conscience of humanity and the same must be punished so that a grave miscarriage of justice
does not occur. the defendant must not be permitted to raise any objections to the trial based
on the process whereby she was selected for trial as these atrocities are not only directly
imputable to the defendant but also constitute as crimes which are of concern to the
international community as a whole, due to which the process upon which the defendant was
chosen to be prosecuted becomes immaterial as she being the principal perpetrator of such
heinous would be prosecuted before the ICC anyways.
[ISSUE: II] WHETHER THE DEFENDANT HAS COMMITTED THE CRIME OF GENOCIDE FOR
THE ATTACK AGAINST CROSSFORDIANS AND THE CRIME OF INCITEMENT OF OTHERS TO
COMMIT GENOCIDE?
The Defendant has committed the crime of Genocide by way of implementing and adopting
prison policies directed towards the destruction of those who were of Crossfordian nationality
or ethnicity. It is further submitted that the speech made by the defendant has fulfilled all the
material as well as the mental elements.
In the present case, by way of the adoption of brutal prison policies directed against those of
Crossfordian ethnicity and nationality the defendant has committed the crime enshrined within
Article 6(c) of the Rome Statute. The aforementioned article prohibits slow death measures
contemplates situations where a group undergoes severe inhumane treatment due to being
placed in surrounding where the conditions ultimately cause, the destruction of that group in
whole or in part. Possible conduct includes withholding necessitates such as food, clothing,
shelter and medicine as well as de facto enslavement through forced labour, as has occurred in
the present case.
(xiii)
The Rome statute has delineated and restricted the groups against whom the crime of genocide
can be committed against to those of a national, ethnical, racial group. A national group has
been defined as one in which the people are perceived to share a legal bond based on common
citizenship coupled with reciprocity of rights and duties while an ethnical group is one whose
members share a common language and culture.
[ISSUE: III] WHETHER THE DEFENDANT HAS COMMITTED WAR CRIME OF TORTURE OR
INHUMAN TREATMENT, UNDER ARTICLE 8(2)(A)(II) FOR INFLICTING PHYSICAL PAIN UPON
THE PRISONERS AND THE PERSONS PROTECTED UNDER THE GENEVA CONVENTION OF 1949
AND ARTICLE 25(3) (B) OF THE STATUTE?
It is submitted before this Honble Court that Susan Wanchuk i.e. the defendants through her
atrocities resulted into the death of 1, 87,000 people in the prisons, out of which 40,000 died
as a result of being shot by guards when they sought to resist disciplinary action or other orders,
and rest simply succumbed to the consequences of the beatings, malnutrition and forced work
which in turn amounted to a war crime of torture or inhuman treatment in violation of
international law, specifically article 8 of the Rome Statute.
The defendant through her orders inflicted severe physical or mental pain or suffering upon
one or more persons by the way of forced labour, corporal punishment and even use of lethal
forces. The women were treated inhumanly and they were not given their privacy nor did they
have any security. They were subject to carnal brutality.
Prisoners in the prisons under Susan Wanchuk were generally constitute of civilians of
Crossford or Western Slade and prisoners of war as mentioned under Article 4 of Convention
Relative to the Treatment of Prisoner of War, 12 August 1949, so the prisoners were protected
under Geneva Conventions of 12 August 1949.
The Defendant was Defence Minister of one of the Country so she was fully aware of the nature
of armed conflict as most orders to the naval fleet emanated from her office. The Defendant
also visited prisons and she was fully aware about the status of the prisoners. All these prisoners
were captured in lieu of the war between Eastern Slade and Western Slade.
Common elements have been satisfied by the Defendants atrocities on the prisoner and she
being the Defence Minister of Eastern Slade was aware of the nature of conflict. The war crime
of torture and inhuman treatment was done in lieu of the international armed conflict by the
orders emancipated from her office. All these satisfy the common elements required for the
war crime of torture and inhuman treatment.
(xiv)
In the present case, as all the orders regarding torture and inhuman treatment of the prisoner in
Astco Prisons was emanated from the Defendants office. She was the one who orders forced
labour, corporal punishment and letting the women suffer by not providing their privacy and
by not allowing them to basic personal hygiene. All these acts are prohibited under Article
25(3)(b) if the Statute.
[ISSUE: IV] WHETHER THE DEFENDANT HAS COMMITTED WAR CRIME OF INTENTIONALLY
USING STARVATION AS A METHOD OF WARFARE AGAINST CROSSFORDIANS BY DEPRIVING
THEM OF OBJECT INDISPENSIBLE TO THEIR SURVIVAL, INCLUDING WILFULLY IMPEDING
RELIEF SUPPLIES AS PROVIDED FOR UNDER THE GENEVA CONVENTIONS UNDER ARTICLE 8
(2)(B) (XXV) AND ARTICLE 25(3)(D) OF THE ROME STATUE?

It is humbly submitted before this Honble Court that Susan Wanchuk i.e. the defendant had
adopted inhuman and cruel prison policies, by the way of exercising her position as the Defence
Minister of Eastern Slade, as a method of warfare to starve civilians and hence commit a war
crime of starvation as a method of warfare.
The defendant deprived the prisoners who were mainly civilians of Crossford or Western
Slader of object indispensible to their survival which not only include food but also basic
amenities required for survival. She directed that no prisoner would be offered 62 hours of
work per week that too the time of work was not fixed, it was on the discretion of the
Authorities of prison. She also ordered Authorities not to provide meals to the prisoner if they
have not worked thereby guaranteeing that all prisoners were subjected to food deprivation.
They were subject to carnal brutality and no men or women in any of the prison were supplied
with proper amenities for their basic survival and hygiene. All this was done in the lieu of
international armed conflict.
It is humbly submitted before this Honble Court that Susan Wanchuk i.e. the defendant
contributes to the commission of war crime of starvation by a group of persons acting with a
common purpose. The contribution of the defendant was intentional to commit the war crime
of starvation with further aim of wiping out the entire race of Crossfordian ethnicity.
The defendant was a protge of Andre Bouillon and she was influenced by his thoughts a lot
and she was a co-perpetrator in the war crime of starvation with further aim of wiping out the
entire race of Crossford as it was the purpose of Bouillon. She contributed to the crime as the
orders related to working of the prisons, which include the process of distribution of food on
(xv)
the basis of work done by the prisoners without considering the condition of the prisoners,
emanated from her office with the common purpose of depleting the Crossfordian race.
[ISSUE: V] WHETHER SUSAN WANCHUK HAS COMMITTED THE CRIME AGAINST HUMANITY
OF TORTURE FOR INFLICTING SEVERE PHYSICAL OR MENTAL PAIN OR SUFFERING UPON THE
CROSSFORDIAN POPULATION AND WAS CRIMINALLY RESPONSIBLE FOR THE ACTS OF HER
SUBORDINATES?
In order to establish the commission of Crime against Humanity of Torture, it is essential to

