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IN THE APPEALS CHAMBER INTERNATIONAL CRIMINAL TRIBUNAL FOR REVATE ALIJAHAN v. PROSECUTOR

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IN THE APPEALS CHAMBER

INTERNATIONAL CRIMINAL TRIBUNAL FOR REVATE

ALIJAHAN

v.

PROSECUTOR

MEMORIAL FOR THE APPELLANT

TABLE OF CONTENTS

Page No1. Index of Authorities--------11

2. Statement of Jurisdiction-------22

3. Statement of Facts--------33

4. Statement of Issues--------44

5. Summary of Arguments-------55

6. Written Pleadings--------66

A. The Trial Chamber Judgement violates the rights of the Appellant-77

B. The Appellant is not guilty of the crime of Genocide---88

C. The Appellant is not guilty of the crime of Conspiracy to Commit Genocide99

D. The Appellant is not guilty of the crime of Direct and Public Incitement to Commit Genocide--------00

E. THE Appellant is not part of the alleged Joint Criminal Enterprise-11

F. The Appellant does not incur Superior Responsibility for all the crimes charged against him--------22

7. Prayer----------33INDEX OF AUTHORITIES[ARTICLES]1. Allison M. Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 CAL. L. REV. 75-170 (2005)2. Matthew Lippman, GENOCIDE, ed. M.C.Bassiouni, International Criminal Law, Second Edition, Volume I3. Pamela Hediger, Mens rea: The Impasse of Law and Psychiatry. Gonzaga Law Review 26 (1991) 6154. Susan Benesch, Vile Crime or Inalienable Right: Defining Incitement to Genocide, Virginia Journal Of International Law,2008, Volume 48: 35. Tilman Blumenstock, The Judgement of the ICTY in the Brdjanin Case, Leiden Journal of International Law 18, No. 1(March 2005):71

[BOOKS]1. William A. Schabas, Genocide In International Law: The Crime of Crimes, The Press Syndicate of the University of Cambridge, Cambridge (UK), 2000, 1st Edition[CASES][Domestic Cases]

1. Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100: 2005 SCC 402. People v. Carter, 415 Mich. 558 (1982)3. R v. O'Brien, [1978] 1 S.C.R. 5914. State of Minnesota v. Christopher, 305 Minn. 226, 231 (1975)[International Cases][ICTR]

1. Prosecutor v. Akayesu, ICTR-96-42. Prosecutor v. Bagilishema, ICTR-95-1A3. Prosecutor v. Bikindi, ICTR-01-724. Prosecutor v. Karemera et al., ICTR-98-44-A5. Prosecutor v. Kayishema and Ruzindana, ICTR-95-16. Prosecutor v. Musema, ICTR-96-137. Prosecutor v. Nahimana, Barayagwiza, & Ngeze, ICTR 99-528. Prosecutor v. Nahimana, ICTR-96-119. Prosecutor v. Niyitegeka, ICTR-96-1410. Prosecutor v. Ntagerura, ICTR-96-10A11. Prosecutor v. Ntakirutimana and Ntakirutimana, ICTR-96-10 and ICTR-96-1712. Prosecutor v. Nyiramasuhuko, ICTR-97-2113. Prosecutor v. Ruggiu, ICTR-97-3214. Prosecutor v. Rutaganda, ICTR-96-315. Prosecutor v. Semanza, ICTR-97-20[ICTY]

1. Prosecutor v. Blaskic, ICTY, IT-95-14

2. Prosecutor v. Brdjanin, ICTY, IT-99-363. Prosecutor v. Furundija, ICTY, IT-95-17/14. Prosecutor v. Gali, ICTY, IT-98-295. Prosecutor v. Kordi and erkez, ICTY, IT-95-14/26. Prosecutor v. Kuprekic, ICTY, IT-95-167. Prosecutor v. Muci et al, ICTY, IT-96-218. Prosecutor v. Stakic, ICTY, IT-97-249. Prosecutor v. Tadic, ICTY, IT-94-1[INTERNATIONAL INSTRUMENTS]1. Convention on the Prevention and Punishment of the Crime of Genocide, 1948

2. Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda

3. Statute of the International Criminal Tribunal for Rwanda

[OTHERS]

1. Memorandum to Deputy Prosecutor of the International Criminal Tribunal for Rwanda from Lorin Einhorn

STATEMENT OF JURISDICTIONJurisdiction of this Appeals Chamber of the International Criminal Tribunal for Revate is invoked under Article 24 of the Statute of the Tribunal, as an appeal from a final judgment of conviction and sentence in the Trial Chamber of this Tribunal. Notice of appeal was timely filed with the Registrar in accordance with Rule 108 of Part Seven of the Rules of Procedure and Evidence of the Tribunal.The Appellant has the honour to submit the Memorial of the present case filed under Rule 111 of the Rules of Procedure and Evidence of the Tribunal to the Honourable Appeals Chamber.

