Team 8 Defense Memorial International Criminal Court Intra Moot Competition March 2011

Original: English

No: ICC

Before:

International Criminal Court Moot Competition Panel

SITUATION IN THE STATE OF BANCHU IN THE CASE OF THE PROSECUTOR v. BANCHA

Team No. 8

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ..................................................................................................................... i INDEX OF AUTHORITIES ....................................................................... Error! Bookmark not defined. STATEMENT OF JURISDICTION ....................................................................................................... iiv STATEMENT OF FACTS ......................................................................................................................... v ISSUES RAISED........................................................................................................................................ vi SUMMARY OF ARGUMENTS .............................................................................................................. vii BODY OF PLEADINGS ............................................................................................................................ 1 A. ICC cannot exercise its jurisdiction over the case. .......................................................................... 1 B. In light of the protest made by the state of Bancha, the case is not admissible before the ICC. . 4 C. The conflict has not been internationalized owing to the participation of volunteers from Gogolistan. ............................................................................................................................................... 7 D. The arrest and subsequent transfer of Mr. Bancha to ICC is illegal. ........................................... 9 E. The accused is not guilty of following crimes: ............................................................................... 12 PRAYER .................................................................................................................................................... xii

LIST OF ABBREVIATIONS Art. Article (unless otherwise noted, Art. Designates articles of the Rome Statue) Chamber Facts Genocide Convection Pre-Trial Chamber Facts and Procedural History International Convection on the Prevention and Punishment of the Crime of Genocide, Dec 9, 1948, 78 U.N.T.S. 277, 280. ICC ICJ ICRC ICTR International Criminal Court International Court of Justice International Committee of Red Cross International Criminal Tribunal of Rwanda ICTY International Criminal Tribunal of Former Yugoslavia ILC No. The Statue The Rules UDHR International Law Commission Number The Rome Statue Rules of Procedures and Evidence Universal Declaration of Human Rights UN United Nations

INDEX OF AUTHORITIES Cases

Arrest Warrant of 1 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, Para.51 .......................................................................................................................................... 11

ICTY, Prosecutor v. Haradinaj, Case No. IT-04-84-T, Judgement (Trial Chamber), 3 April 2008, para 49. ............................................................................................................................................................. 8

ICTY, Prosecutor v. Limaj, Case No. IT-03-66-T, Judgement (Trial Chamber), 30 November 2005, para 85. ............................................................................................................................................................. 7

ICTY, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 70. .............................................................................................................................. 7

International Court of Justice, SS Lotus (France v. Turkey), PCIJ 1927 Series A, No. 10, 7 September 1927, [Cited as Lotus Case] ...................................................................................................................... 5

Israel, Eichman, Supreme Court, judgement of 29 May 1962, English translation in 36 ILR. .................... 5

Lubanga, Judgement on the Appeal against the decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19 (2) (a), Case No: ICC-01/04-01/06, 14 December 2006. ...................... 9

Prosecutor v. Blaskic, IT-95-14 Judgement, 3 March 2000 (hereinafter The Blaskic Judgement) Declaration of Judge Shahabuddeen. ........................................................................................................ 9

Prosecutor v. Nahimana et al., (Case No. ICTR-99-52-T) 3 December 2003 ............................................. 2

Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecutors Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Public Redacted Version, Case No: ICC-02/05-01/09, 4 March 2009. .............................................................................................................................................. 9

Rivard v. United States, US Court of Appeal judgment of 375 F ed 882 (5th Cir. 1967) ............................ 5

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The Lands of Palmas Arbitration, (Netherlands v. United States), 1928, 2, RIAA 829. .............................. 5

Other Authorities
Antonio Cassese, The international criminal Court: the making of the Rome statute issues, negotiations, results, edited by Roy S. Lee; in cooperation with The Project on International Courts and Tribunals, published by The Hague: Kluwer Law International, c1999. at 606 (hereafter Antonio Cassese). ...... 3

I.C.J. Reports 1957, p. 53/ WIPO, Case No. D2004-0535, 2004.................................................................. 6

ICJ Reports, 1955, pp.4, 23; 22 ILR, pp. 349,360. at 725 ............................................................................ 3

ICRC, How is the term Armed Conflict defined in international humanitarian law? , Opinion Paper, March 2008, p.3.. ...................................................................................................................................... 7

ICRC, Protection of Victims of Non-International Armed Conflicts, Document presented at the Conference of government experts on the reaffirmation and development of international humanitarian law applicable in armed conflicts, Vol. V, Geneva, 24 May-12June 1971, p.79..8

ICTY, Order granting leave for withdrawal of charges against Govedarica, Gruban, Janjic, Kostic,Paspalj, Pavlic, Popovic, Predojevic, Savic, Babic and Spaonja issued by Judge Riad on 8 May 1998. ................................................................................................................................................. 6

J. Delbruck & R. Wolfrum, Volkerrecht, Part I/3, 1145,( 2nd edition, 2002) ................................................ 1