show that the acts so committed were a widespread or systematic attack directed against a
civilian population, a requirement that is easily met by the conduct of the defendant. The
civilian target in this case were the Crossfordian Nationals, whom Susan Wanchuk used to
capture as Prisoner of War, and after that they were forced to go through regimes of forced
labour, also physical and mental pain was inflicted on them whereby strict measures like
electrocution, water boarding, etc. were used for petty request by the prisoners such as making
contact with their families. All the Elements of Crime of Torture were satisfied by the conduct
of Susan Wanchuk.
Susan Wanchuk was Second in the Chain-of-command of the Astco facilities, a position
because of which she used to personally take care of the administrative functioning of the
prisons. A requirement to establish Superior Responsibility under Article 28(b) is that the
Superior knew that the Subordinates were about to commit such crime, a requirement that takes
care of itself in the case at hand since it was Susan Wanchuk who in the first place was asking
her subordinates to commit such crimes and also since she was the administrative face of the
prisons, being in such a position, she used to practically order the guards to commit crimes, a
facet showing that all the crimes concerned activities were within the effective control of Susan
Wanchuk.
(xvi)
Arguments in Detail
ISSUE I : WHETHER THE ICC CAN EXERCISE ITS JURISDICTION OVER THE ACCUSED IN ORDER TO
SERVE THE PURPOSE FOR WHICH THE COURT WAS FOUNDED?
1. The ICCs central objective is to put an end to impunity by assuring that the most serious
crimes of concern to the international community as a whole do not go unpunished1.
Exercising jurisdiction over the accused is the only means through which the objective of the
ICC will be realized. The defendant has committed unimaginable atrocities that deeply shock
the conscience of humanity2 and the same must be punished so that a grave miscarriage of
justice does not occur.
[1.1] THE SELECTION PROCESS IS JUSTIFIED IN THE PRESENT CASE AND THE
COURTS JURISDICTION HAS BEEN PROPERLY TRIGGERED
2. The deterrent effect of the ICC is greatest if it is focused only on the highest-ranking
perpetrators who played a major role in the crimes, i.e. individuals who can most effectively
prevent or stop the commission of such crimes.3 It is submitted before this Court, that the
defendant has committed heinous crimes ranging from genocide, CAH, incitement to genocide
and two counts of war crimes, all which meet the gravity threshold. The death toll of her prison
inmates astonishingly amount to 187,000 which are attributable to the barbaric policies she had
adopted inflicting immeasurable misery upon those of Crossfordain nationality or ethnicity.
3. In light of the same, the defendant must not be permitted to raise any objections to the trial
based on the process whereby she was selected for trial as these atrocities are not only directly
imputable to the defendant but also constitute as crimes which are of concern to the
international community as a whole, due to which the process upon which the defendant was
chosen to be prosecuted becomes immaterial as she being the principal perpetrator of such
heinous would be prosecuted before the ICC anyways. Additional consideration must also be
placed on the fact that the pre-trail chamber had already confirmed the charges against the
defendant4, which has the effect of demonstrating that the Prosecutor supported each specific
Rome Statute, 2187 U.N.T.S. 90 (1998), Preamble.

Id.
3
Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-8, Decision on the Prosecutors Application
for a Warrant of Arrest, (Feb. 10, 2006), https://www.icc-cpi.int/iccdocs/doc/doc236260.PDF.
4
Moot Proposition 14.
2
(1)
charge with sufficient evidence to establish substantial grounds to believe that the person
committed the crime charged.5
4. In accordance with the personal jurisdiction of the ICC, the ICC exercises jurisdiction over
those crimes committed by nationals of a State party who are accused of a crime, regardless of
where the crime was committed.6 Furthermore, the crimes committed by the defendant falls
within the purview of the ICC and the ICC can exercise its jurisdiction over such crimes as it
is empowered to do so under Article 5.
[1.2] THE CASE IS ADMISSIBLE BEFORE THE COURT FOR ITS DETERMINATION
5. Referring to Article 17, only those cases are inadmissible if the case is not of sufficient
gravity7, the case is being investigated or prosecuted by a state which has jurisdiction over it,
the case has been investigated by a State having jurisdiction over it and has decided not to
prosecute the accused or when the person has already been tried for the conduct which is the
subject of the complaint,. The present case does not fall within the ambit of any of the
abovementioned situations as the defendant is neither being prosecuted nor investigated by any
state having the jurisdiction over her crimes, nor has the defendant been tried for her criminal
conduct.
6. The gravity threshold is also satisfied in the present case as the case has provoked social
alarm due to conduct that was systematic and large scale, as was necessitated in Lubanga.8
Furthermore, a case is said to be of sufficient gravity if it captured those who may bear the
greatest responsibility for the alleged crimes committed.9 The defendant has casued
widespread atrocities and killings resulting in the deaths of over 187,000 prisoners and hence
the defendant bears the greatest responsibility along with Andre Boullion for the countless
deaths and extensive carnage which has occurred.
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 61(7).

Rome Statute, 2187 U.N.T.S. 90 (1998), art. 12(2)(b).
7
8
Supra note 3.
9
Situation in Kenya, Case No. ICC-01/09, Authorisation to open an Investigation, (Mar. 31, 2010),
https://www.icccpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/Pages/situation%20index.
aspx.
6
(2)
ISSUE II : WHETHER THE DEFENDANT HAS COMMITTED THE CRIME OF GENOCIDE FOR THE
ATTACK AGAINST CROSSFORDIANS AND THE CRIME OF INCITEMENT OF OTHERS TO COMMIT
GENOCIDE?
7. The Defendant has committed the crime of Genocide by way of implementing and adopting
prison policies directed towards the destruction of those who were of Crossfordian nationality
or ethnicity. [2.1] It is further submitted that the speech made by the defendant has fulfilled all
the material as well as the mental elements and hence must be convicted for the same. [2.2]
[2.1] THE DEFENDANT HAS COMMITTED THE CRIME OF GENOCIDE

8. Susan Wanchuk i.e. the defendant had adopted archaic prison policies, by way of exercising
her position as the Eastern Slade Defence Minister, for the destruction of those who were either
of Crossfordian nationality or ethnicity and has hence committed the crime of Genocide.
Genocide has been criminalized under Article 6. The acts as criminalized under Article 6, must
be committed with the intent to destroy in whole, or in part a national, ethnical, racial or
religious group as such.10
9. By way of the adoption of brutal prison policies directed against those of Crossfordian
ethnicity and nationality the defendant has committed the crime enshrined within Article 6(c)
of the Rome Statute.11 The aforementioned article prohibits slow death measures contemplates
situations where a group undergoes severe inhumane treatment due to being placed in
surrounding where the conditions ultimately cause, the destruction of that group in whole or in
part.12 Possible conduct includes withholding necessitates such as food, clothing, shelter and
medicine as well as de facto enslavement through forced labour13, as has occurred in the present
case.14
10
SCHABAS, supra note 9.

