MEMORIAL for DEFENSE COUNSEL

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ICC MOOT COURT COMPETITION IN THE ENGLISH LANGUAGE

2021

DEFENSE COUNSEL

TEAM NUMBER: 64

TOTAL WORD COUNT: 9864

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Original: English Date: 8 March 2021

THE APPEALS CHAMBER

Case before the International Criminal Court:

PROSECUTOR V. DRAGONE GOODRIDER OF WESSOS

The Defense Counsel's Submission in the Appeal of the

Pre-Trial Chamber's Decision on Confirmation of Charges against the

Defendant Dragone Goodrider of Wessos

Source: Defense Counsel for General Dragone Goodrider of Wessos

MEMORIAL for DEFENSE COUNSEL

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TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................... 3

LIST OF ABBREVIATIONS ........................................................................................................... 6

INDEX OF AUTHORITIES ............................................................................................................. 7

TREATIES AND CONVENTIONS ........................................................................................................... 7

CASES ............................................................................................................................................... 8

INTERNATIONAL ORGANIZATIONS' DOCUMENTS ............................................................................. 18

BOOKS ............................................................................................................................................ 21

ARTICLES ........................................................................................................................................ 24

MISCELLANEOUS ............................................................................................................................. 27

STATEMENT OF FACTS .............................................................................................................. 30

ISSUES .............................................................................................................................................. 32

SUMMARY OF ARGUMENTS ..................................................................................................... 33

WRITTEN ARGUMENTS ............................................................................................................. 35

[A] DEFENDANT WAS UNLAWFULLY DEPRIVED OF HIS RIGHT TO BE PRESENT AT THE

CONFIRMATION HEARING AND OF HIS RIGHT TO SELF-REPRESENTATION ................................. 35

(1) PTC has no authority to sanction disruptive behaviour by limiting any of

Defendant's fair trial rights .............................................................................................. 35

1.1 PTC cannot limit Defendant's fair trial rights on the basis of ICCSt or RPE .......... 35

1.2 Alternatively, TC's authority must not be extended to the PTC .............................. 36

1.3 In any event, PTC has no authority to limit Defendant's right to be present ........... 37

(2) Defendant was unlawfully deprived of his right to be present at the Confirmation

Hearing ............................................................................................................................ 38

2.1 Defendant never explicitly waived his right to be present at the Confirmation

Hearing .................................................................................................................... 38

2.2 Defendant's behaviour cannot be regarded as an implicit waiver of the right

to be present ............................................................................................................. 38

(3) Defendant was unlawfully deprived of his right to self-representation ........................... 40

3.1 Right to self-representation is one of the fundamental fair trial rights in

criminal proceedings................................................................................................ 40

MEMORIAL for DEFENSE COUNSEL

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3.2 PTC did not adequately warn the Defendant that continuing with his

behaviour would lead to a limitation of his right to self-representation

spanning even subsequent proceedings ................................................................... 40

3.3 In any event, Defendant could not have foreseen that his behaviour would

lead to a limitation of his right to self-representation .............................................. 41

(4) In any event, the measures were unnecessary and disproportionate ............................... 42

4.1 Imposing a stand-by counsel was unnecessary, disproportionate and

prejudiced his rights at subsequent hearings, including the Confirmation

Hearing .................................................................................................................... 43

4.2 Excluding the Defendant was not in the interest of justice ..................................... 44

[B] CHARGED OFFENSES CANNOT BE PROSECUTED AS "OTHER INHUMANE ACTS" AND

PROSECUTION DID NOT MEET ITS DUTY TO ESTABLISH WITH SUFFICIENT EVIDENCE THAT

THERE ARE SUBSTANTIAL GROUNDS TO BELIEVE THAT THE DEFENDANT ORDERED THE

COMMISSION OF A CRIME ......................................................................................................... 45

(1) Charged offenses cannot be prosecuted as "other inhumane acts" .................................. 45

1.1 Material elements of "other inhumane acts" are not fulfilled .................................. 45

1.1.1 Perpetrators did not inflict great suffering, or serious injury to body or

mental or physical health, by means of an inhumane act ............................. 45

1.1.2 Alternatively, the acts in question are not of a character similar to other

enumerated crimes against humanity............................................................ 48

1.2 Mental elements of "other inhumane acts" are not fulfilled .................................... 50

1.2.1 Perpetrators did not know that their conduct could be, nor intended it

to be, part of a widespread or systematic attack directed against a

civilian population ........................................................................................ 50

(2) Defendant is not responsible for "other inhumane acts", because he was not aware

of the substantial likelihood that a crime could be committed in execution of his

orders, and did not accept such risk ................................................................................ 52

(3) Prosecution did not meet the evidentiary burden to establish that there are

substantial grounds to believe that the Defendant ordered the commission of a

crime ................................................................................................................................ 54

[C] ICC HAS NO JURISDICTION TO PROSECUTE THE DEFENDANT ................................................... 56

(1) The preconditions for the exercise of jurisdiction from Art. 12 ICCSt are not

fulfilled ............................................................................................................................ 56

1.1 The Defendant is a national of Wessos over which the ICC has no

jurisdiction ............................................................................................................... 56

1.2 ICC cannot exercise its jurisdiction since the "conduct" in question did not

occur on the territory of a State Party ...................................................................... 56

MEMORIAL for DEFENSE COUNSEL

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(2) Alternatively, the ICC cannot investigate and prosecute the Defendant because he

enjoys personal immunity from prosecution ................................................................... 58

2.1 Defence ministers enjoy personal immunity in international law ........................... 58

2.2 ICCSt cannot create any obligations for Wessos .................................................... 59

2.2.1 There exists no exception to immunity in international criminal law ........... 59

2.2.2 Applying Art. 27 ICCSt to establish jurisdiction would contravene

international law ........................................................................................... 59

SUBMISSIONS ................................................................................................................................ 62

MEMORIAL for DEFENSE COUNSEL

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LIST OF ABBREVIATIONS

§

AC

AJ

Art(s).

BMR

CAH

CIL

Confirmation Hearing

Eassos

fn.

H5N8 virus

IA

ICC

ICJ

ICTR

ICTY

ILC

NSC

Prosecution

PTC

Reg(s).

SCSL

TC

TJ

UNSC

Wessos

WHO

Paragraph number(s)

Appeals Chamber

Appeals Judgement

Article(s)

Bloody Mountain Range

Crime(s) against humanity

Customary international law

Confirmation of charges hearing

The State of Eassos

Footnote number(s)

H5N8 Highly Pathogenic Avian Influenza

Interlocutory Appeal

International Criminal Court

International Court of Justice

International Criminal Tribunal for Rwanda

International Criminal Tribunal for the Former Yugoslavia

International Law Commission

National Security Council of Wessos

Counsel for the Prosecution

Pre-Trial Chamber

Regulation(s)

Special Court for Sierra Leone

Trial Chamber

Trial Judgement

United Nations Security Council

The State of Wessos

World Health Organization

MEMORIAL for DEFENSE COUNSEL

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INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

1. African Charter on Human and Peoples' Rights, 1 Jun 1981,

CAB/LEG/67/3 rev. 5, 21 ILM 58 [ACHPR] 42

2. American Convention on Human Rights, 22 Nov 1969, 1144 UNTS 123

[ACHR]

40, 42

3. Charter of Fundamental Rights of the European Union, 26 Oct 2012,

2012/C 326/02 [EUC] 42

4. Charter of the International Military Tribunal, in: Agreement by the

Government of the United Kingdom of Great Britain and Northern Ireland,

the Government of the United States of America, the Provisional Government

of the French Republic and the Government of the Union of Soviet Socialist

Republics for the prosecution and punishment of the major war criminals of

the European Axis, 8 Aug 1945, 82 UNTS 279 [Nuremberg Charter]

40

5. Charter of the United Nations and Statute of the International Court of

Justice, 26 Jun 1945 (as amended 1971), 1 UNTS 16 [UNC] 47, 60

6. European Convention on Human Rights, 4 Nov 1950 (as amended 2013),

213 UNTS 221 [ECHR] 40, 42

7. International Covenant on Civil and Political Rights, 16 Dec 1966,

999 UNTS 171 [ICCPR] 38, 40, 42

8. Rome Statute of the International Criminal Court, 17 Jul 1998 (as amended

2010), 2187 UNTS 3 [ICCSt]

35–38, 40–43,

45, 49–50,

56–57, 59–60

9. Vienna Convention on Diplomatic Relations, 18 Apr 1961, 500 UNTS 95

[VCDR]

58

10. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331

[VCLT]

38, 56, 59

MEMORIAL for DEFENSE COUNSEL

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CASES

INTERNATIONAL CRIMINAL COURT

11. Request under Regulation 46(3) of the Regulations of the Court, Pre-Trial

Chamber I, Amicus Curiae Observations by the International Commission of

Jurists (pursuant to Rule 103 of the Rules), 18 Jun 2018,

ICC-RoC46(3)-01/18-20 [Jurisdiction Observations]

56

12. Situation in the People's Republic of Bangladesh/Republic of the Union of

Myanmar, Pre-Trial Chamber III, Decision Pursuant to Article 15 of the Rome

Statute on the Authorisation of an Investigation into the Situation in the

People's Republic of Bangladesh/Republic of the Union of Myanmar,

14 Nov 2019, ICC-01/19-27 [Myanmar Authorisation]

56–58

13. Situation in the Republic of Côte D'Ivoire, Pre-Trial Chamber III,

Corrigendum to "Decision Pursuant to Article 15 of the Rome Statute on the

Authorisation of an Investigation into the Situation in the Republic of Côte

d'Ivoire", 15 Nov 2011 ICC-02/11-14-Corr [Ivory Coast Authorization]

56

14. Situation in the Republic of Kenya, Pre-Trial Chamber II, Decision Pursuant

to Article 15 of the Rome Statute on the Authorization of an Investigation into

the Situation in the Republic of Kenya, 31 Mar 2010, ICC-01/09-19-Corr

[Kenya Authorization]

38, 48–49, 56

15. Situation in the State of Palestine, Pre-Trial Chamber I, Decision on the

'Prosecution request pursuant to article 19(3) for a ruling on the

Court's territorial jurisdiction in Palestine', 5 Feb 2021, ICC-01/18-143

[Palestine Jurisdiction]

59–60

16. Situation in Uganda, Pre-Trial Chamber II, Warrant of Arrest for Joseph

Kony issued on 8th July 2005 as amended on 27 September 2005,

27 Sep 2005, ICC-02/04-01/05-53 [Kony Warrant]

49

MEMORIAL for DEFENSE COUNSEL

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17. The Prosecutor v. Abdallah Banda Abakaer Nourain, Trial Chamber IV,

Public redacted version of "Prosecution's submissions on trials in absentia in

light of the specific circumstances of the Banda case", 13 December 2019,

ICC-02/05-03/09-673-ConfExp, 11 May 2020, ICC-02/05-03/09-673-Red

[Banda Absentia]

36

18. The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al

Rahman, Pre-Trial Chamber I, Decision on the Prosecution Application under

Article 58(7) of the Statute, 27 Apr 2007, ICC-02/05-01/07-1-Corr

[Harun Warrant]

56

19. The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona, Pre-Trial

Chamber II, Corrected version of 'Decision on the confirmation of charges

against Alfred Yekatom and Patrice-Edouard Ngaïssona', 14 May 2020,

ICC-01/14-01/18-403-Red-Corr [Yekatom Charges]

36

20. The Prosecutor v. Bahar Idriss Abu Garda, Pre-Trial Chamber I, Decision

on the Confirmation of Charges, 8 Feb 2010, ICC-02/05-02/09-243-Red

[Abu Garda Charges]

49, 54

21. The Prosecutor v. Bosco Ntaganda, Pre-Trial Chamber II, Decision Pursuant

to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the

Prosecutor Against Bosco Ntaganda, 9 Jun 2014, ICC-01/04-02/06-309

[Ntaganda Charges]

52

22. The Prosecutor v. Callixte Mbarushimana, Appeals Chamber, Judgement on

the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of

16 December 2011 entitled "Decision on the confirmation of charges",

30 May 2012, ICC-01/04-01/10-514 [Mbarushimana Charges Appeal]

36–37

23. The Prosecutor v. Callixte Mbarushimana, Pre-Trial Chamber I, Decision on

the confirmation of charges, 16 Dec 2011, ICC-01/04-01/10-465-Red

[Mbarushimana Charges]

54

24. The Prosecutor v. Charles Blé Goudé, Pre-Trial Chamber I, Decision on the

confirmation of charges against Charles Blé Goudé, 11 Dec 2014,

ICC-02/11-02/11-186 [Goudé Charges]

54

MEMORIAL for DEFENSE COUNSEL

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25. The Prosecutor v. Dominic Ongwen, Trial Chamber IX, Trial Judgement,

4 Feb 2021, ICC-02/04-01/15-1762-Red [Ongwen TJ] 45

26. The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and

Mohammed Hussein Ali, Pre-Trial Chamber II, Decision on the

Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome

Statute, 23 Jan 2012, ICC-01/09-02/11-382-Red [Kenyatta Charges]

37, 48–49, 54

27. The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui,

Pre-Trial Chamber I, Decision on the confirmation of charges, 30 Sep 2008,

ICC-01/04-01/07-717 [Katanga Charges]