Rome Statute
Art. 12. ....................................................................................................................................................... 1,3 Art 12 (2). ..................................................................................................................................................... 4 Article 12 (2) (b) ........................................................................................................................................... 1 Art.12 (3) ................................................................................................................................................... 1,2 Art. 58 (1)(a) ................................................................................................................................................. 9 article 89(1) ................................................................................................................................................... 1 article 93 ....................................................................................................................................................... 1 article 109 (1) ................................................................................................................................................ 1 article 117...................................................................................................................................................... 1

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STATEMENT OF JURISDICTION The Prosecutor has approached the Honorable International Criminal Court under Article 5 read with Article 13 (b) of the Rome Statue. The Defendant respectfully objects the jurisdiction of the Court as it does not have the jurisdiction to entertain the instant case.

iv

STATEMENT OF FACTS 1. Copeegua was an ancient country inhabiting three chief tribes namely, Gogo, Bancha and Zawal. There has been occasional violence between Banchas and Zawals as there relations have been apathetic. When the Imperial Autarchy of Xanadu was in power, Copeegua was made subject to all treaties by requisite constitutional procedure including the Rome Treaty in 2004. Bancha especially opposed signature to the treaty and signified that Banchu would never have signed the treaty. Massive violence broke out and Copeegua was partitioned into Gogolistan and Bancha in May 2008, with the two states housing their etymological tribes. Both the states agreed to give Zawals the same rights as the majority tribes in these countries. 2. Bancha became the head of the state in Banchu and faced much opposition from certain people. Mr. Bancha addressed the nation and revealed that his secret service had come to know of deadly conspiracy aimed against him by certain anti nationals belonging to Zawalis tribe. The police rounded up many Zawals on the basis of suspicion. Keechu Zawal, the leader of Zawals, under the banner of Zawal National Party, launched guerilla warfare to strike against the officials. Mr. Bancha emphatically declared that he had no mercy for those who betray the cause of their great nation. The army offensive was laden with brutalities, a fact that has never been officially accepted. The Bancha Herald reported that the Bancha soldiers have caused terrible bloodshed in all the Zawal villages they have searched while hunting for the members of ZNP. 3. Meanwhile, the rebels started receiving liberal aid from Zawals in Gogolistan. Many volunteers enrolled themselves with ZNP after crossing over into Banchu. The PM of Gogolistan advocated the cause their cause but never gave any official support to them. Bancha stated that the situation brooks no further delay and extreme steps need to be taken immediately. The Army conducted a raid against the ZNP and during it the ancient Calypso temple, a world heritage site was badly damaged by bombing. The worsening situation caught the attention of Security Council. So, it passed a resolution and referred the situation to ICC. Meanwhile, Bancha was abducted from Banchu and was found unconscious in Gogolistan where the accused was taken into custody by the police. The pre-trial chamber issued an arrest warrant against Mr. Bancha as requested by the prosecutor under Article 58 of the Rome Statute. The new government dismissed arguments of Bancha being guilty but ensured lawful investigation if any complaint comes up.
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ISSUES RAISED

1. Whether the ICC has the jurisdiction to try the case against Bancha? 2. Whether in light of the protest made by the state of Bancha, the case is admissible before the ICC? 3. Whether the conflict has been internationalized owing to the participation of volunteers from Gogolistan? 4. Whether the arrest and subsequent transfer of Mr. Bancha to ICC is legal? 5. Whether the Accused is guilty of following crimes: (i) Crime of Genocide under Article 6 (a) of the Rome Statue. (ii) Crime against Humanity under Article 7(1) (g) (Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy or any other form of Sexual Violence of comparable gravity) enlisted in the Rome Statue. (iii) War Crimes under Article 8(2) (b) (ix) (Intentionally Directing Attacks against Buildings Dedicated to Religion) and Article 8(2) (b) (xxiii) (Utilizing Presence of Civilians or other Protected Persons to render certain points, areas or military forces immune from military operations) enlisted in the Rome Statue.

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SUMMARY OF ARGUMENTS 1. ICC cannot exercise its jurisdiction over the case. The Court cannot exercise its jurisdiction over the case. The jurisdiction ratio temporis has not been established since Bancha have opposed the treaty and also not accepted the jurisdiction by not making any declaration lodged with Registrar as to accept the exercise of jurisdiction by the Court to the Crime in the question. There was no intention for full destruction of Zawals population and the act has not reached the standard of genocide as prescribed in Article 6. The Prosecutor failed to meet the requirements of the preconditions to enable the ICC to exercise its jurisdiction referred to Art. 12 (2), since: (i) the territorial State of the crime committed here is not a State Party to the Statute; (ii) the state of nationality of the accused is not a State Party to the Statute either. 2. In light of the protest made by the state of Bancha, the case is not admissible before the ICC. The ICC is impeded to analyze the merits of the case due to the principle of complementarity, and second, the gravity of the acts perpetrated does not justify the resource to the Court. The ICC is barred from exercising its jurisdiction over a crime, whenever a national Court asserts its jurisdiction over the same crime and under its national law the Banchu has jurisdiction; and it never showed its unwillingness and its inability of adjudging. Banchu has shown interest in prosecuting the Bancha. The burden of proof of demonstrating that Banchu has not conducted an investigation or is unwilling or unable of conducting a fair trial is upon those alleging it. Banchu state claimed that it is the violation of their sovereignty when Gogolistan surrender Banchu to the ICC as the state itself wanted to carry out the investigation against Bancha. The Court should, therefore, dismiss the case on the grounds of admissibility, and return Bancha to Banchu state so that domestic courts can trial him. There was no sufficient gravity to justify further action by the Court.