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole
or in part.
12
M. Cherif Bassiouni, International Criminal Law: Sources, Subjects and Contents 372 (3d ed. Martinus Nijhoff
Publishers).
13
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95 1 T, (Trial Chamber), (May 21, 1999).
14
Policies to wipe out the entire race of Crossfordians was adopted by the defendant, wherein every prisoner was
directed to work 62 hours a week in a range of activities, prisoners could also impose corporal punishment on
each other and that lethal force could be used against anyone who sought to resist. A rule was introduced wherein
for every hour not worked, a prisoner lost one meal; and for every five hours lost each prisoner was subject to
corporal punishment, involving one stroke of the cane or more depending upon the situation. A vast majority of
prisoners died simply due to the consequences of beatings, malnutrition and forced work.
11
(3)
[ARGUENDO]: Even if it is not accepted that the crime of genocide has occurred, the
defendant can be convicted for the crime against humanity of torture15 based on the same facts.
It is possible for a person to have the specific intent for genocide and also act pursuant to a
policy which may satisfy the intent requirement for CAH while carrying out acts that satisfy
the material elements of both crimes.16
[2.1.1]. That the defendant acted through the Astco Guards who in turn were following her
directives
10. Even though the defendant did not carry out any of the atrocities by herself physically,
Article 25(3)(a), third alternative, envisions crimes committed through another person
regardless of whether the other person is criminally responsible.17 Principals to a crime are not
limited to those who physically carry out the objective elements of the crime, but also include
those who, in spite of being removed from the scene of the crime, control or mastermind its
commission, because they decide whether and how the offence will be committed.18
11. The two objective elements of co-perpetration, i.e. that the suspect must be part of a
common plan or agreement with one or more persons and that the suspect and the other coperpetrator must carry out essential contributions in a coordinated manner which result in the
fulfilment of the material elements of the crime19 have been satisfied in the present case. By
acting in conjunction with others20, i.e. the Astco guards, there existed a policy to destroy those
who were of Crossfordian nationality or ethnicity and that the realization of the defendants
policy materialized through the Astco guards contributions21 and hence the defendant shall be
responsible and liable for the crime of genocide as a co-perpetrator.
14. [ARGUENDO]: Even if it is assumed that the defendant has not acted through the Astco
guards, the defendant as an accessory shall be responsible for the crime of genocide through
the provisions of the first alternative of Article 25(3)(b) as it was through her orders in
furtherance of her prison policy which caused great atrocities against those of Crossfordian
15
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 7(f).

Supra note 3.
17
SCHABAS, supra note 9, at 429.
18
The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Decision on confirmation of charges, (Sep.
26, 2008), https://www.icc-cpi.int/iccdocs/doc/doc571253.pdf.
19
The 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, (Jun. 15, 2009),
https://www.icc-cpi.int/iccdocs/doc/doc699541.pdf.
20
A.G. Israel vs. Eichmann, (1968) 36 I.L.R. 18.
21
Moot Proposition, Annexure 1.
16
(4)
nationality or ethnicity. The ICTR in Akayesu22 defined ordering as the act of a person in a
position of authority uses the position to convince another to commit an offence. Lastly,
inchoate ad accessory liability offences are implicit within the framework of the crime and
attract no lessor penalty than the actual and full offence.23
[2.1.2]. That the crime of Genocide was committed against those of Crossfordian nationality
or ethnicity
15. The Rome statute has delineated and restricted the groups against whom the crime of
genocide can be committed against to those of a national, ethnical, racial or religious group. A
national group has been defined as one in which the people are perceived to share a legal bond
based on common citizenship coupled with reciprocity of rights and duties24 while an ethnical
group is one whose members share a common language and culture; or, a group which
distinguishes itself, as such (self-identification); or, a group identified as such by others,
including perpetrators of the crimes (identification by others).25 To conclude, those of
Crossfordian nationality or of Crossfordian ethnicity would fall within the purview of those
groups which are protected within Article 6 of the Rome Statute.
[2.1.3]. That the defendant possessed the specific intent to cause genocide
16. In the case at hand, it was the defendants intent to wipe out26 those of Crossfordian
nationality or ethnicity and to crush them in mass number and had implemented such policies
ensuring the same. As the policies were forwarded by the defendant herself, she had knowledge
of the circumstances of the crime.27 Also, the intent to destroy the aforementioned groups were
present and the same can be seen through the employment of the words conveying her intent
of wiping Crossfordians out as mentioned within Annexure II. Hence, the defendant committed
the crime of genocide to destroy such protected groups with the element of dolus specialis.28
Dolus specialis can be understood to refer to the specific intention to destroy more than a small
22
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4, (Sep. 8, 1998).

Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, (Dec. 14, 1999), www.icty.org/x/cases/jelisic/tjug/en/jeltj991214e.pdf.
24
Supra note 26.
25
Supra note 16.
26
27
28
Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-S, Judgment and Sentence, (Sep. 4, 1998).
23
(5)
number of individuals who are members of a group.29 The specific intent can be inferred from
the words and deeds and may be demonstrated by a pattern of purposeful action.30
[2.1.4]. That the defendant acted with the intent to destroy the group in part
17. The prison policies were adopted by the defendant with the view to deliberately suffocate
the Crossfordian inmates in the Astco-run prisons and the evidence to the same can be seen as
the number of captured people placed in Astco facilities were 285,000 out of which 187,000
died by the end of the war.31 It is not necessary for the perpetrators to have eliminated the entire
group for there to be an act of genocide; it will suffice if only a section of the targeted group is
destroyed.32 It is sufficient for the perpetrator to aim at exterminating a substantial part of the
group33 and hence intent to destroy a numerically significant part of the group is sufficient. The
greater the number of victims, the more logical the conclusion that the intent was to destroy
the group in whole or in part.34
[2.2] THE DEFENDANT HAS COMMITTED THE CRIME OF INCITEMENT OF

OTHERS TO COMMIT GENOCIDE
18. It is humbly submitted before this Court that the defendant in the present case, that is
Susan Wanchuk, has committed the abominable crime of public incitement of genocide as
prohibited within Article 25(3)(e) of the Rome Statue and Article III(c) of the Genocide
Convention.35 The speech made by the defendant, which was subsequently telecasted to all TV
channels in Eastern Slade36 is tantamount to direct and public incitement of others to commit
genocide.[2.2.1] It is further submitted that the speech abovementioned was made with the
intent so as to directly and publicly incite others to commit the crime of genocide. [2.2.2]
[2.2.1]. That the speech made is tantamount to direct and public incitement
19. In the present case, as the speech was telecasted to all channels in Eastern Slade, direct
and public incitement of others to commit genocide has occurred. Public and direct incitement
is criminalized by the Rome Statute in Article 25(3)(e) and constitutes of two essential elements
29
Summary of the Proceedings of the Preparatory Committee during the Period 25 March-12 April 1996, UN
Doc. A/AC.249/1998/CRP.8 (1996), page 2.
30
Supra note 16.
31
32
BASSIOUNI, supra note 15, at 71.
33
Supra note 16.
34
SCHABAS, supra note 9, at 104.
35
Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277 (1948), art. III(c).
36
(6)
i.e. the speech must be made to the public and must be direct. In Akayesu37, the Rwanda
Tribunal identified the two aforementioned essential elements of incitement, and held that the
same must assume a direct form and specifically provoke another to engage in a criminal act.
Incitement to commit an offence, involves instigating another, directly and publicly, to commit
an offence.38
20. According to the International Law Commission, incitement to commit genocide requires
communicating the call for criminal action to a number of individuals in a public place or to
members of the general public at large. The Commission further elaborated by stating that the
incitement could occur in a public place or by technological means of mass communication,
such as radio or television.39 Therefore, speeches containing a series of double entendres and
implied references which are clearly understandable to the audience and the same should be
viewed in reference to the socio-political context with which the speech was made.40 The
Rwanda Tribunal in Akayesu, clarified that the direct element of incitement should be viewed
in the light of its cultural and linguistic content. Therefore, implicit incitement can be
construed as direct and the same shall be considered on a case-to-case basis, in light of the
context, culture and specific circumstances and by focusing mainly on the issue of whether the
persons for whom the message was intended immediately grasped the implication thereof.41
21. The ICTR, in the Media Case42, reiterated that it was the potential to cause genocide that
makes it incitement and highlighted the importance that the context makes in which the
utterances in question were made for determining whether they constituted incitement or not.
Factors on which the Courts determination would lie upon also include when and where the
speech was made and who the perpetrator was speaking to.43
[2.2.2]. That the speeches were made with Genocidal Intent

22. Presently, the speeches made by the defendant were made with the intention to crush and
wipe out the entire race of Crossfordians through the soldiers present on the ground 44 and the
37
Supra note 26.