54

28. The Prosecutor v. Germain Katanga, Pre-Trial Chamber I, Transcript,

11 Jul 2008, ICC-01/04-01/07-T-46-ENG [Katanga Transcript] 38

29. The Prosecutor v. Germain Katanga, Trial Chamber II, Judgement pursuant

to article 74 of the Statute, 7 Mar 2014, ICC-01/04-01/07-3436-tENG

[Katanga TJ]

35, 49

30. The Prosecutor v. Jean-Pierre Bemba Gombo, Pre-Trial Chamber II,

Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the

Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 Jun 2009,

ICC-01/05-01/08-424 [Bemba Charges]

49–50, 54

31. The Prosecutor v. Laurent Gbagbo, Pre-Trial Chamber I, Decision adjourning

the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of

the Rome Statute, 3 Jun 2013, ICC-02/11-01/11-432 [Gbagbo Adjournment]

54

32. The Prosecutor v. Laurent Gbagbo, Pre-Trial Chamber I, Decision on the

schedule for the confirmation of charges hearing, 12 Feb 2013,

ICC-02/11-01/11-397 [Gbagbo Schedule]

36, 38

33. The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber II,

Decision under article 87(7) of the Rome Statute on the non-compliance by

Jordan with the request by the Court for the arrest and surrender of Omar

Al-Bashir, 11 Dec 2017, ICC-02/05-01/09-309 [Al-Bashir Jordan]

60

MEMORIAL for DEFENSE COUNSEL

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34. The Prosecutor v. Sylvestre Mudacumura, Pre-Trial Chamber II,

Decision on Prosecutor's Application under Article 58, 13 Jul 2012,

ICC-01/04-01/12-1-Red [Mudacumura Warrant]

52

35. The Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I, Decision on

the confirmation of charges, 29 Jan 2007, ICC-01/04-01/06-803-tEN

[Lubanga Charges]

50, 54

36. The Prosecutor v. Uhuru Muigai Kenyatta, Trial Chamber V(b),

Decision on Defence Request for Conditional Excusal from

Continuous Presence at Trial, 18 Oct 2013, ICC-01/09-02/11-830

[Kenyatta Excusal]

38

37. The Prosecutor v. William Samoei Ruto and Joshua Arap Sang,

Appeals Chamber, Judgement on the appeal of the Prosecutor against the

decision of Trial Chamber V(a) of 18 June 2013 entitled "Decision on Mr

Ruto's Request for Excusal from Continuous Presence at Trial", 25 Oct 2013,

ICC-01/09-01/11-1066 [Ruto Excusal Appeal]

39, 42–43

38. The Prosecutor v. William Samoei Ruto and Joshua Arap Sang,

Trial Chamber V(a), Decision on Mr Ruto's Request for Excusal

from Continuous Presence at Trial, 18 Jun 2013, ICC-01/09-01/11-777

[Ruto Excusal]

37–38

39. The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua

Arap Sang, Pre-Trial Chamber II, Decision on the "Defence Request pursuant

to Rule 124(1) for Mr. William Ruto to Waive his Right to be Present for part

of the Confirmation of charges Hearing", 29 Aug 2011, ICC-01/09-01/11-302

[Ruto Waiver]

38

40. The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua

Arap Sang, Pre-Trial Chamber II, Decision on the Confirmation of

Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute,

23 Jan 2012, ICC-01/09-01/11-373 [Ruto Charges]

37

MEMORIAL for DEFENSE COUNSEL

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INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

41. Prosecutor v. Dario Kordić and Mario Čerkez, Appeals Chamber,

Judgement, 17 Dec 2004, IT-95-14/2-A [Kordić AJ] 48, 49, 52

42. Prosecutor v. Gojko Janković & Radovan Stanković, Trial Chamber I,

Decision Following Registrar's Notification of Radovan Stanković's

Request for Self-representation, 19 Aug 2005, IT-96-23/2

[Stanković Self-representation]

39

43. Prosecutor v. Jovica Stanišić, Franko Simatović, Appeals Chamber,

Decision on Defence Appeal of the Decision on Future Course of

Proceedings, 16 May 2008, IT-03-69-AR73.2 [Stanišić Course Appeal]

42

44. Prosecutor v. Miroslav Kvočka, Milojica Kos, Mlađo Radić, Zoran Žigić,

Dragoljub Prcać, Trial Chamber, Judgement, 2 Nov 2001, IT-98-30/1-T

[Kvočka TJ]

49

45. Prosecutor v. Radovan Karadžić, Trial Chamber, Public Redacted Version of

Judgement issued on 24 Mar 2016, 24 Mar 2016, IT-95-5/18-T [Karadžić TJ]

52

46. Prosecutor v. Slobodan Milošević, Status Conference Transcript, 30 Aug

2001, IT-02-54 [Milošević Transcript] 40

47. Prosecutor v. Slobodan Milošević, Trial Chamber, Reasons for Decision on

Assignment of Defence Counsel, 22 Sep 2004, IT-02-54-T

[Milošević Reasons]

44

48. Prosecutor v. Slobodan Milošević, Trial Chamber, Reasons for Decision

on the Prosecution Motion Concerning Assignment of Counsel, 4 Apr 2003,

IT-02-54-T [Milošević Denying Counsel]

40, 43

49. Prosecutor v. Stanislav Galić, Appeals Chamber, Judgement, 30 Nov 2006,

IT-98-29-A [Galić AJ] 49

50. Prosecutor v. Stanislav Galić, Trial Chamber I, Judgement and Opinion,

5 Dec 2003, IT-98-29-T [Galić TJ] 49

MEMORIAL for DEFENSE COUNSEL

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51. Prosecutor v. Tihomir Blaškić, Appeals Chamber, Judgement, 29 Jul 2004,

IT-95-14-A [Blaškić AJ] 52

52. Prosecutor v. Vojislav Šešelj, Appeals Chamber, Decision on Appeal against

the Trial Chamber's Decision on Assignment of Counsel, 20 Oct 2006,

IT-03-67-AR73.3 [Šešelj Counsel Appeal]

40–43

53. Prosecutor v. Vojislav Šešelj, Trial Chamber I, Decision on Assignment of

Counsel, 21 Aug 2006, IT-03-67-PT [Šešelj Assignment of Counsel] 44

54. Prosecutor v. Vojislav Šešelj, Trial Chamber II, Decision on Prosecution's

Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his

Defence, 9 May 2003, IT-03-67-PT [Šešelj Appointing Counsel]

44

55. Prosecutor v. Zejnil Delalić, Zdravko Mucić also known as "Pavo", Hazim

Delić and Esad Landžo also known as "Zenga", President, Decision of the

President on the Prosecutor's Motion for the Production of Notes Exchanged

Between Zejnil Delalić and Zdravko Mucić, 11 Nov 1996, IT-96-21-PT

[Delalić Notes]

37

56. Prosecutor v. Zejnil Delalić, Zdravko Mucić also known as "Pavo", Hazim

Delić and Esad Landžo also known as "Zenga", Trial Chamber, Judgement,

16 Nov 1998, IT-96-21-T [Delalić TJ]

46, 49

57. Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago

Josipović, Dragan Papić, Vladimir Šantić, also known as "Vlado",

Trial Chamber, Judgement, 14 Jan 2000, IT-95-16-T [Kupreškić TJ]

50

58. Slobodan Milošević v. Prosecutor, Appeals Chamber, Decision

on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment

of Defense Counsel, 1 Nov 2004, IT-02-54-AR73.7 [Milošević Counsel

Appeal]

40, 42

59. The Prosecutor v. Tihomir Blaškić, Trial Chamber, Judgement, 3 Mar 2000,

IT-95-14-T [Blaškić TJ] 45

MEMORIAL for DEFENSE COUNSEL

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INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

60. Augustin Ndindiliyimana, François-Xavier Nzuwonemeye, Innocent

Sagahutu v. The Prosecutor, Appeals Chamber, Judgement, 11 Feb 2014,

ICTR-00-56-A [Ndindiliyimana AJ]

50

61. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v.

The Prosecutor, Appeals Chamber, Judgement, 28 Nov 2007, ICTR-99-52-A

[Nahimana AJ]

38–39, 52

62. François Karera v. The Prosecutor, Appeals Chamber, Judgement,

2 Feb 2009, ICTR-01-74-A [Karera AJ] 52

63. Prosecutor v. Tharcisse Muvunyi, Trial Chamber III, Judgement and

Sentence, 12 Sep 2006, ICTR-2000-55A-T [Muvunyi TC] 48

64. Protais Zigiranyirazo v. The Prosecutor, Appeals Chamber,

Decision on Interlocutory Appeal, 30 Oct 2006, ICTR-01-73-AR73

[Zigiranyirazo IA]

42

65. The Prosecutor v. Clément Kayishema and Obed Ruzindana,

Trial Chamber II, Judgement, 21 May 1999, ICTR-95-1-T [Kayishema TJ] 45, 49, 54

66. The Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Judgement,

2 Sep 1998, ICTR-96-4-T [Akayesu TJ] 49

67. The Prosecutor v. Laurent Semanza, Trial Chamber III, Judgement and

Sentence, 15 May 2003, ICTR-97-20-T [Semanza TJ] 50

MEMORIAL for DEFENSE COUNSEL

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SPECIAL COURT FOR SIERRA LEONE

68. Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor

Kanu, Appeals Chamber, Judgement, 22-Feb-2008, SCSL-2004-16-A

[Brima AJ]

49

69. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa,

Trial Chamber, Decision on the Application of Samuel Hinga Norman for Self

Representation under Article 17(4)(d) of the Statute of the Special Court,

8 Jun 2004, SCSL-04-14-T [Norman Self-Representation]

44

INTERNATIONAL COURT OF JUSTICE,

PERMANENT COURT OF INTERNATIONAL JUSTICE

70. Armed Activities on the Territory of the Congo (New Application: 2002)

(Democratic Republic of the Congo v. Rwanda), Jurisdiction and

Admissibility Judgement, 3 Feb 2006, 2006 ICJ Rep. 6 [DRC v. Rwanda]

59

71. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.

Belgium), Judgement, 14 Feb 2002, 2002 ICJ Rep. 3 [Arrest Warrant] 58–59, 61

72. Case of the Monetary Gold removed from Rome in 1943 (Italy v. France,

United Kingdom of Great Britain and Northern Ireland and United States of

America), Judgement, 15 Jun 1954, 1954 ICJ Rep. 19 [Monetary Gold]

59-60

73. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.

France), Judgement, 4 Jun 2008, 2008 ICJ Rep. 177 [Djibouti v. France] 59

EUROPEAN COURT OF HUMAN RIGHTS

74. Alekhina v. Russia, Chamber, 17 Jul 2018, 38004/12 [Alekhina v. RU] 44

75. Bykov v. Russia, Grand Chamber, 10 Mar 2009, 4378/02 [Bykov v. RU] 35

76. Colozza v. Italy, Chamber, 12 Feb 1985, 9024/80 [Colozza v. IT] 39

77. Dvorski v. Croatia, 20 Oct 2015, 25703/11 [Dvorski v. HR] 41

MEMORIAL for DEFENSE COUNSEL

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78. Galstyan v. Armenia, Chamber, 15 Nov 2007, 26986/03 [Galstyan v. AM] 42

79. Idalov v. Russia, Grand Chamber, 22 May 2012, 5826/03 [Idalov v. RU] 39, 41

80. Lagerblom v. Sweden, Chamber, 14 Jan 2003, 26891/95 [Lagerblom v. SE] 38, 42

81. Mayzit v. Russia, Chamber, 20 Jan 2005, 63378/00 [Mayzit v. RU] 42

82. Murtazaliyeva v. Russia, Grand Chamber, 18 Dec 2018, 36658/05

[Murtazaliyeva v. RU]

42

83. Pishchalnikov v. Russia, 24 Sep 2009, 7025/04 [Pishchalnikov v. RU] 41

84. Şaman v. Turkey, 5 Apr 2011, 35292/05 [Şaman v. TR] 41

85. Sejdovic v. Italy, Grand Chamber, 1 May 2008, 56581/00 [Sejdovic v. IT] 39, 41

86. Stanford v. the United Kingdom, Chamber, 23 Feb 1994, 16757/90

[Stanford v. UK]

42

87. Zana v. Turkey, Grand Chamber, 25 Nov 1997, 69/1996/688/880

[Zana v. TR]

39

HUMAN RIGHTS COMMITTEE

88. Carlos Correia de Matos v. Portugal, 28 Mar 2006, CCPR/C/86/D/1123/2002

[Correia v. PT]

43

NATIONAL COURTS

89. Coco v. The Queen, High Court of Australia, 13 Apr 1994, 1994 HCA 15

[Coco (1994 HCA 15)]

38

90. Faretta v. California, U.S. Supreme Court, 30 Jun 1975, 422 US 806

[Faretta (422 US 806)]

39, 42–43

91. Illinois v. Allen, U.S. Supreme Court, 31 Mar 1970, 397 US 337

[Allen (397 US 337)]

41, 43

MEMORIAL for DEFENSE COUNSEL

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92. McKaskle v. Wiggins, U.S. Supreme Court, 24 Jan 1984, 465 US 168,