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3. The conflict has not been internationalized owing to the participation of volunteers from Gogolistan. The participation of volunteers from Gogolistan is not governmental in nature. They were not authorized by the government of Gogolistan to do so. The participants in this internal armed conflict did not act on the behalf of Gogolistan state. The threshold of intensity of violence in this case is such that it is an internal armed conflict. There were only situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of similar nature. The volunteers come from Gogolistan did not have any level of organization. They were volunteers who did not have any command structure. The volunteers cannot be regarded as agents of Gogolistan because their government did not support their act by any means. Therefore their actions cannot constitute an international armed conflict but constitute an internal conflict. 4. The arrest and subsequent transfer of Mr. Bancha to ICC is illegal. There are no reasonable grounds to believe that Head of State Bancha has committed genocide, crimes against humanity and war crimes. Article 58 (1) (a) remains unsatisfied. There is no necessity to arrest him pursuant to Art. 58 (1) (b). Given the nature of his role as Head of State, the accused did not pose a risk of absconding. There was plainly nothing the accused could have done to obstruct or endanger the investigation of Court proceedings. The Chambers authorization of the arrest of the Accused was not only unlawful but politically insensitive and, had the crime actually taken place, would have been counter-productive. Bancha should be immune from the arrest by Gogolistan police. According to customary international law that Court was obliged to grant the Accused diplomatic and state immunity. Since the Court has not obtained the cooperation of Banchu, it could not request Gogolistan for surrender or assistance if this will request Gogolistan to breach its obligations under international law with respect to diplomatic immunity of a person of Banchu.

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5. The accused is not guilty of crime of Genocide under Article 6 (a), crime against Humanity under Article 7(1) (g), war Crimes under Article 8(2) (b) (ix) and Article 8(2) (b) (xxiii) enlisted in the Rome Statue. There are elements that show the lack of genocidal intent. Bancha Army was only against those people who betray the cause of their great nation. They were only against the rebels not all Zawals. The accused is not guilty of crime against Humanity under Article 7(1) (g). The Leader Bancha had no knowledge of the attack as never ordered to carry out such actions. There was no systematic and widespread attack carried out by Banchu army. The point regarding direction against a civilian population also fails to designate these actions as crimes. The Defendant did not possess the requisite mens rea necessary to designate their actions as crimes under Article 7 (1) (g).

The Bancha army would not be held liable under Article 8 (2) (b) (ix) as there was no intention to directly attack against buildings dedicated to religion. The temple was not damaged intentionally but it was during the course of the raid, the temple structure was badly damaged by bombing. The Bancha Army has never utilized the presence of civilians or other protected persons to render certain points. Have they utilized the presence of civilians, they would have never entrenched themselves in the forests at a distance of 500 meters from these buildings and then fired mortar shells on the Rebels. They had no intention to utilize the presence of these civilians.

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BODY OF PLEADINGS A. ICC cannot exercise its jurisdiction over the case. a) The Jurisdiction ratio temporis is not established according to Art. 11. It is in dispute that the jurisdiction ratio temporis1 has been established since the alleged crime took place in 2009 and Bancha have opposed the treaty and signified that the accused would never have signed the treaty and the Bancha homeland and no Bancha will ever be considered to be bound by the same. Even after the formation of Banchu as a separate state it was never made subject to all treaties by requisite constitutional procedure including the Rome Treaty in 2004. Moreover, Banchu has not accepted the jurisdiction by making any declaration lodged with Registrar as to accept the exercise of jurisdiction by the Court to the crime in the question.2 With regard to the jurisdictional basis ratione personae, the ICC-Statue makes reference solely to the well recognised and uncontroversial active personality principle when it states that the Court may only exercise its jurisdiction if the alleged perpetrator of the crime is a national of a State party or a national of a state which has accepted the jurisdiction of the Court.3

The ICC-Statue does not impose an obligation for a non-state to co-operate with the Court according to articles 86 et seq. of the ICC-Statue.4 A number of other existing jurisdictional bases are not included in the ICC-Statue, namely the universality principle and passive personality principle. Regarding the universality, one would conceive of a case in which perpetrator is in the custody of a State party. In such a constellation, the ICC would not be able to claim jurisdiction over that person, although the universality principle would grant the state where the perpetrator is held to do so.5 It is not however surprising that the passive personality6 did not entry into the ICC-Statue given the disparate views held on this between common law and civil law countries.
1