SYNOPSIS OF FACTS

Revate, a state within the Union of Timoshine consists of a majority of Tilen and a minority of Cotene population and have experienced numerous incidents of religious tension between them between the years 1947-2005. The Accused, Alijahan, chief-minister of Revate is a prominent member of the YLS political party. Between the 15th and the 18th of August, 2005, clashes between the two groups took place in various villages, towns and cities across Revate, where thousands were killed. The media reports attributed these clashes as the result of the killing of Bebe Remedeev, a Tilen spiritual leader on 14/08/2005.

The matter was referred to the United Nations Security Council, on 15/08/2006, after extensive discussions between various groups, namely, political parties, NGOs etc. On 20/11/2006, a Tribunal was set up, pursuant to Security Council Resolution No. 101/06, to prosecute persons responsible for the tragic events in Revate. The Tribunal is governed by the Statute, and Rules of Procedure and Evidence, of the UN International Criminal Tribunal for Rwanda. The Prosecutor submitted an indictment against Alijahan charging him with crimes of Genocide (Commission of Genocide, Conspiracy to Commit Genocide and Direct and Public Incitement to Commit Genocide) and also ascribed Alijahan as a part of the Joint Criminal Enterprise between him, his wife Yashode, businessman K.R. Dolme, area Superintendent of Police Mr. Ricardo Melena and another leader Xen; it was also stated that, in the alternative, Alijahan would incur superior responsibility for the crimes. The Accused plead not guilty to all charges. The Trial Chamber issued its judgement on 10/12/2008 finding Alijahan guilty of all charges and was sentenced for life imprisonment. The legal findings of the Trial Chamber were based on extensive evidence, which included factual findings (Allegations A-L) given as follows:

Allegation A Speech of Alijahan during Bebe Remedeevs funeral on 15/08/2005

Allegation B Killings in village Zenotia on 15/08/2005

Allegation C Killings in town Rodin on 15/08/2005

Allegation D Meeting of Alijahan with 5 leaders of the YLS youth wings at his residence.

Allegation E Meeting and rally at Yuvkone cricket stadium in City Diew on 16/08/2005

Allegation F Killing at MRF housing colony in City Diew on 16/08/2005

Allegation G Meeting between the members of the Joint Criminal Enterprise.

Allegation H-L History of meetings between the members of the Joint Criminal Enterprise between the years 1996 to 15th August 2005.

It was the Trial Chambers first ever judgement and Alijahan has appealed the judgement.STATEMENT OF ISSUES

A. WHETHER THE TRIAL CHAMBER JUDGEMENT VIOLATES THE RIGHTS OF THE APPELLANT?B. WHETHER THE APPELLANT IS GUILTY OF THE CRIME OF GENOCIDE?

C. WHETHER THE APPELLANT IS GUILTY OF THE CRIME OF CONSPIRACY TO COMMIT GENOCIDE?

D. WHETHER THE APPELLANT IS GUILTY OF THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO COMMIT GENOCIDE?

E. WHETHER THE APPELLANT IS PART OF THE ALLEGED JOINT CRIMINAL ENTERPRISE?

F. WHETHER THE APPELLANT INCURS SUPERIOR RESPONSIBILITY FOR ALL THE CRIMES CHARGED AGAINST HIM?

SUMMARY OF ARGUMENTSA. THE TRIAL CHAMBER JUDGEMENT VIOLATES THE RIGHTS OF THE APPELLANT.B. THE APPELLANT IS NOT GUILTY OF THE CRIME OF GENOCIDE.

C. THE APPELLANT IS NOT GUILTY OF THE CRIME OF CONSPIRACY TO COMMIT GENOCIDE.

D. THE APPELLANT IS NOT GUILTY OF THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO COMMIT GENOCIDE.

E. THE APPELLANT IS NOT PART OF THE ALLEGED JOINT CRIMINAL ENTERPRISE

F. THE APPELLANT DOES NOT INCUR SUPERIOR RESPONSIBILITY FOR ALL THE CRIMES CHARGED AGAINST HIM.

WRITTEN PLEADINGSA. THE TRIAL CHAMBER JUDGEMENT VIOLATES THE RIGHTS OF THE APPELLANT.