Prosecutor v. George Anderson Rutaganda, Case No. ICTR-96-3, Judgement and Sentence, (Dec. 6, 1999).
39
Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May-26 July 1996,
A/51/10 (1996), page 26,
40
Mugesera v. Minister of Citizenship and Immigration, File No. QML-95-00171, (Jul. 11, 1996) (Immigration
and Refugee Board, Adjudication Division).
41
Supra note 26.
42
Prosecutor v. Ferdinand Nahimana, et. al, Case No. ICTR-99-52-T, Judgement and Sentence, (Dec. 3, 2003).
43
Kate Kovarovic, One Spark Can Set a Fire: The Role of Intent in Incitement to Genocide, 22 FLA. J. IntL L.
28 (2010).
44
38
(7)
same can be understood with respect to the context in which the speech was made. The speech
was telecasted and directed to the soldiers fuelling them to crush and wipe out the
Crossfordian population during the conflict between the sides involved and the same serves as
evidence of the intention of the inciter to commit Genocide against the Crossfordian
population. It is the Prosecutions averment that it was the defendants intention to cause
genocide by inciting the soldiers on the ground to crush those individuals of Crossfordian
nationality or ethnicity and hence the defendant possessed the required dolus specialis.
23. The mens rea required for the crime of direct and public incitement to commit genocide
lies in the intent to directly prompt or provoke another to commit genocide45 and must also
have the specific intent to destroy, in whole or in part, a protected group.46 Furthermore, it is
not necessary that such incitement must only be in unequivocal terms47 and the actual language
used in the speech has been also cited as an indicator of intent.48 To conclude, in the present
case, the defendant had a desire to create, by her actions, a particular state of mind necessary
to commit genocide in the minds of the persons she was so engaging, as was necessitated by
the Akayesu decision.
[2.2.3]. That the crime of incitement to commit Genocide is an inchoate in nature

24. It is submitted that whether the inciting speech materialized into crimes or acts of actual
genocide by Hambradian soldiers should not bear upon the Court as the crime of incitement to
commit genocide is inchoate in nature. In Prosecutor vs. Ruggiu49, the ICTR stressed that
incitement to genocide was inchoate in nature. Demonstrating that a speech, broadcast, or
publication represented a public and direct call to exterminate a protected group ought to be
sufficient to establish criminal responsibility for the same.50 Direct and public incitement is by
its nature inchoate or incomplete, and hence it is not required to prove a causal link with the
crime committed and that the prosecution need not make proof of any result. 51
25. Therefore, to conclude due to the inchoate nature of the crime of incitement to commit
genocide the prosecutor need not to show whether the inciting speech resulted or materialized
into the actual crime of genocide and due to both crimes being distinct from each other, the
45
Supra note 26.

Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-T, Decision on Tharcisse Muvunyis Motion for
Judgement of Acquittal Pursuant to Rule 98, (Oct. 13, 2005).
47
France et al. v. Goering et al., (1946) 22 I.M.T. 203, p. 548.
48
Supra note 51.
49
Prosecutor v. Ruggiu, Case No. ICTR-97-32-I, Judgement and Sentence, (Jun. 1, 2000).
50
Richard A. Wilson, Inciting Genocide with words, 36 Michigan J. of Intl L. 281 (2015)
51
William Schabas, Genocide in International Law 277 (Cambridge University Press 2000).
46
(8)
very act of inciting Hambradian soldiers to commit genocide against those of Crossfordian
nationality or ethnicity is punishable.
ISSUE III : WHETHER THE WAR CRIME OF TORTURE OR INHUMAN TREATMENT, UNDER
ARTICLE 8(2)(a)(ii) FOR INFLICTING PHYSICAL PAIN UPON THE PRISONERS AND THE PERSONS
PROTECTED UNDER THE GENEVA CONVENTION OF 1949 AND ARTICLE 25(3)
(b) OF THE STATUTE
HAS OCCURRED?
26. It is submitted before this Honble Court that Susan Wanchuk i.e. the defendants through
her atrocities resulted into the death of 1,87,000 people in the prisons, out of which 40,000 died
as a result of being shot by guards when they sought to resist disciplinary action or other orders,
and rest simply succumbed to the consequences of the beatings, malnutrition and forced work52
which in turn amounted to a war crime of torture or inhuman treatment in violation of
international law, specifically article 8 of the Rome Statute.
27. War crimes as listed in Art. 8(2)(a) of the Statue cover grave breaches of Geneva
Conventions of 12 August 1949, namely, any of the acts like willful killing or torture or under
the provisions of the relevant Geneva Convention.53
28. The Rome Statute specifically criminalizes attacks against civilians, providing that the
"Court shall have jurisdiction in respect of war crimes in particular when committed as part of
a plan or policy of a large-scale commission of such crimes".54
29. Article 8(2)(a)(ii) of the Rome Statute defines the war crime of torture and inhuman
treatment. Pursuant to article 9, the Court has promulgated an "Elements of Crimes" addendum
to the Rome Statute to assist with the interpretation of articles 6, 7, and 8. The addendum
provides six elements which help to define the war crime of torture and five elements which
help to define the war crime of inhuman treatment out of which five elements are common to
both crimes. The common elements include:
a)
The perpetrator inflicted severe physical or mental pain or suffering upon one
or more persons.
b)
Such person or persons were protected under one or more of the Geneva
Convention of 1949.
52

Rome Statute, 2187 U.N.T.S. 90 (1998), art. 8.
54
53
(9)
c)
The perpetrator was aware of the factual circumstances that established that
protected status.
d)
The conduct took place in the context of and was associated with an
international armed conflict.

e)
The perpetrator was aware of factual circumstances that established the
existence of an armed conflict.
[3.1] THE DEFENDANT INFLICTED SEVERE PHYSICAL OR MENTAL PAIN OR