The Court has jurisdiction only with the respect to crimes committed after the entry into force of this Statue. If a State becomes a Party to this Statue after its entry into force, the Court may exercise its jurisdiction only with the respect to crimes committed after the entry into force of this Statue for that State, unless that State has made a declaration under article 12, para. 3. 2 Article12 (3) of the Rome Statue. 3 Article 12 (2) (b) of the Rome Statue. 4 The obligations of State Parties to the ICC-Statue are to provide funding (article 117 ICC-Statue), evidence (article 93 ICC-Statue) and other forms of cooperation to the ICC (article 109 (1) ICC-Statue) and surrender and transfer of indicted persons to the ICC (article 89(1) ICC-Statue). 5 J. Delbruck & R. Wolfrum, Volkerrecht, Part I/3, 1145, (2nd edition, 2002). 6 The passive personality principle applies when the victim(s) of criminal conduct is a/are national(s) of a state party.

b) The Jurisdiction ratione materiae is not established in this case. The defendant counsel would like to focus on the issue whether Banchas statement falls within the range of incitement to genocide and has reached the standard set by Article 25 (3) (e) which could make him personally liable of committing genocide or not. But it is noticeable that the criminalization may run contrary to the fundamental right to free expression. A delicate line must be drawn to determine which range it falls within. Months of tension in Banchu state makes the region such a dangerous powder keg, that a simple gesture of throwing away a cigarette could be fatal. Promoting hatred, as the only significance in his statement, only inflames the already intense situation, and thus has little value in its nature.

The modern and tolerant atmosphere of press freedom in Bancha is irrelevant in determining the criminal liability of Bancha. It is only relevant when discussing the media liability of inciting genocide, Bancha Herald for instance, in the inciting activity. 7 Mr. Banchas statement falls out of the range protected under the notion of free expression. Bancha was not explicitly calling for destruction of Zawals. The accused was only against those people who betray the cause of his great nation. There was no intention for full destruction of Zawals population and it has not reached the standard of genocide as prescribed in Article 6.8 Incitement to genocide is not merely causing others to commit genocide. An intent as prescribed in Article 30 9 is needed. There must be a provoking, exhorting, or promoting others to engage in genocidal acts on purpose.

c) The Temporal Jurisdiction is not established in this case. Banchu as the nationality of the accused is a non-state party to ICC and is unlikely to accept the Courts jurisdiction by declaration as provided in Para 3 of Art. 1210, especially when the accused is the head of state at the time as explained earlier.

Prosecutor v. Nahimana et al., (Case No. ICTR-99-52-T) 3 December 2003, in which ICTR convicted three media men for the crime of inciting genocide. 8 For the purpose of this Statue, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group. 9 Unless other provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the materials elements are committed with intent and knowledge. 10 Art. 12 (3) of the Rome Statue. It has provided a way for non-state to accept ICCs jurisdiction by making declaration.

d) The preconditions which are required as a must for the ICC to be able to exercise its jurisdiction are not fulfilled according to Art. 12. Apart from the fundamental rule that States, by becoming parties to the Statute, accept the jurisdiction of the ICC with respect to the crimes referred to in Art. 5, the Court must fulfill other two conditions to exercise its jurisdiction in accordance with Art. 12 (2). With regard to the decisive question, it lays down that State acceptance is necessary from either the territorial State or the State of the nationality of the accused or both.11

Here, the Prosecutor failed to meet the requirements of the preconditions to enable the ICC to exercise its jurisdiction referred to Art. 12 (2), since: (i) the territorial State of the crime committed here is not a State Party to the Statute; (ii) the state of nationality of the accused is not a State Party to the Statute either.12 Banchu is not a State Party, so activities on its territory do not provide the ICC with territorial jurisdiction pursuant to Art. 12 (2) (a). The Prosecution can provide no evidence that the conduct in question occurred in a State Party, and consequently has no evidence of territorial jurisdiction.

Furthermore, a UN Security Council referral would have implied international acquiescence. This is an important aspect entirely lacking in the present case where there is no sense of proportionality, gravity or indeed logic justifying prosecution. As demonstrated by extensive state practice and opinion juris, it is an established rule of international customary law that the State of the nationality of the accused can thus exercise extraterritorial jurisdiction at least with regard to the most serious crimes under international criminal law. The International Court of Justice noted in Nottebohm that, according to state practice, nationality was: a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.13 It is obvious that in this case, the only state of nationality of the accused, Bancha, is Banchu. As is mentioned, Bancha is not signatory to and thus also not a State Party to the Statute. Hence, the Prosecutor failed to fulfill the preconditions required in Art. 12 (2) for the ICCs exercise of jurisdiction.
11

Antonio Cassese, The international criminal Court: the making of the Rome statute issues, negotiations, results, edited by Roy S. Lee; in cooperation with The Project on International Courts and Tribunals, published by The Hague: Kluwer Law International, c1999. at 606 (hereafter Antonio Cassese). 12 Art. 12 of the Rome Statue. 13 ICJ Reports, 1955, pp.4, 23; 22 ILR, pp. 349,360. at 725.