[McKaskle (465 US 168)]

42

93. Re Bo Xilai, Bow Street Magistrate's Court, 8 Nov 2005, 128 ILR 713

[Bo Xilai (128 ILR 713)]

59

94. Re Mofaz, Bow Street Magistrate's Court, 12 Feb 2004, 128 ILR 709

[Mofaz (128 ILR 709)]

59

MEMORIAL for DEFENSE COUNSEL

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INTERNATIONAL ORGANIZATIONS' DOCUMENTS

UNITED NATIONS DOCUMENTS

95. Agreement between the United Nations and the Government of Sierra Leone

on the Establishment of a Special Court for Sierra Leone,

16 Jan 2002, 2178 UNTS 137 [SCSL Statute]

38, 40

96. Agreement between the United Nations and the Royal Government of

Cambodia concerning the prosecution under Cambodian law of crimes

committed during the period of Democratic Kampuchea, 6 Jun 2003

(as amended 2004), 2329 UNTS 117 [ECCC Statute]

40

97. Declaration on Principles of International Law concerning Friendly

Relations and Cooperation among States in accordance with the Charter of

the United Nations, in: General Assembly Resolution 2625(XXV), Annex, 24

Oct 1970, A/RES/2625(XXV) [DFR]

47

98. General comment on the implementation of article 3 of the Convention in the

context of article 22 in: Report of the Committee against Torture, Annex IX,

Official Records of the General Assembly, Fifty-third session, Suppl. No. 44,

1998, UN Doc. A/53/44 [UN Doc. A/53/44]

54

99. Compilation of General Comments and General Recommendations Adopted

by Human Rights Treaty Bodies, 12 May 2003, HRI/GEN/1/Rev.6

[HRI/GEN/1/Rev.6]

44

100. Elements of Crimes, 2 Nov 2000 (as amended 2010), PCNICC/2000/1/Add.2

[EOC]

45, 48, 50, 57

101. Rules of Procedure and Evidence, 2 Nov 2000 (as amended 2016),

PCNICC/2000/1/Add.1 [RPE] 35–38, 40–42

102. Statute for the International Criminal Tribunal for Rwanda, 8 Nov 1994

(as amended 2009), S/RES/955 (1994) [ICTR Statute] 38, 40

103. Statute of the International Criminal Tribunal for the Former Yugoslavia, 25

May 1993 (as amended 2009), S/RES/827 (1993) [ICTY Statute] 38, 40

MEMORIAL for DEFENSE COUNSEL

-19-

104. Statute of the Special Tribunal for Lebanon, 30 May 2007, S/RES/1757

(2007) [STL Statute] 38, 40

INTERNATIONAL CRIMINAL COURT DOCUMENTS

105. Resolution ICC-ASP/12/Res.7, Amendments to the Rules of Procedure and

Evidence, 27 Nov 2013, ICC-ASP/12/Res.7 [ICC-ASP/12/Res.7] 36

106. Factsheet on The Defence, ICC-PIDS-FS-08-001/13_Eng [ICC, Defence

Factsheet]

42

107. Regulations of the Court, 26 May 2004, ICC-BD/01-01-04 [ROC] 40

PREPARATORY WORKS

108. Bureau: proposal regarding part 2, A/CONF.183/C.1/L.59, in: Official

Records of the United Nations Diplomatic Conference of Plenipotentiaries on

the Establishment of an International Criminal Court (15 June–17 July 1998),

UN Doc. A/CONF.183/13, Volume III, p. 212 [Bureau Proposal,

UN Doc. A/CONF.183/C.1/L.59]

57

109. Draft Statute for the International Criminal Court, in: Report of the

Preparatory Committee on the Establishment of an International Criminal

Court, 1998, UN Doc. A/CONF.183/2 [Draft Statute, UN Doc.

A/CONF.183/2]

58

110. Draft Code of Crimes against the Peace and Security of Mankind, in: Report

of the International Law Commission on the work of its forty-sixth session (2

May–22 July 1994), 1994, UN Doc. A/49/10 [Draft Code, UN Doc. A/49/10]

57

111. Immunity of State Officials from Foreign Criminal Jurisdiction in: Report of

the International Law Commission on the work of its sixtieth session

(5 May–6 June and 7 July-8 August 2008), 2008, UN Doc. A/63/10

[UN Doc. A/63/10]

58

MEMORIAL for DEFENSE COUNSEL

-20-

112. Preliminary report on immunity of State officials from foreign criminal

jurisdiction by Roman Anatolevich Kolodkin, Special Rapporteur,

29 May 2008, UN Doc. A/CN.4/601 [Kolodkin's Report]

59

OTHER DOCUMENTS

113. ASEAN Human Rights Declaration, 18 Nov 2012 [AHRD] 42

114. Directive (EU) 2016/343 of the European Parliament and of the Council of 9

March 2016 on the strengthening of certain aspects of the presumption of

innocence and of the right to be present at the trial in criminal proceedings,

9 Mar 2016 [Directive 2016/343/EU]

39

115. Guide on Article 6 of the European Convention on Human Rights, Right to a

fair trial (criminal limb), 31 Aug 2020 [ECtHR, Guide] 42

116. Handbook on European law relating to access to justice, 2016 [EU Access

Handbook]

40

117. Global Financial Markets Policy Responses to COVID-19, Mar 2020

[OECD, Financial Responses]

47

118. OECD-FAO Agricultural Outlook 2020-2029, FAO, Rome/OECD

Publishing, Paris, 2020 [OECD, Agricultural Outlook] 46

119. A Joint Statement on Tourism and COVID-19 – UNWTO and WHO Call for

Responsibility and Coordination, 27 Feb 2020 [WHO, Statement] 48

MEMORIAL for DEFENSE COUNSEL

-21-

BOOKS

120. Ackerman, O'Sullivan, Practice and Procedure of the International Criminal

Tribunal for the Former Yugoslavia With Selected Materials from the

International Criminal Tribunal for Rwanda, Kluwer Law International,

The Hague, 2000 [Ackerman (2000)]

37

121. Ambos, Treatise on International Criminal Law, Volume III: International

Criminal Procedure, Oxford University Press, New York, 2016

[Ambos (2016)]

36

122. Armatta, Twilight of Impunity: The War Crimes Trial of Slobodan Milosevic,

Duke University Press, Durham (2010) [Armatta (2010)] 44

123. Bassiouni (ed.), International Criminal Law, Volume I: Sources, Subjects and

Contents, 3rd Edition, Brill, Leiden, 2008 [Bassiouni (2008)]

35

124. Boas, Bischoff, Reid, International Criminal Law Practitioner Library,

Volume II, Elements of Crimes under International Law, Cambridge

University Press, New York, 2009 [Boas (2009)]

49

125. Bohlander, Boed, Wilson (eds.), Defense in International Criminal

Proceedings, Cases, Materials and Commentary, Transnational Publishers,

New York, 2006 [Bohlander (2006)]

36

126. Cape, Namoradze, Effective Criminal Defence in Eastern Europe, 2012

[Cape (2012)]

43

127. Cassese, Acquaviva, International Criminal Law: Cases and Commentary,

Oxford University Press, Oxford, 2013 [Cassese, Cases (2013)] 42

128. Cassese, Gaeta, Cassese's International Criminal Law, 3rd Edition,

Oxford University Press, Oxford, 2013 [Cassese, Cassese's (2013)] 48

129. Cormier, The Jurisdiction of the International Criminal Court over Nationals

of Non-States Parties, Cambridge University Press, 2020 [Cormier (2020)] 59–60

MEMORIAL for DEFENSE COUNSEL

-22-

130. Cryer, An Introduction to International Criminal Law and Procedure, 3rd

Edition, Cambridge University Press, Cambridge, 2014 [Cryer (2014)] 36, 42, 44

131. Fox, Webb, The Law of State Immunity, 3rd Edition, Oxford University Press,

New York, 2013 [Fox (2013)] 59–60

132. Galand, UN Security Council Referrals to the International Criminal Court:

Legal Nature, Effects and Limits, Brill, Leiden (2018) [Galand (2018)] 59–60

133. Kahneman, Thinking, Fast and Slow, Penguin Books (2012)

[Kahneman (2012)]

51

134. Klamberg (ed.), Commentary on the Law of the International Criminal Court,

TOAEP, Brussels, 2017 [Klamberg (2017)] 36–37

135. Lee (ed.), The International Criminal Court, The Making of the Rome Statute,

Issues, Negotiations, Results, Kluwer Law International, The Hague, 1999

[Lee (1999)]

57

136. McBride, Human rights and criminal procedure, The case law of the

European Court of Human Rights, Council of Europe Publishing, Strasbourg,

2009 [McBride (2009)]

35

137. Ryngaert, Jurisdiction in International Law, 2nd Edition, Oxford University

Press, New York, 2015 [Ryngaert (2015)] 56

138. Schabas, The European Convention on Human Rights, A Commentary,

Oxford University Press, New York, 2017 [Schabas (2017)] 38, 42

139. Schabas, The International Criminal Court, A Commentary to the

Rome Statute, Oxford University Press, New York, 2010 [Schabas (2010)] 48

140. Stahn (ed.), The Law and Practice of the International Criminal Court,

Oxford University Press, New York, 2015 [Stahn (2015)] 36–37

141. Stahn, A Critical Introduction to International Criminal Law,

Cambridge University Press, Cambridge, 2019 [Stahn (2019)] 48, 51, 59, 61

MEMORIAL for DEFENSE COUNSEL

-23-

142. Triffterer, Ambos (eds.), The Rome Statute of the International Criminal

Court, A Commentary, 3rd Edition, Hart Publishing, Oxford, 2016

[Triffterer (2016)]

36–37, 49

143. Vagias, The Territorial Jurisdiction of the International Criminal Court,

Cambridge University Press, Cambridge, 2014 [Vagias (2014)] 57

144. Van Alebeek, The Immunity of States and Their Officials in International

Criminal Law and International Human Rights Law, Oxford University Press,

New York, 2008 [Van Alebeek (2008)]

59–61

145. Van Kempen, Criminal Law and Human Rights, Ashgate Publishing,

Farnham, 2014 [Van Kempen (2014)]

36

MEMORIAL for DEFENSE COUNSEL

-24-

ARTICLES

146. Akande, "Head of State Immunity is a Part of State Immunity: A Response to

Jens Iverson", EJIL:Talk!, 27 Feb 2012 [Akande (2012)] 60

147. Akande, "International Law Immunities and the International Criminal

Court", The American Journal of International Law, vol. 98, no. 3,

pp. 407-433 (2004) [Akande (2004)]

60

148. Akande, Shah, "Immunities of State Officials, International Crimes, and

Foreign Domestic Courts", The European Journal of International Law,

vol. 21, no. 4, pp. 815-852 (2011) [Akande (2011)]

59

149. Ambos, "Misguided criticism", D+C, no. 12, pp. 465-467 (2013)

[Ambos (2013)]

36

150. Corsi, "An Argument for Strict Legality in International Criminal Law",

Georgetown Journal of International Law, vol. 49, no. 4, pp. 1321-1381

(2018) [Corsi (2018)]

35

151. Harvard Law Review, "The New Rule of Lenity", Harvard Law Review,

vol. 119, no. 8, pp. 2420-2441 (2006) [Harv. Law Rev (2006)] 49

152. Islam, Pitafi, "Panic buying in the COVID-19 pandemic: A multi-country

examination", Journal of Retailing and Consumer Services, vol. 59 (2021)

[Islam (2021)]

47

153. Kolb, "Jurisdictional Immunities of Ministers of Defense", Swiss Review

of International and European Law, no. 2, pp. 179-187 (2014) [Kolb (2014)]

58–59

154. Kremens, "The protection of the accused in international criminal law

according to the Human Rights Law Standard", Wroclaw Review of Law,

Administration & Economics, vol. 1, no. 2, pp. 26-48 (2011)

[Kremens (2011)]

36

155. Maillart, "Article 12(2)(a) Rome Statute: The Missing Piece of the

Jurisdictional Puzzle", EJIL:Talk!, 7 Aug 2014 [Maillart (2014)] 56–57

MEMORIAL for DEFENSE COUNSEL

-25-

156. Maillart, "The limits of subjective territorial jurisdiction in the context of

cybercrime", ERA Forum, vol. 19, no. 3, pp. 369-373 (2019)

[Maillart (2019)]

56

157. Nasrallah, "During a viral pandemic, anxiety is endemic: The psychiatric

aspects of COVID-19", Current Psychiatry, vol. 19, no. 4, pp. e3-e5 (2020)

[Nasrallah (2020)]

47

158. Nicomedes, Avila, "An analysis on the panic during COVID-19 pandemic

through an online form" Journal of Affective Disorders, vol. 276, pp. 14-22

(2020) [Nicomedes (2020)]

47

159. Owusu-Bempah, "Understanding the barriers to defendant participation in

criminal proceedings in England and Wales", Legal Studies, vol. 40, no. 4,

pp. 609-629 (2020) [Owusu-Bempah (2020)]

44

160. Parrish, Holmes, Morens, "Cross-Species Virus Transmission and the

Emergence of New Epidemic Diseases", Microbiology and Molecular

Biology Reviews, vol. 72, no. 3, pp. 457-470 (2008) [Parrish (2008)]