SUFFERING UPON ONE OR MORE PERSONS
31. Torture and inhuman treatment is infliction of severe physical or mental pain. This
definition corresponds to Article 1(1) of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment of 10 December 1984.55
32. The defendant through her orders inflicted severe physical or mental pain or suffering
upon one or more persons by the way of forced labour, corporal punishment and even use of
lethal forces56. The women were treated inhumanly and they were not given their privacy nor
did they have any security. They were subject to carnal brutality. No women in any of the
prisons were supplied with proper amenities for maintaining basic hygiene. All these suffering
were direct infliction of physical and mental pain on the prisoners.
[3.2] THE PRISONERS WERE PROTECTED UNDER ONE OR MORE OF THE GENEVA
CONVENTIONS
33. The Geneva Conventions were intended to protect the victims of war. Each of four
Geneva Conventions concerns a specific category of victim: prisoners of war (Convention
III),57 and civilians (Convention IV)58.
34. Protected persons are exposed to specific damages in armed conflict; at least the most
important rights, such as dignity, life and bodily integrity, are to remain inviolate.59
35. Article 4(1) of Geneva Convention IV defines protected persons as those who, at a given
moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in
55
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S.
1987 (1984), page 112.
56
Moot Proposition, 10.
57
Convention Relative to the Treatment of Prisoner of War, 75 U.N.T.S. 135 (1949), arts. 4, 13, 16, 20.
58
Convention Relative to the Protection of Civilian Person in Time of War, 75 U.N.T.S. 287 (1949), arts. 8, 44,
45, 73, 75, 77.
59
Otta Triffterer, Dogmatische Untersuchungen Zur Entwicklung Des Materiellen Volkerstrafrechts Seit
Nurnberg 28 (15th ed. 1966).
(10)
the hands of a Party to the Conflict or Occupying Power of which they are not
nationals.60Prisoners in the prisons under Susan Wanchuk were generally constitute of civilians
of Crossford or Western Slade and shipwrecked members of armed forces at sea which are
protected under Geneva Conventions.
[3.3] THE DEFENDANT WAS AWARE OF THE FACTUAL CIRCUMSTANCES THAT

ESTABLISHED THAT PROTECTED STATUS
36. As the policies were forwarded by the defendant herself, she had knowledge of the
circumstances of the crime.61 The Defendant was Defence Minister of one of the Country so
she was fully aware of the nature of armed conflict as most orders to the naval fleet emanated
from her office. The Defendant also visited prisons and she was fully aware about the status of
the prisoners. She knew the prisoners were crew of the supply ship which the Eastern Slade
army has captured hence they were protected under Geneva Conventions but she treated them
with torture and inhuman treatment.
[3.4] THE CONDUCT TOOK PLACE IN THE CONTEXT OF AND WAS

ASSOCIATED WITH AN INTERNATIONAL ARMED CONFLICT
37. The offence must be committed, inter alia in the context of an international armed
conflict.62 Clearly, an armed conflict is international in nature if it takes place between two or
more States.63
38. All these prisoners were captured in lieu of the war between Eastern Slade and Western
Slade. As these two are independent countries so it can be concluded that it was an international
armed conflict.
[3.5] THE DEFENDANT WAS AWARE OF FACTUAL CIRCUMSTANCES THAT

ESTABLISHED THE EXISTENCE OF AN ARMED CONFLICT
39. The existence of an international armed conflict is an element of prosecution for war
crimes of torture and inhuman treatment. In a seminal declaration, the Appeals Chamber of the
ICTY stated that an armed conflict exists whenever there is a resort to armed force between
States. International humanitarian law applies from the initiation of such armed conflicts and
60
Prosecutor
v.
Blaskic,
Case
No.
(IT-95-14),
Judgment,
(Jul.
www.icty.org/x/cases/blaskic/acjug/en/bla-aj040729e.pdf.
61
Rome Statute, 2187 U.N.T.S. 90 (1998), art 30(3).
62
Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34 (Trial Chamber), (Mar. 31, 2003).
63
Supra note 27.
(11)
29,
2004),
extends beyond the cessation of hostilities untilin the case of internal conflicts, a peaceful
settlement is reached.64
There can be no question that common elements have been satisfied by the Defendants
atrocities on the prisoner and she being the Defence Minister of Eastern Slade was aware of
the nature of conflict. The war crime of torture and inhuman treatment was done in lieu of the
international armed conflict by the orders emancipated from her office.
[3.6] THAT THE WAR CRIME OF TORTURE WAS COMMITTED AGAINST THOSE OF
CROSSFORDIAN NATIONALITY OR ETHNICITY
40. For the application of provisions of torture as war crime in the Statue, torture is defined
by the Elements of Crime as infliction of severe physical or mental pain or suffering upon one
or more persons for purposes such as obtaining information or a confession, punishment,
intimidation or coercion or for any reason based on discrimination of any kind.65
41. 285,000 captured people had been placed in Astco facilities, the vast majority being of
Crossfordian nationality or ethnicity. They were all subject to a regime of forced labour. Each
prisoner had to work for 62 hours a week on a range of employment activities. Wanchuk on
her part, made sure that she personally reviewed all details of the disciplinary regime at the
prison. In particular, for every hour not worked, a prisoner lost one meal; and for every five
hour lost, each prisoner was subject to corporal punishment on each other, with Astco guards
having the power to cane any prisoner who sought to use less than proper force when caning
another prison and lethal force could be used against anyone who sought to resist. Wanchuk
also ordered to beat those who disobeyed her orders in the prison.
42. All this sort of torture stemmed the pain or suffering for punishment, intimidation or
coercion based on the discrimination that they belong to Crossfordian nationality or ethnicity.
[3.7] THAT THE WAR CRIME OF INHUMAN TREATMENT WAS COMMITTED

AGAINST THOSE WHO ARE PROTECTED UNDER GENEVA CONVENTIONS
43. It is humbly submitted before this Honble Court that the execution and implementation
of the Defendants order inflicted severe physical and mental pain and suffering on the
prisoners which was inhumane in nature and was a war crime of inhuman treatment under Art.
8(2)(a)(ii) of the Statute. All the elements required for inhuman treatment has been satisfied
64
Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, (Oct. 2, 1995).
65
Rome Statute, Elements of Crimes, ICC-ASP/1/3 (2002), art. 8(2)(a)(ii).
(12)
above. ICTY has used a wider definition determining that inhuman treatment is that which
causes serious mental or physical suffering or injury or constitutes a serious attack on human
dignity.66
44.She ordered that the women prisoners should be kept into Panopticon. This place was so
transparent that a person standing on the ground floor could see the person on fourth floor,
clearly. Furthermore the Defendant ordered that every cell should have CCTV camera. The
women were not given their privacy. This was a serious attack on human dignity. This
treatment toward the prisoners was inhuman.
[3.8] THE DEFENDANT BEARS THE CRIMINAL RESPONSIBILITY UNDER ARTICLE

25(3)(b) AS WELL AS THE CRIMES EMANATING FROM HER ORDER
46. It is humbly submitted before this Court that the defendant in the present case, that is
Susan Wanchuk, committed the abominable crime of ordering the commission of war crime a
crime as prohibited within Article 25(3)(b) of the Rome Statue.
47. The International Criminal Court is concerned with trying and punishing individuals, not
States. Crime against international law are committed by men, not by abstract entities, and
only by punishing individuals who commit such crimes can the provisions of international law
be enforced, wrote the Nuremberg Tribunal in 1946, same is reflected in Article 25 of the
Rome Statue. Early rulings by Pre-Trial Chambers have endorsed a theoretical paradigm called
co-perpetration, by which the leaders who control and direct crimes committed through
organizations are in fact deemed principal perpetrators. 67
48. Virtually all criminal law system punishes those who participate in criminal offences, even
if they are not the principal offenders.68
49. In the present case, as all the orders regarding torture and inhuman treatment of the
prisoner in Astco Prisons was emanated from the Defendants office. She was the one who
orders forced labour, corporal punishment and letting the women suffer by not providing their
privacy and by not allowing them to basic personal hygiene. All these acts are prohibited under
Article 25(3)(b) if the Statute.
Prosecutor v. Zejnil Delali, Case No. IT-96-21-A, (Feb. 20, 2001), www.icty.org/x/cases/mucic/acjug/en/celaj010220.pdf.
67
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute 436 (Oxford
University Press 2010).
68
United Kingdom v. Schonfeld et al., (1948) 11 LRTWC 64 (British Military Court).
66
(13)
50. An order may be explicit or implicit, and its existence can be proven through
circumstantial evidence.69 It need not to be given directly to the person who carries out the act,
because what important is the commanders mens rea, not that of the subordinate.70 According
to the Appeals Chamber of the ICTY ordering with awareness has to be regarded as accepting
that crime.71
51. Therefore, to conclude due to the nature of ordering, there need not to show the mens rea
of the subordinates, the very act of ordering torture and inhuman treatment against those of
Crossfordian nationality or ethnicity is punishable.
ISSUE IV : WHETHER THE WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD OF