With no factual bases for article 12 jurisdiction, the defendant will argue for novel grounds for jurisdiction that are unsupported by the Statute, which does not permit expanding jurisdiction. The Pre-Trial Chamber must reject any argument for territorial jurisdiction that diverges from the language of the Statute or the intentions of the drafters. First, there is no statutory authority for a broad reading of article 12. Article 12 is explicit, conclusive, and clear on the issue of what may provide the Court jurisdiction, and there is no language within the Rome Statute generally that encourages alternative approaches.14 Second, a novel interpretation would harm the integrity of the Court. The preconditions to the exercise of jurisdiction detailed in article 12 were carefully negotiated and drafted during the Rome conference and were considered among of the most important and controversial provisions of the Statute.

B. In light of the protest made by the state of Bancha, the case is not admissible before the ICC. a) The case is not admissible before the ICC. Articles 17 to 19 of the Rome Statute determine the conditions of admissibility, which can be defined as requirements to the acceptance of a specific case over which the ICC has jurisdiction. The present situation is inadmissible before the International Criminal Court, once the requirements established in the Rome Statute are completely fulfilled.

b) Principle of Complimentarity. The ICC is based on the principle of complementarity whereby the Court is subsidiary or complementary to national courts. These courts enjoy priority in the exercise of jurisdiction except under special circumstances, when the ICC is entitled to take over and assert its jurisdiction. This approach undertaken by the Statute was adopted since, the national courts may have more means available to collect the necessary evidence and to lay their hands on the accused, and also since there was the intent to respect State sovereignty as much as possible.

14

Art 12 (2) of the Rome Statue.

Complementarity is laid down in paragraph 10 of the Preamble 15 as well as in Article 1 of the Statute16 and is spelled out in Articles 15, 17, 18 and 19. Due to this principle the Court is barred from exercising its jurisdiction over a crime, whenever a national Court asserts its jurisdiction over the same crime and under its national law the State has jurisdiction; and the State is willing and has the ability of adjudging (Art. 17.1 (a)).17

c) Banchu state has territorial jurisdiction over Bancha. The basic principle of territoriality determines that a crime committed in a States territory is justifiable in that State. In the Lotus case, the Permanent Court of International Justice stated in 1927 that in all systems of law the principle of the territoriality character of criminal law is fundamental (France v. Turkey, 1927, p. 20).18 Further, a US Court stated in Rivard v. United States19 that all the nations of the world recognize the principle that a man who outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is done. The principle is grounded basic principle of territorial sovereignty, which denotes the enjoyment of rights over territory. Territorial sovereignty involves the exclusive right to display the activities of a State (Netherlands v. United States, 1928, para. 829).20 Banchu is a sovereign State, and, for that reason, the principle of territory would prosper. In addition, there are two important advantages, which justify its applicability. First, the locus delicti commissi (the place where the offence has allegedly been committed) was within Banchu, country where it is easiest to collect evidence. It is therefore considered the appropriate place of trial (Israel v. Eichman, 1962).21

15

Emphasizing that the International Criminal Court established under this Statue shall be complementary to national criminal jurisdictions. 16 It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statue, and shall be complementary to national criminal jurisdictions. 17 The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is willing or unable genuinely to carry out the investigation or prosecution. 18 International Court of Justice, SS Lotus (France v. Turkey), PCIJ 1927 Series A, No. 10, 7 September 1927, [Cited as Lotus Case]. 19 Rivard v. United States, US Court of Appeal judgment of 375 F ed 882 (5th Cir. 1967). 20 The Lands of Palmas Arbitration, (Netherlands v. United States), 1928, 2, RIAA 829. 21 Israel, Eichman, Supreme Court, judgement of 29 May 1962, English translation in 36 ILR.

d) Burden of Proof It is a well established principle that bad faith cannot be presumed under international law.22 Banchu has shown interest in prosecuting the Bancha. It is not to the Banchu authorities to prove that they will conduct such procedures as determined by applicable law. Trust has also been acknowledged as basic principles that guide International Law (BILDER, 1981, p. 294).23 The burden of proof of demonstrating that Banchu has not conducted an investigation or is unwilling or unable of conducting a fair trial is upon those alleging it. Nevertheless, there are facts and evidences that demonstrate that Banchu will indeed comply with its obligations when trying the Bancha. Banchu state claimed that it is the violation of their sovereignty when Gogolistan surrender Banchu to the ICC as the state itself wanted to carry out the investigation against Bancha.

f) The crimes committed in Banchu do not justify the action by the Court. The Court shall determine the case is inadmissible where the case is not of sufficient gravity to justify further action by the Court. Under international law, national or territorial states have the right to prosecute and try international crimes, and often even a duty to do so. Further, national jurisdiction over those crimes is normally very broad, and embraces even lesser international crimes, such as sporadic or isolated acts, which do not make up, nor are part of, a pattern of criminal behavior. Were the ICC also to deal with all sorts of international crimes, including those of lesser gravity, it would soon be flooded with cases and become ineffective as a result of an excessive and is proportionate workload. It is therefore quite appropriate that the ICC should intervene only when national institutions fail to do so (ICTY, Order, 1998).24 There were no armed conflict, as already clarified above, and therefore no sufficient gravity to justify further action by the Court.