The order of the trial chamber not permitting the Accused to examine witnesses to give evidence regarding the murder of Bebe Remedeev is in gross violation of the rights of the Accused. The ICTR statute pursuant to Article 20 (4) (e) under the heading Rights of the Accused entitles the Accused to examine, or have examined, the witnesses against him or her and obtain the attendance and examination of witnesses on his or her behalf under the same conditions as the witnesses against him or her.

The order of the Trial Chamber in its order dated 3rd June 2008 ordered in favour of the Special Prosecutor, refusing the Accused to examine witness. Consequently the request for certification was also turned down citing non- compliance with the standards for certification as the reason.

Article 24 of the Statute enumerates the grounds of appeal as an error of law invalidating the decision or an error of which has occasioned miscarriage of justice. A Trial Chamber does not have to explain every decision it makes, as long as the decision, with a view to the evidence, is reasonable. But, in the instant case, the chamber refused the Accused to adduce evidence on an area on which no evidence whatsoever was given by the prosecution.

The murder of Bebe Remedeev is not only a necessary context of the case but also the crux of the case. Had it been proved that the events subject matter to the indictment were only a natural outcome of the death of Bebe Remedeev, then there would be reasonable doubt as to the guilt of the Accused. Pursuant to Article 20 (3) of the ICTR Statute, the Accused shall be presumed to be innocent until proven guilty according to the provisions of the present Statute. In this case, the parties disagree on the standard that the Trial Chamber should have applied and on the standard on appeal regarding challenges to inferences drawn from circumstantial evidence. It is settled jurisprudence that a Trial Chamber may only find an Accused guilty of a crime if the Prosecution has proved each element of that crime and the applicable mode of liability, as well as any fact indispensable for entering the conviction beyond a reasonable doubt.[]Pursuant to Rule 73 (B), certification may be granted if the challenged decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.

A decision on the circumstances leading to the events which is subject matter of the instant case would significantly affect the fair and expeditious conduct and also materially advance the proceedings. The trial chamber has erred in its finding to the contrary and has abused the discretion vested in it by not certifying the order for appeal.

While the chamber permitted 60 prosecution witnesses to testify, the total number of defence witnesses remained to be just 40. The chamber unfairly restricted the number of defence witnesses. There is an unacceptable appearance of bias if: the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[] Thus there is reasonable apprehension of bias in the instant case.

Under the Statute of the International Tribunal the principle of equality of arms must be given a more liberal interpretation than that normally upheld with regard to proceedings before domestic courts. The principle of equality of arms between the Prosecutor and Accused in a criminal trial goes to the heart of the fair trial guarantee. At a minimum, equality of arms obliges a judicial body to ensure that neither party is put at a disadvantage when presenting its case.[] This principle means that the Prosecution and the Defence must be equal before the Trial Chamber. It follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.[] The trial chamber has denied the Accused the right to equality of arms by denying him the possibility of providing full answer and defence to the prosecution.[] Thus the order of the Trial Chamber is in gross violation of the rights of the Accused.B. THE APPELLANT IS NOT GUILTY OF THE CRIME OF GENOCIDE.Article 2 (2) of the Statute of the Tribunal defines Genocide as any of the acts including killing members of the group; causing serious bodily or mental harm to the members of the group; deliberately inflicting on the group, conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group, with the intent to destroy in whole or in part, a national, ethnical, racial, or religious group.[]

A crime of genocide is proven if it is established beyond reasonable doubt, firstly, that one of the acts listed under Article 2 (2) of the Statute was committed and, secondly, that this act was committed against a specifically targeted national, ethnical, racial or religious group, with the specific intent to destroy, in whole or in part, that group. Genocide therefore invites analysis under two headings: the prohibited underlying acts and the specific Genocidal intent or dolus specialis.[] In addition to showing that an Accused possessed an intent to destroy the group as such, in whole or in part, the Prosecutor must show the following elements: (1) the perpetrator intentionally killed one or more members of the group, without the necessity of premeditation; and (2) such victim or victims belonged to the targeted ethnical, racial, national, or religious group.[]In order to commit a crime of Genocide, it as a prerequisite element that the perpetrator killed one or more members of the protected group. No evidence implying that the Accused had killed any member of the Cotene group has been produced. The Accused was not even present during the alleged event of Genocide in the village of Zenotia on 15th August 2005. He was driving in the opposite direction towards the town of Rodin. Thus the Accused had not killed any one, nor was he present anywhere near the venue of genocide.