46

161. Post, Panis, "Tyranny on Trial: Personality and Courtroom Conduct of

Defendants Slobodan Milosevic and Saddam Hussein", Cornell International

Law Journal, vol. 38, no. 3, pp. 823-836 (2005) [Post (2005)]

44

162. Roese, D. Vohs, "Hindsight Bias", Perspectives on Psychological Science,

vol. 7, no. 5, pp. 411-426 (2012) [Roese (2012)] 51

163. Sadat, "Crimes Against Humanity in the Modern Age", The American Journal

of International Law, vol. 107, no. 2, pp. 334-377 [Sadat (2013)] 60

164. Sanger, "Immunity of State Officials from the Criminal Jurisdiction of a

Foreign State", The International and Comparative Law Quarterly, vol. 62,

no. 1, pp. 193-224 (2013) [Sanger (2013)]

58–59

165. Scharf, "Chaos in the Courtroom: Controlling Disruptive Defendants and

Contumacious Counsel in War Crimes Trials", Case Western Reserve Journal

of International Law, vol. 39, no. 1, pp. 155-170 (2007) [Scharf (2007)]

42–44

MEMORIAL for DEFENSE COUNSEL

-26-

166. Scharf, "Do Former Leaders Have an International Right to Self-

Representation in War Crimes Trials?" Ohio State Journal on Dispute

Resolution, vol. 20, no. 1, pp. 3-42 (2005) [Scharf (2005)]

43

MEMORIAL for DEFENSE COUNSEL

-27-

MISCELLANEOUS

ICC MOOT COURT COMPETITION

167. [Fictional] Report of the World Health Organization On the viral outbreak in

the State of Eassos, 21 April 2020 [WHO Report]

30, 46–48, 50,

52–55

168. Prosecutor v. Dragone Goodrider of Wessos, Pre-Trial Chamber VI,

Confirmation of Charges against Defendant Dragone Goodrider of Wessos,

15 Sep 2020 [Impugned Decision]

39, 41–42, 44,

47–48, 56,

59–60

NATIONAL LEGISLATION

169. Code of Criminal procedure of Japan (1948, as amended 2011) [JP CrimPro] 40

170. Code of Criminal Procedure of the Azerbaijan Republic (2000)

[AZ CrimPro]

40

171. Code of Criminal Procedure of the Federal Republic of Germany

(1987, as amended 2019) [DE CrimPro] 40

172. Code of Criminal Procedure of the Kingdom of Netherlands

(1881, as amended 2012) [NL CrimPro] 40

173. Criminal Procedure Act 51 of 1977 of the Republic of Namibia

(1977, as amended 2017) [NA CrimPro]

40

174. Criminal Procedure Act 51 of 1977 of the Republic of South Africa

(1977, as amended 2018) [ZA CrimPro] 40

175. Criminal Procedure Act of the Republic of Croatia (2008, as amended 2019)

[HR CrimPro]

40

176. Criminal Procedure Code of Argentine Republic (2014, as amended 2019)

[AR CrimPro]

40

177. Criminal Procedure Code of Montenegro (2009, as amended 2015)

[ME CrimPro]

40

MEMORIAL for DEFENSE COUNSEL

-28-

178. Criminal Procedure Code of the Republic of Kazakhstan, excerpts (2014)

[KZ CrimPro]

40

179. Criminal Procedure Code of the Socialist Republic of Vietnam (2015)

[VN CrimPro]

40

180. Criminal Procedure Law of the People's Republic of China, excerpts

(as amended 2012) [CN CrimPro] 40

181. Criminal-Procedural Code of the Russian Federation (2001, as amended

2012) [RU CrimPro]

40

182. Egypt's Constitution of 2014 [EG Constitution] 40

183. Federal Court Criminal Proceedings Rules of Australia (2016)

[AU CrimPro]

40

184. Federal Rules of Criminal Procedure (1944, as amended 2020) [US CrimPro] 40

185. Revised Rules of Criminal Procedure of the Republic of Philippines,

A.M. No. 00-5-03-SC (2000) in: Revised Rules of Court, Rule 110-127

[PH CrimPro]

40

186. Rules of the Supreme Court of Canada, SOR/2002-156 (as amended 2019)

[CA Rules]

40

187. The Constitution of Sierra Leone, Act No. 6 (1991) [SL Constitution] 40

188. The Criminal Procedure Rules 2020 of England and Wales,

No. 759, L. 19 (2020) [UK CrimPro]

40

OTHER

189. Al-Hamoudi, Criminal Defense in Saudi Arabia: An Empirical Study of the

Practice of Criminal Defense in Saudi Arabia, PhD thesis, University of

Washington, 2014 [Al-Hamoudi (2014)]

40

190. Berkhout, Popularity of poultry continues globally, Poultry World,

20 Jul 2020 [Berkhout (2020)] 46

MEMORIAL for DEFENSE COUNSEL

-29-

191. Brophy Marcus, Fear and panic become just as dangerous as the pathogen

itself, 15 Apr 2020 [Brophy Marcus (2020)] 46

192. Charter of the International Military Tribunal for the Far East, in: Special

proclamation by the Supreme Commander for the Allied Powers,

19 Jan 1946 (as amended 1946), US Department of State, TIAS 1589

[Tokyo Charter]

40

193. Crowther (ed.), Oxford Advanced Learner's Dictionary of Current English,

5th Edition, Oxford University Press, Oxford (1995) [Oxford Advanced

Dictionary (1995)]

39

194. Foakes, Immunity for International Crimes? Developments in the Law on

Prosecuting Heads of State in Foreign Courts, Chatham House briefing

paper, IL BP 2011/02 (2011) [Foakes (2011)]

60

195. Garner, Black's Law Dictionary, 9th Edition, West, St. Paul (2009)

[Black's Law Dictionary (2009)]

38–39

196. Law (ed.), Oxford Dictionary of Law, 9th Edition, Oxford University Press,

New York (2018) [Oxford Dictionary of Law (2018)] 38

197. Marsh, Escape to the country: how Covid is driving an exodus from

Britain's cities, The Guardian, 26 Sep 2020 [Marsh (2020)] 47

198. McKeever, Coronavirus is spreading panic. Here's the science behind why.,

National Geographic, 17 Mar 2020 [McKeever (2020)] 46

199. Piper, How deadly pathogens have escaped the lab – over and over again,

Vox, 20 Mar 2019 [Piper (2019)] 46

200. Wheeler, The Right to be Present at Trial in International Criminal Law,

PhD thesis, Middlesex University, London, 2018 [Wheeler (2018)] 35–36, 38–39

MEMORIAL for DEFENSE COUNSEL

-30-

STATEMENT OF FACTS

Background

Wessos and Eassos are neighbouring States and UN members. Eassos is a party to

ICCSt; Wessos is not. Relationship between them is strained.

Defendant is a national of Wessos. He graduated from Judge Advocate General School

and has been Minister of Defense of Wessos for the past eleven years.

The outbreak of the H5N8 virus and search for a vaccine

In summer of 2019, both States were hit by the H5N8 virus which caused half of poultry

and wild birds to perish.

In Oct 2019, Defendant asked Dr. Rayder to develop a vaccine that will protect Wessos

population from a possible mutation. Director agreed and requested funding to upgrade

the lab. Defendant notified him that additional funding was not available.

The outbreak of a new strain of virus

On 27 Feb 2020, Rayder informed Defendant that two scientists showed signs of flu-

like symptoms and were self-quarantining, but had previously travelled near the border

on a crowded bus.

Three days later he notified the Defendant of their deaths and of occurrence of similar

symptoms among families and other scientists.

The measures and casualties

On 2 Mar 2020, Defendant convened the NSC and informed the members of the

outbreak. He told them that clean-up crews have already been sent to burn the bodies

and asked for further recommendations. He turned down the idea of notifying WHO or

Eassos to avoid causing a public panic, but agreed to all other proposed measures.

On 21 Apr 2020, WHO issued a report containing leaked e-mails between Rayder and

Defendant and NSC meeting minutes. WHO reported that the virus was highly infectious

and deadly and by mid-April 250,000 residents of Eassos died and many more suffered

from severe illness. It concluded that Defendant's actions contained the outbreak in

Wessos, but virus had already spread to Eassos.

MEMORIAL for DEFENSE COUNSEL

-31-

Proceedings before ICC

On 1 Jun 2020, Eassos referred the matter to ICC. PTC granted Prosecution's Request

for the Issuance of a Summons. Defendant notified ICC of his intention to represent

himself.

On 1 Aug 2020, he voluntarily appeared before PTC. PTC rejected his Request for

Interim Release. Defendant disrupted proceedings and was appointed a

stand-by counsel against his will.

At the Confirmation Hearing on 1 Sep 2020, Defendant disrupted proceedings and was

excluded to a remote location to observe proceedings via a video-link. He was allowed

to communicate with counsel, but not directly with the Court.

PTC confirmed charges. He has been granted Leave to Appeal and the matter is pending

before AC, which sought submissions on following issues.

MEMORIAL for DEFENSE COUNSEL

-32-

ISSUES

Whether Defendant was unlawfully deprived of his right to be present at the Confirmation Hearing

and his right to self-representation?

Whether charged offenses can be prosecuted as "other inhumane acts" and whether prosecution met

its duty to establish with sufficient evidence that there were substantial grounds to believe that

Defendant ordered the commission of such a crime?

Whether ICC has jurisdiction to prosecute Defendant, considering that all of his actions related to

charges of other inhumane acts occurred in his State of nationality, Wessos, which is not a party to

ICCSt?

MEMORIAL for DEFENSE COUNSEL

-33-

SUMMARY OF ARGUMENTS

Defendant was unlawfully deprived of his right to be present at the Confirmation Hearing and

of his right to self-representation.

The PTC has no authority to limit Defendant's fundamental rights.

The Defendant never explicitly nor implicitly waived his right to be present at the

Confirmation Hearing as provided by Art. 61(2)(a) ICCSt.

The PTC did not adequately warn the Defendant before limiting his right to self-

representation.

Imposing a stand-by counsel was unnecessary and disproportionate, and excluding the

Defendant from the Confirmation Hearing was not in the interest of justice.

Charged offenses cannot be prosecuted as "other inhumane acts" and the Prosecution did not

meet its duty to establish with sufficient evidence that there are substantial grounds to believe

that the Defendant ordered the commission of a crime.

The perpetrators did not inflict suffering or injury by means of inhumane acts.

Alternatively, the acts in question are not of a character similar to other CAH.

The perpetrators did not know that their conduct could be, nor they intended it to be,

part of a widespread or systematic attack directed against a civilian population.

The Defendant was not aware that a crime could be committed in execution of his orders.

The Prosecution did not meet the evidentiary burden to establish that there are

substantial grounds to believe that the Defendant ordered the commission of a crime.

MEMORIAL for DEFENSE COUNSEL

-34-

ICC has no jurisdiction to prosecute the Defendant.

The preconditions for the exercise of jurisdiction under Art. 12(2)(a) ICCSt are not

fulfilled.

Alternatively, the Defendant enjoys personal immunity from prosecution and the Court

cannot ignore it by applying the principle of irrelevance of official capacity without

Wessos's consent.

MEMORIAL for DEFENSE COUNSEL

-35-

WRITTEN ARGUMENTS

[A] DEFENDANT WAS UNLAWFULLY DEPRIVED OF HIS RIGHT TO BE PRESENT AT THE

CONFIRMATION HEARING AND OF HIS RIGHT TO SELF-REPRESENTATION

Defense submits that (1)0 PTC has no authority to limit fair trial rights, (2) Defendant never

explicitly nor implicitly waived his right to be present and (3) PTC did not adequately warn the

Defendant before limiting his right to self-representation. In any event, (4) imposing a stand-by

counsel was unnecessary and disproportionate, and excluding the Defendant from the courtroom

was not in the interest of justice.

(1) PTC HAS NO AUTHORITY TO SANCTION DISRUPTIVE BEHAVIOUR BY LIMITING

ANY OF DEFENDANT'S FAIR TRIAL RIGHTS

Art. 67(1)(d) ICCSt entitles the Defendant to minimum guarantees of a fair trial, which

can only be derogated from with explicit statutory authorisation or through accused's

unequivocal waiver.1

1.1 PTC cannot limit Defendant's fair trial rights on the basis of ICCSt or RPE

ICCSt and RPE contain no provisions authorizing PTC to sanction disruptive behaviour.