22 23

I.C.J. Reports 1957, p. 53/ WIPO, Case No. D2004-0535, 2004. Richard Builder, The Role of Trust in International Law, available at http://ssrn.com/abstract=912741, 1981. 24 ICTY, Order granting leave for withdrawal of charges against Govedarica, Gruban, Janjic, Kostic,Paspalj, Pavlic, Popovic, Predojevic, Savic, Babic and Spaonja issued by Judge Riad on 8 May 1998.

C. The conflict has not been internationalized owing to the participation of volunteers from Gogolistan. The conflict has not been internationalized owing to the participation of volunteers from Gogolistan. a) Participation of volunteers from Gogolistan is not governmental. Armed conflicts that are not of international character are those in which at least one of the parties involved is not governmental. Conflict is internal in nature when hostiles take place either between one (or more) armed groups (s) and government forces or solely between armed groups.25 In this case, the participation of volunteers from Gogolistan is not governmental in nature. The volunteers in Gogolistan helped Zawals after crossing over into Banchu. They were not authorized by the government of Gogolistan to do so. It was an armed conflict between government force of Banchu state and armed groups from Gogolistan that were not supported by government. The reports were also unconfirmed that the secret service agency (SSA) of Gogolistan was actively supporting the ZNP rebels. The participants in this internal armed conflict did not act on the behalf of Gogolistan state. b) The intensity of the violence is low. The threshold of intensity of violence in this case is such that it is an internal armed conflict. During the participation of volunteers from Gogolistan, the situation is not reached where we can call it as protracted armed violence. There were only situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of similar nature.26 The duration of the conflict between them is very less. There was also no displacement of civilians during the armed conflict between them. The territory of Banchu state was never come

25

ICTY, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 70. 26 ICRC, How is the term Armed Conflict defined in international humanitarian law? , Opinion Paper, March 2008, p.3. See also ICTY, Prosecutor v. Limaj, Case No. IT-03-66-T, Judgement (Trial Chamber), 30 November 2005, para 85.

under the control of volunteers from Gogolistan. The frequency of the acts of violence between them was also low.27 c) The volunteers from Gogolistan were not in an organized form. The volunteers come from Gogolistan did not have any level of organization. They were volunteers who did not have any command structure. They did not have any particular structure to carry out their operations. They just enrolled themselves with ZNP after crossing the border. The Gogolistan state had never recruited or trained new soldiers. Volunteers from Gogolistan were not under responsible command. Both of the above discussed conditions showed that this situation may be defined as internal disturbance or internal tensions. The ICRC also considered that internal disturbances are situations in which there is no non-international armed conflict as such, but there exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts of violence. In these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order.28 d) The military intervention in Banchu state does not make conflict as international armed conflict. A military intervention that does not involve insurgents acting on the intervening States behalf could not make that insurgent group qualify as members of other militias. An intervening States unintentional support of third parties does not make those third parties its agents and if insurgents do not belong to a State for the purposes of the Geneva Convections, their actions cannot constitute an international armed conflict.29 The facts in this case show that volunteers
27

In the Haradinaj Case, the ICTY adopted a slightly different position, stating that the notion of protracted armed conflict must therefore be understood broadly. It does not cover the duration of the violence only, but also covers all aspects that would enable degree of intensity to be evaluated. The ICTY also seems to equate this notion with that of intensity. (ICTY, Prosecutor v. Haradinaj, Case No. IT-04-84-T, Judgement (Trial Chamber), 3 April 2008, para 49.) 28 ICRC, Protection of Victims of Non-International Armed Conflicts, Document presented at the Conference of government experts on the reaffirmation and development of international humanitarian law applicable in armed conflicts, Vol. V, Geneva, 24 May-12June 1971, p.79. 29 See for example Judge Shahabuddeens declaration in the Blaskic Judgement where he states that There is an armed conflict between a secessionist group and the government of the state. A foreign state intervenes military in support of the secessionist group and is resisted by the local state. The external military intervention clearly

from Gogolistan had never acted on the behalf of Gogolistan state. They voluntarily entered the land of Banchu state without the consent of Gogolistan government and after conducting operations; they would either cross back into Gogolistan or stay in the highlands falling within Banchu. The volunteers cannot be regarded as agents of Gogolistan because their government did not support their act by any means. Therefore their actions cannot constitute an international armed conflict but constitute an internal conflict. They were also not financially or even militarily assisted by a State. D. The arrest and subsequent transfer of Mr. Bancha to ICC is illegal. The arrest and subsequent transfer of Bancha to ICC is illegal under article 98 of the Statue, ICC case law30 and customary international law.

a) The information submitted by the Prosecutor does not meet the requirements to issue an arrest warrant.