WARFARE BY DEPRIVATION OF OBJECTS INDISPENSABLE TO THEIR SURVIVAL UNDER ARTICLE 8
(2)(b) (xxv) AND ARTICLE 25(3)(d) OF THE ROME STATUE HAS OCCURRED?
52. It is humbly submitted before this Honble Court that Susan Wanchuk i.e. the defendant
had adopted inhuman and cruel prison policies, by the way of exercising her position as the
Defence Minister of Eastern Slade, as a method of warfare to starve civilians and hence commit
a war crime of starvation as a method of warfare. War crime of starvation as a method of
warfare is punishable under Article 8(2) (b) (xxv) of the Rome Statute. The prohibited conduct
of this war crime is defined in the elements as the perpetrator deprived civilians of objects
indispensible to their survival. Here the deprivation is not just of food or nourishment but also
the more general meaning of deprivation or insufficient supply of some essential commodity,
of something necessary to live.
[4.1] THE PERPETRATOR DEPRIVED CIVILIANS OF OBJECT INDISPENSABLE TO

THEIR SURVIVAL AS A METHOD OF WARFARE
53. Article 8(2)(b)(xxv) of the Rome Statute covers starvation of civilians as a method of
waging war. The rule is based on Article 54 of Additional Protocol I and reflects customary
international law.72 This provision of the Statute also covers the withholding of indispensable
objects, such as medicines, blankets or clothing.73
69
Supra note 74.

Id.
71
Supra note 74.
72
Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court 234 (Beck 2008).
73
D. Frank, The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence 87
(2001).
70
(14)
54. The defendant deprived the prisoners who were mainly civilians of Crossford or Western
Slader of object indispensable to their survival which not only include food but also basic
amenities required for survival. She directed that prisoner would be offered 62 hours of work
per week that too the time of work was not fixed, it was on the discretion of the Authorities of
prison. She also ordered Authorities not to provide meals to the prisoner if they have not
worked thereby guaranteeing that all prisoners were subjected to food deprivation. They were
subject to carnal brutality and no men or women in any of the prison were supplied with proper
amenities for their basic survival and hygiene. All this was done in the lieu of international
armed conflict between Eastern Slade and Western Slade in which civilians got caught up, and
all these sort of inhuman treatment of starvation was done on the orders of Susan Wanchuk
with the common purpose of harming the general population of Eastern Slade as a method of
warfare.
[4.2] THE DEFENDANT HAD SECONDARY OR ACCESSORIAL LIABILITY IN THE

WAR CRIME OF STARVATION UNDER ARTICLE 25(3)(d)
55. It is humbly submitted before this Honble Court that Susan Wanchuk i.e. the defendant
contributes to the commission of war crime of starvation by a group of persons acting with a
common purpose. The contribution of the defendant was intentional to commit the war crime
of starvation with further aim of wiping out the entire race of Crossfordian ethnicity74 and all
this was done under the jurisdiction of the Honble Court.
56. This form of secondary or accessorial liability is provided in Article 25(3)(d) of the
Statute. It imposes liability where the offender in any other way contributes to the commission
or attempted commission of such crime by a group of persons acting with a common purpose.
The contribution need involve intent to commit the specific crime, as long as it is made with
the aim of furthering the criminal activity or criminal purpose of the group, where such activity
or purpose involves the commission of a crime within the jurisdiction of the Honble Court.
57. The Statute does not confine itself to providing for jurisdiction over those persons who
plan, instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning,
preparation or execution. Whoever contributes to the commission of crimes by the group of
persons or some members of the group, in execution of a common criminal purpose, may be
held to be criminally liable, subject to certain conditions.75
74
75

Supra note 79.
(15)
58. It has been described as a residual form of accessory liability which makes it possible to
criminalize those contributors to a crime which cannot be characterized as ordering, soliciting,
inducing, aiding, abetting or assisting.76
59. The jurisprudence on this issue is clear that the existence of a common purpose amounts
to or involves the commission of a crime.77 The common purpose need not be previously
arranged or formulated; it may materialize extemporaneously.78
60. The defendant was a protge of Andre Bouillon and she was influenced by his thoughts
a lot and she was a co-perpetrator in the war crime of starvation with further aim of wiping out
the entire race of Crossford as it was the purpose of Bouillon. She contributed to the crime as
the orders related to working of the prisons, which include the process of distribution of food
on the basis of work done by the prisoners without considering the condition of the prisoners,
emanated from her office with the common purpose of depleting the Crossfordian race. It is
finally submitted that Susan Wanchuk intentionally contributed to the commission of the
above-mentioned crime, knowing that her contribution would further the common plan carried
out by Andre Bouillon, which consisted in the wiping out the entire Crossfordian race.
ISSUE V : WHETHER SUSAN WANCHUK HAS COMMITTED THE CRIME AGAINST HUMANITY OF
TORTURE FOR INFLICTING PHYSICAL OR MENTAL PAIN OR SUFFERING UPON THE CROSSFORDIANS
AND WAS CRIMINALLY RESPONSIBLE FOR CRIMES COMMITTED BY HER SUBORDINATES?
61. It is humbly submitted before this Honble Court that the general elements of Article 7
elevate an ordinary crime or an inhumane conduct to a crime against humanity. 79 Crimes
against humanity pursuant to the ICC Statute are any of the enumerated acts in Article 7 when
committed as part of a widespread or systematic attack directed against any civilian population
with knowledge of the attack.80
76
Supra note 3.
Prosecutor v. Kvocka et al., IT-98-30)1-T, (Feb. 28, 2005).
78
Supra note 27.
79
Herman Von Hebel & Darryl Robinson, The International Criminal Court- The Making of the Rome StatuteIssues, Negotiations, Results 56 (9th Kluwer Law International 1999).
80
77
(16)
[5.1] CRIMES AGAINST HUMANITY WERE COMMITTED AS PART OF A
WIDESPREAD OR SYSTEMATIC ATTACK DIRECTED AGAINST CIVILIAN
POPULATION
62. It is submitted that the basic connotation of the word widespread as used in 7(1) of the
Rome Statute implies large scale nature of the attack and the number of targeted persons81 and
as it can be seen in the present case that due to the nature of the war that was going on, the
targeted persons are automatically the persons belonging to the enemy and for this very reason
the pool of targeted persons becomes invariably large that includes nationals of two countries
and hence the nature of such crimes becomes widespread. Furthermore with regard to the
requirement of the attack to be directed against a civilian population, the pre-trial chamber
set out that it is the commission of the acts referred to in Article 7(1) that constitute the attack
and beside commission of the acts, no additional requirement for the existence of an attack
should be proven82 and also since many civilians were forced into Astco Prisons, this prima
facie gives it the dimension to give it colour of an attack against civilian population.
[5.2] THERE WAS INFLICTION OF SEVERE PHYSICAL OR MENTAL PAIN OR