PLEA OF ALIBI

The Accused was not present in the village of Zenotia at the time of Genocide; he would not have rendered any kind of participation in the genocidal activities subject to his absence. Thus pursuant to Rule 67 (A) (2) (a), the appellants have the benefit of alibi. In raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the Accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful[]. Thus the Accused have a strong defence of alibi.

Genocide is distinct from other crimes insomuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged.[] It is this specific intent that distinguishes the crime of genocide from the ordinary crime of murder. The Trial Chamber opines that for the crimes of genocide to occur, the mens rea must be formed prior to the commission of the genocidal acts.[] The Accused does not have any prima facie intention to exterminate the Cotenes. The membership of the Accused in any particular political party need not be construed to constitute the mens rea of the Accused. The allegation regarding the meetings held by the Accused before 2005 is inadmissible as evidence as they are outside the tribunals temporal jurisdiction.[] Moreover no evidence regarding the intention of the Accused to destroy in whole or in part any particular group has been adduced.An argument that the acts or the speech of the Accused had caused mental harm to the members of any group also cannot be sustained as, The drafters of the Genocide Convention . . . unequivocally chose to restrict the meaning of destroy to encompass only acts that amount to physical or biological genocide.[]Pursuant to Article 20 (3) of the Statute, the Accused is presumed to be innocent until proven guilty. Thus while considering circumstantial evidence, where there was another conclusion reasonable open from that evidence inconsistent with the guilt of the Accused, the chamber need not enter a finding of guilt.[]No findings that the Accused was involved in planning, aiding, abetting, instigating, and/or ordering the crimes were made making the Accused not liable for any events subject matter of the charge. Thus the Accused Alijahan is not guilty of the charge of genocide.C. THE APPELLANT IS NOT GUILTY OF THE CRIME OF CONSPIRACY TO COMMIT GENOCIDE.

Conspiracy is one of the four "punishable acts" of genocide, in addition to the crime of genocide itself, declared punishable in Article III of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The reference to conspiracy to commit the crime of genocide in Article III of the Genocide Convention is somewhat enigmatic, and there is nothing further in the text to suggest exactly what is meant. It is not necessarily helpful to look at national legal provisions for guidance, because the termconspiracymeans different things in different criminal codes. Conspiracy to commit genocide is to be defined as an agreement between two or more persons to commit the crime of genocide.[] The offence of conspiracy requires the existence of an agreement, which is the defining element of the crime of conspiracy.[]Mr. Alijahan is charged of conspiracy to commit genocide as per Article 2 (3) (b) of the Statute of UNICTR. Article 2 (3) (b) of the ICTR statute states that conspiracy to commit genocide is a punishable act.

The crime of conspiracy to commit genocide can be proved on the successful satisfaction of the following elements:

a) an agreement to act,b) concerted wills to act, andc) the common goal to achieve the substantive criminal act.[]In the present case concerning Mr. Alijahan, none of the above mentioned elements are satisfied. The first element of having entered into an agreement to act is not satisfied in the instant case. Mr. Alijahan though discussed the state of affairs of the State of Revate with his wife and friends, never entered into any agreement to commit any genocidal acts. If a conspiracy is arbitrarily defined as an agreement of intentions, a meeting of the minds, and not merely of language, that where there is no such agreement of intentions then there is no conspiracy.[] Thus Mr. Alijahan cannot be found guilty as there was no agreement of intention between him and the other alleged members of the criminal enterprise.

The second element mentioning the will to act is also not satisfied. It can be very clearly understood from the facts that Mr. Alijahan had no intent or interest to commit any genocidal acts. All his actions were to bring peace in the State of Revate. Moreover he did not personally commit any acts nor did he aid someone to do an act of genocide. He had the dream of making Revate a Tilen state but nobody can be punished for his thoughts alone, when there is no action in furtherance to it.[]The existence of a common plan cannot be established from the facts. The killings that happened as a result of the clashes from 15 August 2005 to 18 August 2005 were a spontaneous and a terrible reaction to the killing of Bebe Remedeev.[] There was no criminal plan to which Mr. Alijahan was a party to. Thus the act Mr. Alijahan has not satisfied the elements of crime necessary for committing conspiracy to genocide.