The Judges shall apply and interpret the law, not create it – the purpose of interpretative

activity is to impart meaning to existing law.2 When ICCSt contains a lacuna, analogy

or extensive interpretation should not be used against the Defendant. Principle of legality

limits prosecutorial and judicial discretion and prohibits extension of the criminal norm

beyond its intended legislative scope.3 In absence of clear regulations, there are no

safeguards against possible abuses,4 which places the Defendant in an unfair position.5

PTC does not have the same level of authority to limit Defendant's fair trial rights at the

Confirmation Hearing as TC, because provisions regulating misconduct are included

only in the Trial section of the ICCSt.6 RPE provisions also apply only to misconduct

during Trial.7 Unlike at Trial, a Confirmation Hearing can be held in Defendant's

1 Wheeler (2018), 64.

2 Katanga TJ, §52.

3 Bassiouni (2008), 98.

4 McBride (2009), 126–127; Bykov v. RU, §81.

5 Corsi (2018), 1335.

6 Art. 71 ICCSt (Part VI).

7 Chapter 9, Section II RPE ("under article 71").

MEMORIAL for DEFENSE COUNSEL

-36-

absence only if he waived his right to be present, fled or cannot be found,8 and not

because of disruptive behaviour.9 Moreover, while ICCSt allows the Defendant to waive

his right to be present at the Confirmation Hearing, there exists no equivalent provision

for the Trial. The distinction was intentional.10 The difference between the two

proceedings decreased through case-law11 and political pressure,12 resulting in adoption

of RPE amendments which now provide for the possibility of waiving presence at

Trial,13 while no such amendments were adopted to accord PTC any authority to sanction

misbehaviour. Therefore, ICCSt accords the authority to sanction a misbehaving

Defendant exclusively to TC, and a contrario does not accord such authority to PTC.

1.2 Alternatively, TC's authority must not be extended to the PTC

ICCSt distinguishes between "investigation" rights (Art. 55) and "trial" rights (Art. 67),

and between the level of authority of PTC and TC.14 At the Confirmation Hearing, even

though it is structurally placed within the Investigation part of ICCSt, a suspect enjoys

"trial" rights (Art. 67),15 not only "investigation" rights (Art. 55), because he is more

vulnerable than during the Investigation (since he is being placed in the hands of the

Court and in transition from suspect to accused16).

The purpose of the Confirmation Hearing is to identify cases which should go to Trial

in order to ensure judicial economy, efficiency and protection of rights by verifying that

accusations go to Trial only when justified by sufficient evidence.17 The reason for the

difference in PTC's and TC's authority is that the Defendant's ability to mount a defense

is of utmost importance in the early stages of criminal proceedings – his active role is

crucial18 at this last stage where he can prevent a potentially unfounded Trial against

him. An early defense can have the strongest impact on the course of the proceedings

8 Art. 61(2) ICCSt.

9 Art. 63(2) ICCSt.

10 Banda Absentia, §26, 30; Wheeler (2018), 122–123; Triffterer (2016), 1564–1567; Van Kempen (2014), 177.

11 Katanga, Banda, Jerbo, Kenyatta, Ruto.

12 Klamberg (2017), 497; Ambos (2013); Ambos (2016), 162–163; Wheeler (2018), 125–126.

13 ICC-ASP/12/Res.7, 53–54; Rules 134 ter and 134 quater RPE.

14 E.g. Arts. 57, 64 ICCSt.

15 Rule 121(1) RPE.

16 Bohlander (2006), 450; Cryer (2014), 431; Kremens (2011), 31.

17 Mbarushimana Charges Appeal, §39; Yekatom Charges, §16; Klamberg (2017), 440; Stahn (2015), 892, 914.

18 E.g. Gbagbo Schedule, §9.

MEMORIAL for DEFENSE COUNSEL

-37-

and must not be unjustly restricted, especially when such restrictions would run counter

to the intent of the drafters.19 Therefore, even if "trial" rights leak into the Confirmation

Hearing, the TC's authority to limit them does not and should not be extended.

The Confirmation Hearing, due to its specific nature, unique only to the ICC, is not

comparable to confirmation proceedings of other courts.20 It was established as a hearing

where the person charged has the right to be present and contest the evidence.21

Additionally, the ICCSt's drafters did not import ICTY/ICTR procedures, and instead

constituted a new Confirmation Hearing, acceptable to different delegations.22

Procedural regimes and interpretations of other systems or courts are therefore

inapplicable,23 and cannot guide the Chamber in determining the object and purpose of

the Confirmation Hearing because of their fundamentally incomparable nature.24

1.3 In any event, PTC has no authority to limit Defendant's right to be present

PTC does not have the same authority as TC to limit the Defendant's right to be present.

Right to be present at the Confirmation Hearing is mandated by Art. 61(2) ICCSt, which

posits that a Confirmation Hearing can be held in the absence of the Defendant only if

he waived his right to be present, fled or cannot be found. On the other hand, right to be

present at Trial is mandated by Art. 63 ICCSt and Rules 134 ter and quater RPE, which

provide that a Trial can be held in the absence of the Defendant only if he disrupts it or

requests to be excused. Art. 63(2) ICCSt also explicitly states that (only) the TC may

remove the accused. PTC should not apply exceptions from Art. 63(2) ICCSt, because

they are expressly mandated by a different provision – Art. 61(2) ICCSt,25 not

envisaging disruptive behaviour as a possible ground for exclusion at the Confirmation

Hearing.

19 Delalić Notes, §24; Ackerman (2000), 518.

20 Klamberg (2017), 440; Stahn (2015), 910.

21 Mbarushimana Charges Appeal, §43; 61(1) and 61(6) ICCSt.

22 Mbarushimana Charges Appeal, §43.

23 Triffterer (2016), 1533.

24 Ruto Charges, §58; Kenyatta Charges, §72.

25 Cf. Ruto Excusal, §60.

MEMORIAL for DEFENSE COUNSEL

-38-

(2) DEFENDANT WAS UNLAWFULLY DEPRIVED OF HIS RIGHT TO BE PRESENT AT THE

CONFIRMATION HEARING

2.1 Defendant never explicitly waived his right to be present at the Confirmation Hearing

Since the presence during the Confirmation Hearing is a fundamental Defendant's

right,26 a waiver of this right cannot be implied. Rule 124(1) RPE requires a written

request and excludes any possibility for implicit waiver. Even evasion is not meant to

be seen as an implicit waiver, because Art. 61(2) ICCSt distinguishes between an explicit

waiver27 and situations where a defendant fled or cannot be found.28

PTC may deliberate on (and even deny29) a Defendant's written request.30 The fact that

both, the Defendant (expressing his wish in writing) and PTC (allowing or denying it),

need to act, signifies that presence at the Confirmation Hearing is the rule31 and waiver

an exception. A special meaning to a term can be given only if it is established that the

parties intended such a meaning.32 Any intended interference with fundamental rights

must be clearly manifested by unmistakable and unambiguous language.33

According to Rule 124(2) RPE the PTC must ensure the Defendant actually understood

the right to be present and the consequences of waiving it before holding a Confirmation

Hearing without his presence. The rule thus protects the Defendant's right to be present

at the Confirmation Hearing, not restricts it.34

2.2 Defendant's behaviour cannot be regarded as an implicit waiver of the right to be present

Waiver is a voluntary relinquishment of, or an act of refraining from asserting, a legal

right.35 Waiving of rights requires active steps and exceptions, where passiveness or

certain behaviour may be interpreted as an (implicit) waiver, need to be construed

26 Arts. 67 ICCSt, 21 ICTY Statute, 20 ICTR Statute, 17 SCSL Statute, 16 STL Statute, 14(3)(d) ICCPR;

Ruto Excusal, §35; Kenyatta Excusal, §124; Lagerblom v. SE, §49; Schabas (2017), 310; Wheeler (2018), 13.

27 Art. 61(1)(a) ICCSt.

28 Art. 61(1)(b) ICCSt.

29 E.g. Ruto Waiver, §12.

30 Rule 124(1) RPE.

31 E.g. Gbagbo Schedule, §9.

32 Art. 31(4) VCLT; Kenya Authorization, §19.

33 Coco (1994 HCA 15), §10.

34 Ruto Excusal, §37; Katanga Transcript, 8; Nahimana AJ, §107.

35 "Waiver" in: Black's Law Dictionary (2009), 1717; Oxford Dictionary of Law (2018), 723.

MEMORIAL for DEFENSE COUNSEL

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narrowly to avoid abuse, which is why an implied waiver needs to be evidenced by a

party's decisive, unequivocal conduct reasonably inferring the intent to waive.36

A waiver must always be free, informed and unequivocal.37 An unequivocal waiver is

free from uncertainty, having only one possible meaning as to the Defendant's

intentions.38 Despite disruptive behaviour, the Defendant had not unequivocally waived

his right to be present and his removal from the courtroom meant that he was not in a position

to exercise that right.39

The Defendant stated multiple times that he wanted to represent himself.40 Because the right

to be present and the right to self-representation are inseparably linked, the Defendant must

be able to attend the proceedings in person (not via a video-link where forbidden from

making statements to the court41) to be able to effectively exercise his self-representation.

Since the Defendant wanted to be present in the courtroom, his disruptive behaviour cannot

be regarded as a free and unequivocal implied waiver of his right.

36 "Implied waiver" in: Black's Law Dictionary (2009), 1717.

37 Wheeler (2018), 14, 24, 114–115; Ruto Excusal Appeal, §51; Stanković Self-representation, §9;

Nahimana AJ, §108–109; Directive 2016/343/EU, §35; Colozza v. IT, §28; Sejdovic v. IT, §86. Zana v. TR, §70;

Faretta (422 US 806), 835.

38 "Unequivocal" in: Black's Law Dictionary (2009), 1667; Oxford Advanced Dictionary (1995), 1301.

39 Idalov v. RU, §178.

40 Impugned Decision, §16-17.

41 Idem., §19.

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(3) DEFENDANT WAS UNLAWFULLY DEPRIVED OF HIS RIGHT TO SELF-

REPRESENTATION

3.1 Right to self-representation is one of the fundamental fair trial rights in criminal

proceedings

The right to self-representation is one of the fundamental fair trial rights of the Defendant

included in Art. 67(1)(d) ICCSt. According to Rule 121(1) RPE, this right is also

recognized in proceedings before and at the Confirmation Hearing. ICCSt does not

define exceptions to the right to self-representation.

However, the right to self-representation is also a part of CIL,42 and where national legal

systems envisage appointing counsels, national codes explicitly define exceptions (e.g.

to protect the rights of defendants, if so required for the effective administration of

justice, on appeal, to prevent abuse, to protect witnesses, etc.).43 ICCSt, RPE and ROC

do not provide such clear exceptions.44

The imposition of defence counsel on an unwilling Defendant would effectively deprive

him of the possibility of putting forward a defence.45 The Judges should not be creating

exceptions not envisioned by States Parties nor specifically included in the ICCSt in an

unmistakable and unambiguous language.

3.2 PTC did not adequately warn the Defendant that continuing with his behaviour would lead

to a limitation of his right to self-representation spanning even subsequent proceedings

Right to self-representation is a parallel statutory right to the right to be present.46

Because of the fundamental nature of both rights, Defendant shall be duly warned before

restricting either.47 Since the Defendant has to be explicitly warned before restricting his

right to be present,48 he must also be explicitly warned before restricting his right to self-

42 Milošević Transcript, 18; Arts. 14(3)(d) ICCPR, 6(3)(c) ECHR, 8(2)(d) ACHR, 16(d) Nuremberg Charter,

9(e) and (b) Tokyo Charter, 21(4)(d) ICTY Statute, 20(4)(d) ICTR Statute,17(3)(d) SCSL Statute, 16(4)(d) STL Statute,

35(2)(d) ECCC Statute; Rule 11(c)(1) US CrimPro, 46.1 UK CrimPro, 15(2) CA Rules, 1.27 AU CrimPro, Rule 115 PH

CrimPro, Section 73(2C) ZA CrimPro, Section 160(1) NA CrimPro, Art. 23(5)(c) SL Constitution, Section 140(2) DE

CrimPro, Art. 37 JP CrimPro, Art. 16(1) RU CrimPro, Art. 12 ME CrimPro, Art. 5(1) HR CrimPro, Art. 19.4.4. AZ

CrimPro, Section 41(1) NL CrimPro, Art. 26(1) KZ CrimPro, Art. 32 CN CrimPro, Art. 6 AR CrimPro, Art. 16(1) VN

CrimPro, Art. 98 EG Constitution, Al-Hamoudi (2014), 1.

43 EU Access Handbook, 89–90.

44 Arts. 55(2)(c), 56(2)(d), 61(1)(d) and 61(2) ICCSt; Rules 47(2), 117(2), 134 ter and 134 quater RPE; Reg. 76 ROC.

45 Milošević Denying Counsel, §24.

46 Milošević Counsel Appeal, §13.

47 Šešelj Counsel Appeal, §23.

48 Rule 170 RPE.

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representation, in the form of an oral or written statement explaining the disruptive

behaviour,49 and of that, that if he persists, the consequence will be a restriction of the

right to self-representation.50

In the absence of ICCSt clauses giving PTC authority to sanction misconduct which

could serve as a general notice,51 the lack of clarity and safeguards against abuse put the

Defendant in an unfair position. At the conclusion of the proceedings on 1 Aug 2019,

the Defendant was not explicitly warned that continuing with his behaviour would be

sanctioned by restricting his rights (appointment of a standby counsel at all subsequent

proceedings), but merely "informed" of the appointment after the fact and without any

previous warning.52 This demonstrates how a lack of specific provisions caused a lack

of safeguards (that are in contrast explicitly provided for at Trial53) against potential

abuse.