SUFFERING UPON THE PRISONERS
64. It is humbly submitted that when assessing the seriousness of the acts charges as torture,
the trial chamber must take into account all the circumstances of the case, including the nature
and context of the infliction of pain, the premeditation and institutionalisation of the illtreatment, the physical condition of the victim, the manner and method used, and the position
of inferiority of the victim. The extent that an individual has been mistreated over a prolonged
period of time will also become relevant.83
65. As expressed by the defendant the original intention of the defendant was to wipe out the
entire race of Crossfordians thereafter which 285,000 prisoners were placed in Astco facilities
out of which, majority were from Crossford. Defendant by way of exercising her position as
the Second in Command84 of the Prison facilities of Astco personally reviewed all details of
the disciplinary regime at the prison85 had subjected the people of Crossfordian Nationality in
the facilities of Astco to regime of severe physical and mental pain whereby the prisoners were
81
Supra note 22.

The 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, (Jun. 15, 2009),
https://www.icc-cpi.int/iccdocs/doc/doc699541.pdf.
83
Prosecutor v. Kronjelac, Case No. IT-97-25-T, Judgment, (Mar. 15, 2002).
84
85
82
(17)
forced to provide labour for upto 62 hours a week86 and apart from that prisoners were also
subject to fiendish methods of torture whereby they lost meals for hours not worked, for every
five hours not worked corporal punishment was also imposed upon the prisoners and
furthermore the defendant also made sure that the work hours of the prisoners were limited to
50 hours87 so that they necessarily had to loose meals and go through corporal punishment for
non-compliance to the mandatory rule of working 62 hours a week, also by a new rule prisoners
were to impose corporal punishment on one another and if such corporal injury were not upto
a certain mark then the guards used to inflict corporal punishment and they were free to do
whatever they wanted as a result of which by the end of the war around 40,000 prisoners died
as a result of being shot dead by the guards. Although torture often causes permanent damage
to health of its victims, permanent injury however is not a requirement for the crime.88
66. Defendant in the name of ensuring efficient reformative construction imposed barbaric
prison policies which included methods like Prisoners being condemned to six (6) hours of
fatigue duties for every act of non-obedience and further no individual prisoner was allowed to
contact any family member and upon repeated requests punitive measures were adopted which
included measures such as water boarding, electrocution and/or induced debilitation.89
[5.3] INFLICTION WAS ON THE PERSON(S) IN CONTROL OF DEFENDANT

67. All the said acts of infliction of mental and physical pain were laid upon the prisoners in
the Astco Prison facilities and the defendant being Second-in-command of the Astco Prison
facilities used to formulate the policies for the prisoners which prima facie tells us that such
infliction of physical and mental pain was upon such persons that were under direct control of.
[5.4] DEFENDANT HAD THE METAL ELEMENT TO CARRY OUT TORTURE

68. The use of the word intentional90 in the statute intends at the presence of a mental element
in the Crime against humanity of torture. Pre-Trial Chamber II considered that it fell within the
unless otherwise provided exception to the general rule, set out in Article 30 of the Rome
Statute. The Chamber said: it is not necessary to demonstrate that the perpetrator knew that
the harm inflicted was severe. This interpretation is consistent with paragraph 4 of General
Introduction to the Elements of Crimes. To prove the mental element of torture, it is therefore
86

Moot Proposition, Annexure 2
88
Supra note 95.
89
Supra note 107.
90
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 7(2)(e).
87
(18)
sufficient that the perpetrator intended the conduct and that the victim endured severe pain or
suffering.91
69. Now since all the elements of torture have been proved it is imperative but to say that the
defendant Defendant was responsible for the Crime against Humanity of torture.
[5.5] SUSAN WANCHUK WAS RESPONSIBLE FOR THE ACTS CARRIED OUT BY
HER SUBORDINATES
70. It is humbly submitted before this Honble Court that article 28 of the Rome Statute sets
out the parameters for how the ICC shall apply the doctrine of superior responsibility under
which, in specific circumstances, military commanders, persons effectively acting as military
commanders and certain other superiors are held accountable for the crimes undertaken by their
subordinates, or perhaps more accurately, with regard to the crimes of their subordinates.92
71. Superior Responsibility adds to other grounds of criminal responsibility93 which are to be
found elsewhere in the Statute. These other grounds of criminal responsibility are specifically
listed in Article 25. Superior responsibility is thus from e.g. ordering under Article 25 which
requires the superior to have actively contributed to the crime in question.94 With regards to
the accountability under Article 28, there need not be proof of any order or action undertaken
by the superior him or herself, rather under this doctrine the superior incurs responsibility on
the basis of his or her inaction, or more accurately for the failure or omission to prevent or
punish the actions of the perpetrators.95
72. Article 28(b) of the Rome Statute specifically caters to non-military or quasi-military
superior responsibility. It has been established that term superior as used in Statutes of ad hoc
Tribunals as well as in Article 86(2) of Additional Protocols from 1977, is broad enough not
only to encompass strict military commanders in a de jure command position, but also de facto
supervisors.96 A subsequent conclusion drawn hereof was that effective control could exist in
both civilian and military structures.97 Later however the Appeals Chamber clarified that the
doctrine was applicable to civilian superiors98 and also the findings of the Celibici Case99 that
91
Supra note 100.

William H. Parks, Command Responsibility for War Crimes, 62 Military L. R 104 (1973).
93
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 28.
94
Supra note 100.
95
Antonio Casesse, The Rome Statute of the ICC: A Commentary 850 (OUP 2002).
96
Prosecutor v. Mucic et al., Case No. IT-96-21-A, Judgment, (Nov. 16, 1998).
97
Id.
98
Supra note 37.
99
Supra note 3.
92
(19)
it was sufficient that the civilian superior exercise a degree of control over their subordinates
which is similar to that of military commanders.100
[5.6] SUSAN WANCHUCK KNEW THAT THE SUBORDINATES WERE ABOUT TO

COMMIT CRIMES
73. It is further submitted that Article 28(b)(i) imposes a mens rea requirement for nonmilitary superiors to be of the same as that for military superiors and in the present case the
defendant i.e. Susan Wanchuck in her official capacity was the Minister of Defence for Eastern
Slade, Second in the Chain of Command of Astco Facilities and was also directly administering
5 Private Prisons of Astco so it was all but her direct orders according to which all the prisons
were administered. Wanchuck on her part made sure that she personally reviewed all details of
the disciplinary regime at the prison.101 It was under her orders that the prisoners were subjected
to a regime of forced labour, non-compliance resulted in corporal punishment and the
defendant also brought about a new rule by which prisoners were supposed to inflict corporal
punishment on each102 other explicitly ordered the guards to let the women suffer. 103 Her
policies were harsh to the extent that she had ordered prisoners to be water-boarded,
electrocuted and/or forced them through induced debilitation104 if the prisoners insisted on
communicating their families.
74. What 28(b)(i) mandates is that a superior will be responsible for the acts of the
subordinates if he knew that his subordinates are committing or are about to commit a crime,
a requirement which is essentially met in the present case because here the defendant not only
knew that crimes are about to be committed by her subordinates but she was the only one who
authorised such orders and administered them throughout the privately owned prisons because
of which 187,000 people died in a span of 2 years. This not only goes on to prove the required
mental element of the superior but also puts forward the fact that though the crimes were
committed by the subordinates of the defendant, it was in-fact the defendant who in the first
place ordered those crimes to be committed.
100
Supra note 37.