1) There are no reasonable grounds to believe that Head of State Bancha has committed genocide, crimes against humanity and war crimes. According to Art. 58 (1) (a), before the Pre-Trial Chamber issues an arrest warrant, it shall be ensure that there are reasonable grounds to believe that the accused person has committed a crime within the jurisdiction of the Court.31 However, as is argued in the first issue, Bancha did not commit genocide, which is a crime within the jurisdiction of the Court. Cases that have come before the attention of the Court where the legality of an arrest has been questioned include Lubanga32 where defendant have sought to question the legality of the actual arrest in terms of its practical implementation and the technical matters of the arrest. The case at hand has to be

constitutes an armed conflict between states for the purpose of making the Fourth Geneva Convection applicable. But does the internal conflict itself become an armed conflict between states? The answer is in the affirmative if the foreign state assumes control over the secessionist group such that the use of force by the secessionist group becomes a use of force by the foreign state against the local state, thereby giving rise to an armed conflict between the states within the meaning of Article 2, first paragraph, of the Fourth Geneva Convection. Prosecutor v. Blaskic, IT-95-14 Judgement, 3 March 2000 (hereinafter The Blaskic Judgement) Declaration of Judge Shahabuddeen. 30 Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecutors Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Public Redacted Version, Case No: ICC-02/05-01/09, 4 March 2009. 31 Art. 58 (1) (a). 32 Lubanga, Judgement on the Appeal against the decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19 (2) (a), Case No: ICC-01/04-01/06, 14 December 2006.

clearly distinguished. Article 58 (1) (a) remains unsatisfied. Any possible grounds are based on an extract of highly disputed and unreliable evidence, as well as several coincidental events. Such evidence cannot possibly amount to reasonable grounds that would suffice to provide evidence of the occurrence of a crime within jurisdiction of the Court.

2) Arrest of Bancha is unnecessary. Even if Bancha committed incitement to genocide; there is no necessity to arrest him pursuant to Art. 58 (1) (b). Crucially, the measures were not necessary to ensure his appearance at trial according to Article 58 (1) (b) (i). Given the nature of his role as Head of State, the accused did not pose a risk of absconding. Instead, the Court could have simply summoned the Accused. Additionally, such measures were not necessary to ensure [he] does not obstruct or endanger the investigation of Court proceeding according to Article 58 (1) (b) (ii). There was plainly nothing the Accused could have done to obstruct or endanger the investigation of Court proceedings. Meanwhile, the Prosecutor has initiated the investigation, while Bancha has not obstructed or endangered the investigation. The Chamber should acknowledge that the Accused has a public role and reputation to lose. The Accused would undoubtedly be more interested in overtly cooperating with the Court and prove his innocence as opposed to avoid its reach. Most importantly, however, the arrest of the Accused was not necessary to prevent [him] continuing the commission of that crime, or a related crime according to Article 58 (1) (b) (iii). On the contrary, imprisonment of a head of state would undoubtedly pose the biggest indirect incitement to any followers and allies. It is the ultimate provocation of violence. The fact that no violent reactions ensued, epitomizes the tragic misconception of the Prosecution. No crime was ever committed. It follows that the Chambers authorization of the arrest of the Accused was not only unlawful but politically insensitive and, had the crime actually taken place, would have been counter-productive. 3) Gogolistan Police should not arrest Head of State Bancha in respect to state immunity. Bancha should be immune from the arrest by Gogolistan police. There are two kinds of immunities in international customary law: the functional immunity (immunity ratione materiae) and the personal immunity (immunity ratione personae). The immunity ratione materiae of a diplomat or head of a state is in fact state immunity. Heads of states or governments are
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inviolable and cannot be arrested in any foreign states. Under international customary law, both of the states i.e. Banchu and Gogolistan have the obligation of immunity. ICJ held in DRC v. Belgium that high-ranking state officials are immune from the domestic jurisdictions of other states and this includes particularly heads of state.33 With regard to immunity, a literal reading of Article 27 (2)34 may suggest that the defence of immunity cannot be invoked under any circumstances. However, it is unreasonable to assume that the Court can ignore claims to immunity from heads of state of non-ICC party states. While Article 27 states that neither the immunity of a head of state nor the official position of a suspected international criminal will bar the Court from exercising its jurisdiction, the Accused did not try to assert state immunity at an international level. Instead the Accused attempted to assert it at a horizontal, national level in Bancha. According to customary international law that Court was obliged to grant the Accused diplomatic and state immunity. According to Article 98 (1), the domestic Court could not have acted upon the request of the Court because the Court cannot legally request taking into custody of a head of state from a third country. The Accused should not have been arrested and surrendered and it would be antithetical to justice if the Chamber relied on an unlawful judgment of a national surrender trial.

b) Subsequent Transfer of Bancha is illegal. In accordance with Art. 98 (1), the ICC may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state, unless the Court can first obtain the cooperation of that third party for the waiver of the immunity. Gogolistan is also not a custodial country of the Statute; the Court cannot request Gogolistan for assistance which would require it to act inconsistently with its obligations under international law with respect to state or diplomatic immunity of a person or property of a third State. Since the Court has not obtained the cooperation of Banchu, it could not request Gogolistan for surrender or assistance if this will request Gogolistan to breach its obligations under international law with respect to diplomatic immunity of a person of Banchu.
33