3.3 In any event, Defendant could not have foreseen that his behaviour would lead to a

limitation of his right to self-representation

The Defendant's right to self-representation can be lawfully limited because of disruptive

behaviour only if the Defendant could reasonably have foreseen what the consequences

of his conduct would be.54 The disruptions must be "continuous"55 and circumstances

have to reach the level of substantial and persistent obstruction to the proper and

expeditious conduct of the trial.56

The Defendant behaved appropriately during the majority of his first appearance before

the PTC and only misbehaved at the very conclusion of the proceedings in a response to

a perceived unfair decision. An isolated incident does not give rise to "substantial and

persistent obstruction" that would warrant such a disproportionate restriction of the

Defendant's right to self-representation. As the restriction was laid down at the very

49 Idalov v. RU, §177–178; Şaman v. TR, §32–33; Pishchalnikov v. RU, §77–78; Dvorski v. HR, §100–101.

50 Šešelj Counsel Appeal, §26; Allen (397 US 337), 343, 350.

51 Šešelj Counsel Appeal, §26.

52 Impugned Decision, §17.

53 Rules 170 and 171 RPE.

54 Sejdovic v. IT, §87.

55 Art. 63(2) ICCSt.

56 Šešelj Counsel Appeal, §21.

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conclusion of the proceedings, it was not imposed to ensure the efficiency of the

proceedings.

The Defendant was not informed of the consequences he faced but was vaguely notified

that disruptive behaviour would not be tolerated.57 If there is no explicit ICCSt provision

allowing PTC to sanction misbehaviour, if there are disagreements as to the statutory

interpretation between jurists themselves,58 and if similar courts had in the past allowed

much greater disruptions of proceedings,59 he could not have reasonably foreseen the

restriction of his right to self-representation.60 He was also not afforded the opportunity

to change the circumstances to avoid surrendering those rights.61

Because the first appearance before ICC is conducted only in the presence of PTC,

Defendant and Prosecution,62 Defendant's behaviour posed no risk of harm to any other

participants.

(4) IN ANY EVENT, THE MEASURES WERE UNNECESSARY AND DISPROPORTIONATE

Right to fair trial guarantees the right to participate effectively63 which includes not only

the right to be present, but also the right to follow the proceedings effectively.64 Right

to defense is one of the minimum judicial guarantees,65 and is a key component of a fair

trial.66 It includes the right to self-representation.67 Defendant is entitled to preserve

actual control over the case he chooses to present without restriction to be able to

influence the outcome of proceedings.68 A restriction must pursue a sufficiently

important objective and must not affect the right more than necessary to achieve it.69

57 Impugned Decision, §19.

58 Idem., Dissent.

59 Hussein, Norman, Milošević, Šešelj, etc. Cryer (2014), 432; Scharf (2007), 161–162.

60 Cassese, Cases (2013), 72.

61 Šešelj Counsel Appeal, §23.

62 Rule 121(1) RPE.

63 Murtazaliyeva v. RU, §91; Lagerblom v. SE, §49; Stanford v. UK, §26; ECtHR, Guide, §136.

64 Lagerblom v. SE, §49; Stanford v. UK, §26; ECtHR, Guide, §136; Schabas (2017), 310.

65 Arts. 14(3)(d) ICCPR, 6(3)(c) ECHR, 47(2) and 48(2) EUC, 8(2)(d) ACHR, 7(1)(c) ACHPR, 20(1) AHRD.

66 ICC, Defence Factsheet.

67 Arts. 14(3)(d) ICCPR, 6(3)(c) ECHR, 8(1)(d) ACHR.

68 McKaskle (465 US 168), 169; Faretta (422 US 806), 813, 819; Mayzit v. RU, §78; Galstyan v. AM, §84.

69 Ruto Excusal Appeal, §61–62; Milošević Counsel Appeal, §17; Stanišić Course Appeal, §6; Zigiranyirazo IA, §14.

MEMORIAL for DEFENSE COUNSEL

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4.1 Imposing a stand-by counsel was unnecessary, disproportionate and prejudiced his rights

at subsequent hearings, including the Confirmation Hearing

The objective of ensuring expeditious proceedings was not endangered at the time of the

imposition of the unwanted counsel in the present case. Disruptive behaviour at the very

conclusion of the Defendant's first appearance before the PTC did not jeopardize (or

threatened to jeopardize) the decorum, efficiency and fairness of the proceedings to such

an extent that it would justify a near full deprivation of the right to self-representation

spanning even all future proceedings. In order to uphold the right to a fair trial, the

Chamber must ensure reasonably expeditious proceedings, not hasty ones while

impairing the very essence of Defendant's rights.70

Right to self-representation can only be limited in exceptional circumstances, as a last

resort and only for strictly required duration.71 The Defendant must be accorded a chance

to reclaim it.72 Briefly adjourning the proceedings to allow the Defendant to cool down,

concluding them sooner or muting his microphone73 could all have achieved the desired

result while interfering with his rights to a much more limited extent.

The measure further disadvantaged the Defendant, as its necessity was not questioned

again and less invasive measures were (again) not considered. Defendant had already

been assumed contumacious and when sanctioning the second instance of misbehaviour,

the Judges immediately turned to appointed counsel and excluded the Defendant from

the courtroom, without considering any of the less restrictive measures suggested above.

An unwanted counsel is ineffective74 because they cannot effectively represent the

Defendant without their instructions and assertions as to their understanding of events.75

Defense presented is not the defense guaranteed to him by the ICCSt, because it is not

his personal defense. The Defendant, not his lawyer, will bear the personal consequences

of a conviction.76 Furthermore, the Defendant's physical position outside the courtroom

70 Cf. HRI/GEN/1/Rev.6, 176.

71 Cf. Art. 63(2) ICCSt; Ruto Excusal Appeal, §61–62; Scharf (2005), 40.

72 Scharf (2007), 166; Allen (397 US 337), 343; Šešelj Counsel Appeal, §23.

73 Scharf (2007), 166–168.

74 Milošević Denying Counsel, §38; Correia v. PT, §7.3.

75 Cape (2012), 47.

76 Faretta (422 US 806), 834.

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violated his fair trial rights because it prevented free and private communication with

the counsel.77

ICTY had upheld the right to self-representation even in cases of blatant abuse.78 In

Milošević, despite the fact that the defendant often gave lengthy statements and political

speeches, and was frequently strategically disruptive,79 counsel was appointed only

because of his health, and only after repeatedly delayed proceedings.80 In Šešelj, counsel

was appointed because of obstructionism, offensive and irrelevant motions, disclosure

of confidential documents, witness intimidation, etc.81 In Norman, SCSL appointed

counsel because the accused's decision to self-represent a year into the proceedings

would be detrimental to co-defendants' rights to a fair trial.82

The Defendant in this case does not fit into any of the above scenarios. Therefore, it is

manifestly disproportionate that he had been stripped of both his right to self-

representation and right to be present after only two instances of disruptive behaviour

spanning only two days.

4.2 Excluding the Defendant was not in the interest of justice

PTC stated that it was consistent with the interest of justice to require the Defendant to

participate remotely.83 However, the Defendant could not "participate" as he was not

allowed to address the court or put forward his personal defense.84 To meaningfully

participate, the Defendant must be able of both active and passive participation,85 while

he was reduced from an active participant to a mere observer of his own proceedings,

which is a violation of his right to a fair trial and not in the interest of justice.

77 Alekhina v. RU, §167–172.

78 Cryer (2014), 432.

79 Scharf (2007), 161; Armatta (2010), 34; Post (2005), 829–833.

80 Milošević Reasons, §65.

81 Šešelj Appointing Counsel, §22–26. Šešelj Assignment of Counsel, §34–65.

82 Norman Self-Representation, §13–14.

83 Impugned Decision, §20.

84 Idem., §19.

85 Owusu-Bempah (2020), fn. 13.

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[B] CHARGED OFFENSES CANNOT BE PROSECUTED AS "OTHER INHUMANE ACTS" AND

PROSECUTION DID NOT MEET ITS DUTY TO ESTABLISH WITH SUFFICIENT EVIDENCE THAT

THERE ARE SUBSTANTIAL GROUNDS TO BELIEVE THAT THE DEFENDANT ORDERED THE

COMMISSION OF A CRIME

Defense submits that (1) charged offenses cannot be prosecuted as "other inhumane acts" because the

Prosecution did not establish all (1.1)(1) material and (1.2) mental elements of "other inhumane

acts", (2) nor that the Defendant is responsible for ordering the commission of the crime. The

Prosecution (3) did not meet the evidentiary burden to establish that there are substantial grounds

to believe that the Defendant ordered the commission of the crime.

(1) CHARGED OFFENSES CANNOT BE PROSECUTED AS "OTHER INHUMANE ACTS"

Charged offenses cannot be subsumed under Art. 7(1)(k) ICCSt because the

interpretation within Art. 7(1)(k) must be consistent with the essence of the offence and

in a manner that can be reasonably foreseen,86 in order to conform with the principle of

legality87 and not uncritically expand the scope of CAH.

1.1 Material elements of "other inhumane acts" are not fulfilled

The CAH of "other inhumane acts" cannot be committed without fulfilling the following

two material elements: great suffering or serious injury to body or to mental or physical

health as a consequence of the perpetrator's inhumane act88 and actions taken by the

perpetrator were of nature and gravity similar to any other act referred to in Art. 7(1)

ICCSt.89

1.1.1 Perpetrators did not inflict great suffering, or serious injury to body or mental or physical

health, by means of an inhumane act

The Chamber must take into account all factual circumstances, such as the nature of the

conduct, the context in which it occurred, and the physical, mental, and moral effects of

the act or omission upon the victim.90

The death of 250,000 residents of Eassos undoubtedly presents a serious injury to

physical health and great suffering. However, these consequences were not inflicted by

86 Ongwen TJ, §2741.

87 Art. 22(2) ICCSt.

88 Element 1 of Art. 7(1)(k) EOC; Blaškić TJ, §243; Kordić, AJ, §117; Kayishema TJ, §151; Vasiljević, TJ, §234.

89 Element 2 of Art. 7(1)(k) EOC.

90 Simić, TJ, §75; Vasiljević, TJ, §235; Krnojelac TJ, §131;

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the perpetrators by means of an inhumane act, because their actions were not acts or

omissions that would be deliberate and not accidental and would not conform with the

fundamental principle of humanity.91

Defendant commissioned the development of a vaccine against the H5N8 virus because

it could have mutated and spread to humans (zoonosis). Every virus that affects only a

certain species has a chance to spread to a different one which increases with larger

amount of contact with the infected species.92 Because the virus affected a large amount

of poultry (between summer and September 2019 half of the two countries' poultry

perished93) which is globally one of the most produced and consumed types of meats,94

it is likely the virus could mutate. Essentially, Defendant and Dr. Rayder proactively

tried to protect the population from potential illness, which was not an "inhumane" act.

It is unknown how the new strain of virus was created during the development of a

vaccine and how it spread to humans. In the past, research of dangerous pathogens has

indeed caused them to escape labs.95 The Defendant ordered the development of a

vaccine (not of a live virus) and did not provide the lab with extra funding for upgrades.

as additional funding was not available.96

After the spread of the virus to the general population, the Defendant ordered multiple

measures to prevent further spread and told NSC members to take necessary steps to

keep the spread of the virus secret "to avoid panic".97 These are not empty words or an

attempt of concealment. Defendant is a Minister for Defense and knows how perilous

extreme public responses to crises can be. Fear and panic can become just as dangerous

as the pathogen itself.98 Measures can fuel anxiety.99 The COVID-19 epidemic triggered

91 Delalić TJ, §543.

92 Parrish (2008), 459.

93 WHO Report, §1.

94 Berkhout (2020); OECD, Agricultural Outlook, 6.4, §2.

95 Piper (2019).

96 WHO Report, Annex 1, @4 Oct, 10.00.

97 WHO Report, Annex 2.

98 Brophy Marcus (2020).

99 McKeever (2020).

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a parallel anxiety epidemic100 – people were panic buying,101 leaving cities,102 exploiting

resources, showing increased xenophobic and anxious behaviours,103 becoming more

risk-averse and affecting stock markets,104 etc.

The acts carried out as a consequence of the secrecy order,105 were not inhumane acts

because their goal was to prevent further spread of the virus and to avoid a public panic

in Wessos, not to prevent Eassos from taking its own measures to contain the outbreak.

In light of the fact that the Defendant wanted to (in his own words) avoid a panic and no

evidence that he pursued any other goals, his orders cannot be regarded as inhumane

acts. Notifying anyone (WHO and Eassos, which has a strained relationship with

Wessos) would undoubtedly cause a public panic in Wessos. A State and its officials are

independent in resolving internal crises.106 The measures the Defendant did take were

successful and contained the outbreak in Wessos by the end of April 2020.107

Additionally, negative consequences of public panic (economy collapse, worsened

overall mental health, scarcity of resources, breakdown of social structures, etc.) were

avoided.

In any event, lack of notice to WHO and Eassos was not the cause of reported

consequences. The first two infected scientists travelled to the BMR near the border with

Eassos on a crowded bus on 26 February 2020.108 It is evident from Rayder's e-mails

that the virus spreads and kills very quickly: the two failed to report to work due to

serious symptoms only a day later. They died in 3-4 days and several more persons were

already showing similar symptoms.109 The virus has an R of over 5,110 which means that

one infected person on average infected 5 others. Because any virus with an R of over 1

spreads exponentially, the two scientists could have infected the entire bus of people on

100 Nasrallah (2020).

101 Islam (2021).

102 Marsh (2020).

103 Nicomedes (2020).

104 OECD, Financial Responses, 1.

105 WHO Report, Annex 2.

106 2(1) UNC; DFR, 123.