102
103
Id.
104
101
(20)
[5.7] THE CRIMES CONCERNED ACTIVITIES WERE WITHIN THE EFFECTIVE
RESPONSIBILITY AND CONTROL OF THE SUSAN WANCHUCK
75. It is humbly submitted that the application and interpretation of Article 28(b)(ii) of the
Rome Statute confers an additional requirement under the doctrine of non-military superior
responsibility. Subordinates within the meaning of Article 28(b) are said to be only within the
effective responsibility and control of the superior while they are at work or while engaged in
work related activities.105
76. Now in the present case work related activities pertain to the administration of the Astco
Prison facilities wherein as a non-military superior Susan Wanchuck used to lay down the
policies and the Circuit-in-charges along with the guards, acting as the subordinates of
Wanchuck used to administer such policies throughout the prison which fell completely within
the ambit of work of the subordinates.
77. The last necessity to prove the responsibility of a non-military commander is that the
superior failed to take all necessary and reasonable measures within his or her power to prevent
their commission106 a requirement that is also essentially met in the present case because here
the superior not only failed to take necessary measure to stop the crimes committed by her
subordinates but she was the one who by her directives ordered those crimes to be committed
in the first place.
78. So since it has been established that Susan Wanchuck as the superior exercised sufficient
control over her subordinates and it was her direct orders that were responsible for the crimes
that were being committed by her subordinates let alone the superior taking measures to stop
the crimes being committed by the subordinates therefore the defendant is liable for the crimes
being committed by her subordinates.
105
W.J. Fenrick, Targeting the Proportionality during the NATO Bombing Campaign against Yugosalvia, 12 E.
J. of Intl L. 489 (2001).
106
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 28(b)(iii).
(21)
PRAYER
Wherefore, it is prayed, in light of the issues raised, arguments advanced, and authorities cited,
that his Honble Court may be pleased to declare that:
a) The ICC has jurisdiction over the particular case and therefore the same is admissible
and that the selection process was proper;
b) Susan Wanchuck has committed Genocide for the Attack against Crossfordians under
Article 6 and Article 25(3)(e) of the Rome Statute;
c) Susan Wanchuk is guilty for committing Crime against Humanity of Torture against the
Crossfordian People under Article 7(1)(f) and 28(b) of the Statute;
d) Susan Wanchuck is guilty for committing the War Crime of Torture or Inhuman
Treatment under Article 8(2)(a)(ii) for inflicting severe pain upon the prisoners and the
persons protected under the Geneva Convention of 1949 and Article 25(3)(b);
e) Susan Wanchuck is guilty for committing the War Crime of intentionally using
starvation as a method of warfare against the Crossfordians by depriving them of
objects indispensable to their survival, including willfully impending relief supplies as
provided for under the Geneva Conventions under Article 8(2)(b)(xxv) and Article
25(3)(d) of the Rome Statute.
And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests
of Justice, Fairness, Equity and Good Conscience.
For this Act of Kindness, the Prosecutor Shall Duty Bound Forever Pray.
Sd/.
(Counsel for the Prosecution)
(22)

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Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016

THE TRIAL CHAMBER

CHARGES AGAINST THE ACCUSED:

FOR THE ATTACK AGAINST

ARTICLE 25(3)(e) OF THE ROME STATUTE;

28(b) OF THE STATUTE;

4. THE WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD OF WARFARE

WRITTEN SUBMISSIONS ON BEHALF OF THE PROSECUTION

INDEX OF AUTHORITIES .............................................................................................................iii

[2.1]. The defendant has committed the crime of Genocide ...................................................... 3

ISSUE III : WHETHER

CRIME OF TORTURE OR INHUMAN TREATMENT, UNDER

STATUTE HAS OCCURRED? ...................................................................................................... 10

ISSUE IV : WHETHER THE WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD

: WHETHER SUSAN WANCHUK HAS COMMITTED THE CRIME AGAINST HUMANITY OF

TORTURE FOR INFLICTING PHYSICAL OR MENTAL PAIN OR SUFFERING UPON THE

A.G. Israel vs. Eichmann (1968) 36 ILR 18

France et al. v. Goering et al (1946) 22 IMT 203

Mugesera v. Minister of Citizenship and Immigration File No. QML-

95-00171, (Jul. 11, 1996) (Immigration and Refugee Board,

Prosecutor v. Dario Kordic and Mario Cerkez Case No. IT-95-14/2-T,

(Feb 26, 2001)

Judgement and Sentence, (Dec. 3, 2003)

Judgement and Sentence, (Dec. 6, 1999)

Judgment, (Jun. 7, 2001)

Sentence, (Sep. 4, 1998)

Prosecutor v. Kayishema and Ruzindana Case No. ICTR-95 1 T,

(Trial Chamber), (May 21, 1999)

Prosecutor v. Mucic et al. Case No. IT-96-21-A, Judgment, (Nov. 16,

Chamber), (Mar. 31, 2003)

Sentence, (Jun. 1, 2000)

Defence Motion for Interlocutory Appeal on Jurisdiction, (Oct. 2,

Tharcisse Muvunyis Motion for Judgement of

Acquittal Pursuant to Rule 98, (Oct. 13, 2005)

Decision on the Prosecutors Application for a Warrant of Arrest,

The Prosecutor v. Germain Katanga Case No. ICC-01/04-01/07,

The 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

1028, Decision on the confirmation of charges, (Jan. 29, 2007),

Essays, Articles and Journals

1. Alexander Zahar, The Oxford Companion to International Criminal Justice (Oxford

1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

[I]. GEORAPHICAL CONDITIONS AND SITUATION OF COUNTRIES

[II]. EASTERN SLADE AND WESTERN SLADE DECLARED WAR ON EACH

[V]. ATROCITIES COMMITTED AGAINST THE PRISONERS OF WAR IN

[VI]. PEACE TREATY AND INITIATION OF INVESTIGATION AGAINST

[VIII]. VICTIMS REPRESENTATION IN RELATION TO KARL GRAHAM

purpose for which the Court was founded?

as a method of warfare against the Crossfordians by depriving them of objects indispensable

(2)(B) (XXV) AND ARTICLE 25(3)(D) OF THE ROME STATUE?

In order to establish the commission of Crime against Humanity of Torture, it is essential to

Rome Statute, 2187 U.N.T.S. 90 (1998), Preamble.

Rome Statute, 2187 U.N.T.S. 90 (1998), art. 61(7).

[2.1] THE DEFENDANT HAS COMMITTED THE CRIME OF GENOCIDE

SCHABAS, supra note 9.

Rome Statute, 2187 U.N.T.S. 90 (1998), art. 7(f).

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4, (Sep. 8, 1998).

[2.2] THE DEFENDANT HAS COMMITTED THE CRIME OF INCITEMENT OF

[2.2.2]. That the speeches were made with Genocidal Intent

Supra note 26.

[2.2.3]. That the crime of incitement to commit Genocide is an inchoate in nature

Supra note 26.

(b) OF THE STATUTE