Arrest Warrant of 1 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, Para.51 34 Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

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E. The accused is not guilty of following crimes: a) The accused is not guilty of crime of Genocide under Article 6 (a) of the Rome Statue. Head of Banchu state has not pursued a policy of genocide under Art. 6 (a) of the Rome Statue.
The Genocide Convention of 1948 and the corresponding customary international rules require a number of specific objective and subjective elements for individual criminal responsibility for genocide to arise. There are elements that show the lack of genocidal intent. The fact that in a

number of villages attacked by Banchu Army the attackers refrained from exterminating the whole population that had not fled, but instead selectively killed members of ZNP, is an important element. They were only against those people who betray the cause of their great nation. They were only against the rebels not whole Zawals. When Banchu Army conducted a raid against the ZNP rebels, they did not shoot at the people inside the hospital and the college building. They entrenched themselves in the forests at a distance of 500 meters from these buildings and fired mortar shells on the Rebels. This case clearly shows that the intent of the attackers was not to destroy any group as such, or part of the group. Instead, the intention was to murder all those men they considered as rebels, as well as prevent rebels from hiding among, or getting support from, the local population. In the case of genocide a person intending to murder a set of persons belonging to a protected group, with the specific intent of destroying the group (in whole or in part), may be motivated, for example, Bancha Army took revenge for guerrilla warfare by members of ZNP. From the viewpoint of criminal law, what matters is not the motive, but rather whether or not there exists the requisite special intent to destroy a group.

b) The accused is not guilty of crime against Humanity under Article 7(1) (g) enlisted in the Rome Statue. To establish a crime against humanity which would bring the defendant under jurisdiction of the ICC, we must apply the threshold test of Article 735 and determine whether the acts in question were committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack. Firstly, there is nowhere mentioned in the facts that Bancha had knowledge of the attack conducted by his army since he never ordered to conduct
35

For the purpose of this statue, crime against humanity means any of the following acts when committed as a widespread or systematic attack directed against any civilian population with the knowledge of the attack.

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such any act. Moreover, a widespread attack is understood as requiring large-scale action involving a substantial number of victims while the term systematic was understood as requiring a high degree of orchestration and methodical planning. In this case, neither of these requirements is met. . There exists no evidence in the record which would indicate that the soldiers were aware of such a systematic attack, even if one existed. The second part of the threshold test, direction against a civilian population also fails to designate these actions as crimes under Article 7. The Bancha Army who caused bloodshed in Zawals did so on the basis of military investigation which had designated the target as a nexus of violent uprising. Their actions were based on a intention to maintain peace, and the target was believed to be an armed holdout. The Army was also searching for armed insurgents as a part of their duty. The Defendant did not possess the requisite mens rea necessary to designate their actions as crimes under Article 7 (1) (g).36 Without the requisite knowledge, the defendant cannot be brought before the ICC under charges of crimes against humanity.

c) The accused is not guilty of war Crimes under Article 8(2) (b) (ix) and Article 8(2) (b) (xxiii) enlisted in the Rome Statue. The Bancha army would not be held liable under Article 8 (2) (b) (ix)37 as there was no intention to direct attack against buildings dedicated to religion. They were conducting the raid against the rebels near the town of Bokato. The rebels were hiding in the caves which were around 500 meters away from the ancient Calypso temple, a world heritage site declared by UNESCO. There was no intention to direct attack against the temple. They only want to finish off the militants. The temple was not damaged intentionally but it was during the course of the raid, the temple structure was badly damaged by bombing. This act is also done with military objective to curb the rebels. So Bancha Army would not be held liable. The Bancha Army has never utilized the presence of civilians or other protected persons to render certain points. They were forced to retreat when ZNP rebels were unexpectedly joined by another group of rebels. Have they utilized the presence of civilians, they would have never entrenched themselves in the forests at a
36

Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity. 37 Intentionally directing attacks against buildings dedicated to religion, education art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.

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distance of 500 meters from these buildings and then fired mortar shells on the Rebels. They have also no intention to utilize the presence of these civilians. It just happened when it appeared that the retreating Banchu Army would have been destroyed until they moved to a safe place.

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PRAYER Wherefore, in the light of the questions presented, arguments advanced and authorities cited, counsel on the behalf of the Defendant requests this Honble Court to find, adjudge and declare that:

1. The Court cannot exercise its jurisdiction over the case. 2. The case is not admissible before the ICC. 3. The Chamber should decline to confirm the charge. The case should be dismissed on preliminary basis (Art. 53 (2). (c)). 4. The arrest and subsequent transfer of Bancha is illegal. The Accused should be immediately and unconditionally released. Pass any order, which the Court may deem fit in light of justice equity and good conscience. In respectful submission before the International Criminal Court.

Counsel of the Defendant