107 Evident from when the WHO Report, which states that the outbreak in Wessos was contained (§6), was published.

108 WHO Report, Annex 1, @27 Feb, 09.30. Impugned Decision, §9.

109 Idem., @1 Mar, 08.30.

110 WHO Report, §3.

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26 February 2020 who then each on average went on to infect 5 more. Moreover, the

BMR is a site of frequent migration across the border,111 and the virus likely spread

across the border before the Defendant told the NSC to avoid panic 5 days later and

before perpetrators implemented any measures.

However, at the time of the outbreak, in March 2020, the world already paid attention

to a different virus (COVID-19) but with similar symptoms to the one in this case. Even

without initial knowledge of exactly what had spread into their country and from where,

Eassos could have reacted to individual cases emerging much sooner because it had all

the information needed to take appropriate measures and stop the spread of the virus. It

knew about the previous outbreak of the H5N8 virus and it knew the world was dealing

with a fast-spreading pandemic – WHO declared COVID-19 as a Public Health

Emergency of International Concern (WHO's highest level of alarm) already in January

2020.112 Eassos discovered the first cases of similar symptoms to those of COVID-19

already in early March.113 It had all of the necessary information to introduce safety

measures and stop the spread of any disease. However, it did not take any measures until

23 March 2020 when advised to do so by WHO. The government of Eassos appears to

be blaming the Defendant and his way of dealing with a national crisis in Wessos for its

own lack of preparedness and slow response to a crisis it could have reasonably foreseen

at the time based on the information at hand.

1.1.2 Alternatively, the acts in question are not of a character similar to other enumerated crimes

against humanity

The CAH of "other inhumane acts" has been described as a residual category,

criminalizing atrocities that cannot be subsumed under any other enumerated CAH.114

However, not all deviant behaviours, even if criminalized by national legislations, can

be prosecuted as CAH. International criminal law focuses on atrocity violence and

extraordinary criminality.115 In particular, such acts must be of a character (nature and

gravity) similar to other acts in Art. 7(1) ICCSt.116 This element prevents the category

from being used in situations of ordinary criminality. Other inhumane acts should not

111 Impugned Decision, §3.

112 WHO, Statement.

113 WHO Report, §2.

114 Kenyatta Charges, §269; Kordić AJ,§117; Muvunyi TC, §527; Cassese, Cassese's (2013), 98; Schabas (2010), 184.

115 Preamble ICCSt; Kenya Authorization, §56; Stahn (2019), 416.

116 Element 2 of Art. 7(1)(k) EOC.

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serve as a mechanism to criminalize vaguely reprehensible conduct which does not

satisfy the stricter requirement of better-defined criminal offences.117 The crime must be

interpreted strictly and not be extended by analogy. Additionally, in case of ambiguity,

it must also be interpreted in favour of the Defendant.118

This category of crimes is reserved for deliberate forms of infliction with (comparably

serious) inhumane results that were intended or foreseeable and should not simply be

utilised as all-encompassing.119

The crimes enumerated in Art. 7(1)(a-j) ICCSt are intended to protect humanity and

human dignity and represent acts which are inherently cruel. Similar acts have not (yet)

been prosecuted by any international(ised) court before (including during the COVID-

19 epidemic). The acts in question are not similar to acts that were prosecuted as "other

inhumane acts" before (forced trench-digging,120 forced disappearance,121 sniping at

civilians,122 forced marriage,123 imposing inhumane conditions in concentration

camps,124 etc.). Acts of preventing further spread of the virus and avoiding a public panic

are not of such nature and were undertaken merely as a matter of public health policy

and not to deliberately inflict serious or inhumane suffering on any person. Additionally,

the case is not of sufficient gravity to justify action by the ICC125 because it is a public

health crisis of two island states and – especially compared to the COVID-19 crisis –

not a threat to peace and security of the entire world.

117 Boas (2009), fn. 461, citing Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (2005), 189.

118 Art. 22(2) ICCSt. Katanga TJ, §53; Kenyatta Charges, §53, 269; Bemba Charges, §31; Abu Garda Charges, §42;

Delalić TJ, §408–413; Galić TJ, §93; Akayesu TJ, §501; Triffterer (2016), 962; Harv. Law Rev (2006), 2420.

119 Kayishema TJ, §583.

120 Kordić AJ,§39.

121 Kvočka TJ, §208.

122 Galić AJ, §158.

123 Brima AJ, §201.

124 Kony Warrant, §17–18.

125 Preamble and Art. 17(1)(d) ICCSt; Kenya Authorization, §62.

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1.2 Mental elements of "other inhumane acts" are not fulfilled

The CAH of "other inhumane acts" cannot be committed without fulfilling the following

mental element: the perpetrators knew that their conduct could be, or intended it to be,

part of a widespread or systematic attack directed against a civilian population.126

1.2.1 Perpetrators did not know that their conduct could be, nor intended it to be, part of a

widespread or systematic attack directed against a civilian population

One of the mental elements to establish a CAH of "other inhumane acts" is that the

perpetrator knew that the conduct was part of, or intended it to be part of, a widespread

or systematic attack directed against a civilian population. The perpetrator must have

acted with knowledge of the broader context of the attack, and with knowledge that his

acts (or omissions) formed part of such an attack.127 The minimal possible threshold for

establishing criminal responsibility is direct intent in the second degree.128 It requires

the perpetrator to be aware that material elements of a crime will be the almost inevitable

outcome of his acts.129 The perpetrator must therefore have extremely high awareness

of causality and must accept such an outcome.

The army and police forces had no knowledge of any "attacks" against any (Wessos or

Eassos) civilian population and could not have realized that implementing measures to

stop the spread of the virus and preventing public panic could cause such an "attack".

Nothing in the facts of this case insinuates that they knew they were instructed to act for

any other reason but to prevent a public panic and to protect their fellow citizens from a

virus. There is no evidence that they knew anything about the origin of the virus or the

decision not to notify WHO or Eassos, therefore they had no knowledge of the

widespread or systematic effect. In Wessos, the virus was quickly contained130 and there

was no indication that anything would be different in Eassos.

Prosecution failed to establish with sufficient evidence that there are substantial grounds

to believe that the perpetrators acted with intent required by Art. 30 ICCSt. The

perpetrators took measures with the intent to prevent the spread of the virus and to avoid

126 Element 5 of Art. 7(1)(k) EOC.

127 Kupreškić TJ, §556; Ndindiliyimana AJ, §260; Semanza TJ, §332.

128 Art. 30(2)(b) ICCSt; Bemba Charges, §359–360.

129 Bemba Charges, §359; Lubanga Charges, §352.

130 WHO Report, §6.

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a public panic. There is no evidence that they intended to cause deaths or great suffering

or that they were aware that such consequences would occur in the ordinary course of

events. The effects of viruses and the measures taken to contain them cannot be predicted

or determined in advance. ICC must not fall prey to hindsight bias (believing that an

event was more predictable after learning of its existence than it actually was at the time

it occurred,131 which leads observers to assess the quality of a decision not by whether

the process was sound but by whether its outcome was good or bad132). The perpetrators

were just ordinary persons who were a part of something of which the final outcome was

beyond their control.133

131 Roese (2012), 411.

132 Kahneman (2012), 203.

133 Stahn (2019), 419.

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(2) DEFENDANT IS NOT RESPONSIBLE FOR "OTHER INHUMANE ACTS", BECAUSE HE

WAS NOT AWARE OF THE SUBSTANTIAL LIKELIHOOD THAT A CRIME COULD BE

COMMITTED IN EXECUTION OF HIS ORDERS, AND DID NOT ACCEPT SUCH RISK

In order to establish individual criminal responsibility for ordering a crime,134 an order

must, at minimum, be given with the awareness of the substantial likelihood that a crime

will be committed in execution of that order, and with acceptance of such risk.135

Orders issued with the aim of deterring criminal conduct or the removal of criminal

elements once they had been identified might imply that Defendant had knowledge of

the mere possibility that crimes could be committed by some elements, but it does not

prove awareness of a substantial likelihood that crimes would be committed in the

execution of his order.136

Defendant's orders were lawful because they were issued with the aim of protecting the

population of Wessos: deterring the spread of the virus and avoiding a public panic. Both

of these are legitimate aims to pursue. The Defendant tried to deter great suffering and

serious injury – by not notifying WHO or Eassos perhaps not to the best of his abilities,

but that does not prove that he was aware of a "substantial likelihood" that "other

inhumane acts" could be committed in the execution of these orders.

At the time of the virus spreading across the border (from 26 February 2020 onwards),137

the Defendant did not yet know how dangerous it would be and how many casualties it

would cause. Rayder notified him on 27 February 2020 that the two scientists

experienced "flu-like" respiratory symptoms and the Defendant understood it to be just

the ordinary flu that his wife had recently recovered from,138 and so would the

scientists.139 He had only been informed of higher severity on 1 March 2020140 and he

acted immediately (on 2 March 2020) to try and avert a disaster.141 Additionally, when

recommended to suspend international flights "to ensure this doesn't get past our

134 Mudacumura Warrant, §63; Ntaganda Charges, §145.

135 Blaškić AJ, §42; Kordić AJ, §30; Karadžić TJ, §573; Nahimana AJ, §481; Karera AJ, §211.

136 Blaškić AJ, §346–347.

137 WHO Report, Annex 1, @27 Feb, 09.30.

138 Idem., @27 Feb, 11.00.

139 Ibid. ("until the sick personnel recover and return").

140 Idem., @1 Mar, 08.30.

141 WHO Report, Annex 2.

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borders", he gave an order to do so,142 which clearly shows that he had no intent or

awareness that the virus had already spread across the border and would wreak havoc in

Eassos, or that the acts taken to execute his order might (but in any case did not) fulfill

the elements of a CAH of "other inhumane acts".

In any event, the consequences would have occurred regardless of the involvement of

the Defendant (or the perpetrators) because of Eassos's previously described lack or

preparedness to handle a foreseeable health crisis (COVID-19 pandemic), even if that

crisis was ultimately caused by a different virus (but with similar symptoms).

142 Ibid.

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(3) PROSECUTION DID NOT MEET THE EVIDENTIARY BURDEN TO ESTABLISH THAT

THERE ARE SUBSTANTIAL GROUNDS TO BELIEVE THAT THE DEFENDANT

ORDERED THE COMMISSION OF A CRIME

The purpose of the Confirmation Hearing is to commit for trial only those persons

against whom sufficiently compelling charges going beyond mere theory or suspicion

have been brought. Prosecution must show concrete and tangible proof demonstrating a

clear line of reasoning underpinning its specific allegations.143

Prosecution did not sufficiently specify its allegations and did not demonstrate a clear

line of reasoning underpinning them. It used a vague term (spreading of the virus) to

encompass a variety of possible acts (ordering the development of a vaccine, not

providing additional money for the project, telling Rayder and the NSC members not to

spread panic, not notifying Eassos and WHO) which are not clearly defined. It abused

the vague nature of the CAH of "other inhumane acts" to try and prosecute the Defendant

for his decision on how to handle a national public health crisis. Using the crime of other

inhumane acts as a catch-all does not enable the counts of other inhumane acts to

transcend from vagueness to reasonable precision.144

Additionally, Prosecution based its allegations on only one piece of documentary

evidence (WHO Report with its annexes). Such evidence (NGO, UN reports and press

articles) may be useful to understand the context of the situation, but it has less probative

value.145 It should not be used as the sole basis to establish substantial grounds needed

to confirm vague charges. WHO Report's claims that Defendant "knowingly" prevented

the Institute from taking precautions and that his "secrecy order was tantamount to a

death sentence"146 – are unfounded speculations based on information provided by only

one party (Eassos) and not a proper legal determination.

Furthermore, providers of the annexes (Rayder and Tarly) benefit from this prosecution

because they are likely persons of interest in potential criminal investigations. Rayder

created a dangerous virus and failed to prevent its escape into the public. Defendant did

not unreasonably refuse to provide him with funding for lab upgrades but told him that

143 Lubanga Charges, §37-39; Kenyatta Charges, §52; Katanga Charges, §65; Mbarushimana Charges, §40–41;

Bemba Charges, §29; Abu Garda Charges, §36–39; Goudé Charges, §12; UN Doc. A/53/44, §6.

144 Kayishema TJ, §586.

145 Gbagbo Adjournment, §35–36.

146 WHO Report, §4, 6.

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additional funding was simply not available.147 Had Rayder thought the risk of working

on the vaccine in existing conditions was too high, he had plenty of other options. He

could have (1) chosen a different method that did not require creating a live virus capable

of escaping into the public, (2) outsourced such work to better equipped labs, (3) refused

the work, or (4) inform Defendant that the project under these conditions could not be

done by anyone at all. He is not absolved of responsibility just because he warned a

layman of potential risks of making the vaccine. Essentially, he was the expert and the

one who made the final decisions which resulted in the spread of the virus to humans

and into the general population. Rayder fled the country and provided Eassos, a state

with a strained relationship and no diplomatic relations with Wessos, with e-mails which

are used as evidence in this case – in return for asylum. Tarly is also likely facing a

criminal investigation for leaking confidential information (NSC meeting minutes) of

importance to national peace and security which presented a danger of causing a major

public panic that the Defendant tried to avoid. Under these circumstances, the providers

of the two documents are trying to avoid being investigated and prosecuted for their own

actions by seeking the protection of the international community and Eassos which

initiated this prosecution to politically undermine and blame Wessos for their own

failure to protect their citizens.

In any event, the annexes had by now exchanged multiple hands,148 and – while the parts

provided may be authentic – some pages or e-mails could be missing and therefore not

provide the whole picture. Because Rayder and Tarly had fled or disappeared, they are

unlikely to testify at Trial, which would prejudice the Defendant's right to examine those

who provide the principal evidence against him and thus violate his right to defence.

147 WHO Report, Annex 1, @4 Oct, 10.00.

148 WHO Report, §4–5.

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[C] ICC HAS NO JURISDICTION TO PROSECUTE THE DEFENDANT

Defense submits that (1) the preconditions for the exercise of jurisdiction from Art. 12 ICCSt are

not fulfilled and (2) the Defendant enjoys personal immunity from prosecution.

(1) THE PRECONDITIONS FOR THE EXERCISE OF JURISDICTION FROM ART. 12 ICCST

ARE NOT FULFILLED

1.1 The Defendant is a national of Wessos over which the ICC has no jurisdiction

ICCSt prescribes two preconditions for ICC to exercise its jurisdiction: the conduct in

question must occur on the territory of a State which has accepted its jurisdiction or must

be committed by a national of such a State.149 The Defendant is a national of Wessos

and the conduct occurred in Wessos, which is not a State Party to ICCSt, never accepted

its jurisdiction and the situation was never referred to the ICC by the UNSC.150

1.2 ICC cannot exercise its jurisdiction since the "conduct" in question did not occur on the

territory of a State Party

According to the universally recognized theory of ubiquity, a crime is considered as

committed on the territory of a State when either criminal conduct or its result has

occurred there.151 Art. 12 ICCSt explicitly states that ICC may exercise its jurisdiction

if the State on the territory of which the conduct occurred is a party to ICCSt or has

accepted ICC's jurisdiction.

Terms of a treaty must be interpreted in good faith in accordance with their ordinary

meaning, in their context and in the light of its object and purpose.152 Using an extensive

interpretation of the term "conduct"153 is against the systematic and teleological

interpretation of the ICCSt.

While the textual interpretation of "conduct" does not explicitly indicate what exactly

needs to occur on the territory of a State Party,154 its meaning can be inferred from other

provisions. Art. 30 ICCSt distinguishes between "conduct", "consequence" and

"circumstance" as material elements that must be committed with intent and/or

149 Art. 12 ICCSt; Impugned Decision, §2–3, 10, 12; Ivory Coast Authorization, §187.

150 Impugned Decision, §2–3, 10, 12; Harun Warrant, §16; 20

151 Ryngaert (2015), 78; Maillart (2019), 377; Jurisdiction Observations, §53–54.

152 Art. 31 VCLT; Kenya Authorization, §19.

153 E.g. as lasting from the first action until the result takes place – Maillart (2014).

154 Myanmar Authorisation, §46.

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knowledge. From §7 of General introduction to EOC it can be inferred that "conduct",

"consequences" and "circumstances" are possible elements of a crime and, as such,

distinct terms.155 Art. 20(2) ICCSt shows that a distinction between the terms "conduct"

and "crime" was intentional, because it has significant legal repercussions – if a person

is convicted or acquitted by the ICC, other courts may re-try them for the same

"conduct", as long as it is not for a "crime" under ICC's jurisdiction.156 Art. 20(1) also

indicates a distinction by using the phrase "conduct which formed the basis of crimes".

The difference between the two is significant for determining criminal responsibility

(Art. 31 ICCSt) – grounds precluding responsibility are those that exist at the time of the

person's "conduct".

The intentional use of different terms is corroborated by Art. 12(2)(a) ICCSt itself

because it distinguishes between "conduct" occurring on territory and "crime" being

committed on board a vessel or aircraft.157

ICC (inaccurately) stated in Myanmar that preparatory documents offer no explanation

as to why the drafters selected to use a different word in relation to vessel/aircraft and

that there is no apparent reason for the distinction.158 However, preparatory documents

show that the drafts continuously used the phrase "act or omission" over "conduct" at

least until 10 July 1998.159 It was only replaced by "conduct" in the final version160

because the drafters could not agree on the definition of "omission".161 This indicates

that ICC's territorial jurisdiction was always intended to be subjective (conduct

understood as an act and/or possibly an omission) and not also objective (conduct

understood as crime, which would also encompass the result). Additionally, ILC

members felt that investigation and prosecution of the crimes should not be undertaken

in the absence of the support of a State or UNSC.162 Strong reservations were expressed

155 Vagias (2014), 91–92.

156 Idem., 94.

157 Idem., 92.

158 Myanmar Authorisation, §48.

159 Draft Code, UN Doc. A/49/10, 41, Art. 21; Bureau Proposal, UN Doc. A/CONF.183/C.1/L.59, 216, Art. 7.

160 Art. 12(2)(a) ICCSt; Vagias (2014), 91.

161 Vagias (2014), 92; Lee (1999), 205; Maillart (2014).

162 Draft Code, UN Doc. A/49/10, 46, Art. 25, §4.

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with regard to the references to UNSC and the view was also expressed that ICC should

not exercise jurisdiction unless States Parties gave their express consent.163

In any case, the reasoning in Myanmar cannot be applied to this case because the CAH

of "other inhumane acts" does not include a necessary trans-border element. ICC

established jurisdiction in Myanmar because victims' behaviour (crossing the border) as

a consequence of coercive environment is a required element for the actual completion

of the crime of deportation.164 Without this element deportation could not be completed

(it could only constitute an attempt or a crime of forcible transfer). Victims' crossing of

the border established a territorial link between a State Party and a part of the criminal

conduct.165 The jurisdiction in this case cannot be established using the same basis

because the crime of "other inhumane acts" does not require such a trans-border element.

(2) ALTERNATIVELY, THE ICC CANNOT INVESTIGATE AND PROSECUTE THE

DEFENDANT BECAUSE HE ENJOYS PERSONAL IMMUNITY FROM PROSECUTION

2.1 Defence ministers enjoy personal immunity in international law

The purpose of personal immunity is to ensure the efficient performance of the highest

sovereign functions.166 It stems from functional/representative necessity; the principles

of sovereign equality and non-interference in internal affairs, as well as the need to

ensure stability of international relations and the independent performance of State

activities.167

It is firmly established in international law that certain holders of high-ranking office in

a State, such as the Head of State, Head of Government and Minister for Foreign Affairs,

enjoy immunities from criminal jurisdiction,168 which protects them against any act of

authority of another State which would hinder them in the performance of their duties.169

The list of officials benefitting from personal immunity is not restricted to just those

163 Draft Statute, UN Doc. A/CONF.183/2, fn. 42.

164 Myanmar Authorisation, §51–52.

165 Idem., §62.

166 Preamble VCDR, §4; Kolb (2014), 185.

167 UN Doc. A/63/10, §274; Sanger (2013), 198.

168 Arrest Warrant, §51; Kolb (2014), 181.

169 Arrest Warrant, §54.

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three170 and there is a tendency to expand it,171 because functions of some officials can

be comparable to those of Foreign Ministers and they need immunity to perform them.172

Defence ministers are involved in decisions on most important issues affecting State

sovereignty and exercising of jurisdiction over them would be an interference in that

State's internal affairs.173 In national practice, personal immunity was already accorded

to foreign Defence and Commerce Ministers.174

The Defendant, a long-term Defence Minister has substantial autonomy in his sphere of

authority175 and performs essential functions for his State. ICC must respect his

immunity and not interfere with the sovereignty and internal affairs of Wessos.

2.2 ICCSt cannot create any obligations for Wessos

2.2.1 There exists no exception to immunity in international criminal law

No exception to the rule according immunity from criminal jurisdiction to ministers,

even when they are accused of war crimes or CAH, exists in CIL.176 Such an exception

may develop, but it has to be a policy decision by the States, not a state of the law finding

of judicial institutions.177

Personal immunity of incumbent high-ranking officials applies in national jurisdictions

even in cases concerning crimes against international law.178 An exception to this firmly

established rule could only be found in the legal basis of the Court.179

2.2.2 Applying Art. 27 ICCSt to establish jurisdiction would contravene international law

Treaties cannot create obligations for third states without their express consent.180 In

Palestine this Court stated that the Monetary Gold principle – according to which ICJ

170 Sanger (2013), 198; Djibouti v. France, §194.

171 Fox (2013), 559; Kolb (2014), 183.

172 Kolodkin's Report, §110, 119–120 and fn. 221; DRC v. Rwanda, §47; Kolb (2014), 187; Fox (2013), 559.

173 Kolodkin's Report, §121.

174 Mofaz (128 ILR 709). Bo Xilai (128 ILR 713).

175 Impugned Decision, §2.

176 Arrest Warrant, §58; Galand (2018), 172–175.

177 Van Alebeek (2008), 267.

178 Pinochet, Castro, Hussein, Mugabe, Ghaddafi, Bush, etc. Van Alebeek (2008), 267–268; Akande (2011), 819–820.

179 Galand (2018), 160, 198; Stahn (2019), 253–254; Cormier (2020), 69.

180 Arts. 34–35 VCLT.

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cannot adjudicate in matters which would affect legal interests of third parties without

their consent181 – does not apply to ICC because its jurisdiction is not exercised over

States, but over natural persons.182 However, exercising jurisdiction over the Defendant

would nonetheless affect the legal interests of Wessos. It would render the personal

immunity – which is a right of the State, not the individual, and only the State may

(expressly) waive it183 – of its "second most powerful official"184 completely

disfunctional and impose an obligation on Wessos to suffer an interference with its

affairs without its consent.

States Parties to a treaty-based court are only entitled to waive their own rights, not the

rights of others,185 and they cannot waive the immunity of officials from non-party

States. If each State Party to ICCSt is individually barred from exercising jurisdiction

over the Defendant, they also cannot exercise it together on the basis of a treaty.186 Using

Art. 27 ICCSt in such a way contradict the most fundamental rule of international law.187

Additionally, because ICC operates by delegation, immunity of officials of non-party

States applies not only in relation to them, but also in relation to ICC itself. ICC is

prevented by international law from violating those immunities.188

ICC had previously ignored the immunity of an incumbent high-ranking official of a

non-party State in the case of Al-Bashir, triggering strong opposition.189 However, ICC's

jurisdiction in Al-Bashir was triggered by a UNSC referral of the situation under Chapter

VII of UNC. Art. 27 ICCSt was only applicable to a non-party State as a result of that

State's obligations under UNC to respect UNSC decisions.190 In this case, ICC's

jurisdiction was not triggered by UNSC acting in the name of the international

community as a whole.

181 Monetary Gold, 32.

182 Palestine Jurisdiction, §59.

183 Fox (2013), 222; Foakes (2011), 4; Akande (2012).

184 Impugned Decision, §2.

185 Galand (2018), 162.

186 Van Alebeek (2008), 277; Cormier (2020), 93.

187 Idem., 279.

188 Akande (2004), 421.

189 Galand (2018), 198; Sadat (2013), 363.

190 Al-Bashir Jordan, §34–35; Art. 25 UNC.

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Moreover, international law already balances the protection of sovereign equality and

the rule of law by allowing the exercise of foreign criminal jurisdiction over senior

officials after the end of their function.191 Immunity may bar prosecution for a certain

period or for certain offences, but it cannot exonerate from (potential) criminal

responsibility.192 Immunities do not represent a bar to criminal prosecution in certain

circumstances, such as before courts, where they have jurisdiction.193 In fact, the

principle of irrelevance of official capacity secures the responsibility of the individual,

but it does not secure the jurisdiction of the court.194 Arguing that the interests of

preventing impunity outweigh the interests of respecting personal immunity is in

defiance of clear state practice.195

In light of the above, the ICC is barred from exercising any jurisdiction over the

Defendant as his immunity cannot be waived without Wessos's consent.

191 Stahn (2019), 254.

192 Arrest Warrant, §59–60.

193 Idem., §61.

194 Van Alebeek (2008), 265.

195 Idem., 272.

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SUBMISSIONS

In light of the issues raised, arguments advanced, and authorities cited, the Defense Counsel

respectfully requests the Appeals Chamber to:

Reverse the Impugned Decision, and

Declare that:

a. the Defendant was unlawfully deprived of his right to be present at the Confirmation

Hearing under Art. 61 ICCSt and to represent himself under Art. 67(1)(d) ICCSt,

b. the charged offenses cannot be prosecuted as "other inhumane acts" under Art.

7(1)(k) ICCSt and Prosecution did not meet its duty to establish with sufficient

evidence that there were substantial grounds to believe the Defendant ordered the

commission of such a crime under Art. 25(3)(b) ICCSt, and that

c. the ICC has no jurisdiction to prosecute the Defendant under Art. 12 ICCSt.

Respectfully submitted,

COUNSEL FOR THE DEFENSE

On behalf of General Dragone Goodrider of Wessos

Dated this 8th day of March 2021

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