In the case of People v. Carter, the US court held that a twofold specific intent is required for conviction for conspiracy: intent to combine with others, and intent to accomplish the offense which is the object of the conspiracy.[] Mr. Alijahan possessed neither of the intentions. He did not intent to combine with others nor did he intent to accomplish the offence. The meetings that he held are alleged to be discussions to destroy the Cotene population. But if Mr. Alijahan had such intention since 1996 he could have carried on an act of violence much before, as he was a leader of a prominent political party and also had enough support among the masses. The clashes that took place between 15 August 2005 and 18 August 2005 were a spontaneous and a terrible reaction to the killing of Bebe Remedeev.[] Mr. Alijahan did everything possible to control the situation with the police force of Revate. He did not posses any guilty intent. His actions did not add momentum to any common criminal purpose.

In the case Regina v. OBrien[], the court held that there is no conspiracy because there is no concurrence of purpose, intention, or determination as the law contemplates in defining conspiracy. Mr. Alijahan too cannot be held guilty of conspiracy to commit genocide as there was no concurrence of purpose, intention or determination. All happened as a result of the killing of Bebe Remedeev. Mr. Alijahan did not act in furtherance to any common purpose nor did he intent to cause the death of so many people. Thus Mr. Alijahan is not guilty of the charge of conspiracy to commit genocide.D. THE APPELLANT IS NOT GUILTY OF THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO COMMIT GENOCIDE.

Article 2(3) of the ICTR statute classifies Direct and Public Incitement to genocide as a punishable offence. Incitement to genocide is qualified by the terms direct& public. Direct and public incitement to genocide has been defined as directly provoking the perpetrators to commit genocide whether through speeches, shouting or threats uttered in public places or at public gatherings..[]. Under civil law the elements of provocation are direct and public. Thus unless these criterions are met the crime of direct and public incitement to genocide is not constituted.Incitement must assume a direct form and specifically provoke another to engage in a criminal act. More than mere vague and indirect suggestions goes to constitute direct incitement.[]The accused Alijahan as chief minister and faithful follower of Bebe Remedeev addressed a public rally in Town Costin. The statements made in this speech are the subject matter of the charge. In the impugned rally no direct provocation to engage in criminal acts were rendered. Alijahan as a faithful follower of Bebe Remedeev only expressed his deep anguish and grief and these do not constitute as direct incitement to genocide. Moreover he even remarked that violence is a terrible thing. This specifically implies that the accused had no intent to incite any violence whatsoever. It is important to note that even when a senior party member uttered the words kill them kill them Alijahan immediately put an end the meeting and even remarked that the talk was frivolous. Alijahan is also reported to have been looking very disturbed at this point, which would not have been the case had he wished to incite people to commit genocide and had successfully done it.

Thus by a mere perusal of the facts in consideration and the events that are subject mater of the charge, it is evident that no direct provocation was rendered.

The famous media case treated two key elements i.e. causation and content. Regarding content the trial chamber focused on two criteria through which speech content regarding race and ethnicity could be classified as legitimate expression or criminal advocacy, its purpose and its context.[] The purpose of the accused addressing the rally is only to share his grief and anguish with the crowd who like he accused were faithful followers of the deceased Bebe Remedeev. The accuseds only intention was to boost he morale of the people who had lost their leader. He had asked them to be strong and stern at the time of his demise.

The crime of incitement requires the intent to directly prompt or provoke another to commit genocide .and the person who is inciting to commit genocide must himself have the special intent to commit genocide, namely to destroy in whole or in part a national racial or religious group as such.[] No evidence implying the criminal intent of the accused to commit or incite commission of genocide is available. The statement made by the accused to his wife while on his way out of the rally premises does not imply the mens rea of the accused. The context of the statement is not aware, the accused need not have necessarily have been specking on the issue of the death of Bebe Remedeev. The accused is presumed to be innocent until the contrary is proved beyond doubt and private statement made by the accused to his wife need tot be construed to cause prejudice to the accused.

Thus the accused had no intent to incite genocide by his words at the rally. Thus the acts of the accused do not satisfy the element of mens rea which is a pre requisite to constitute the crime of direct and public incitement to genocide.

Moreover its is a settled principle of jurisprudence regarding incitement to commit genocide that when there is more than one probable interpretation of a speech it was not clear beyond reasonable doubt that the accused had committed incitement to genocide.[]

As enumerated in the very recent case of Mugesera case[] the Supreme Court of Canada like the ICTR appeals panel found that there is no incitement to genocide where a speech can be interpreted in more than one way.[]Assuming argumento but not accepting facts that some of the members of the audience did understand the accuseds speech as a one propagating hatred, by virtue of it not having the characters prerequisite to constitute incitement, the speech can only be brought within the ambit of a hate speech. Incitement to genocide is codified as a crime in international treaty law, but hate speech is not criminalized under any international treaty.[]To commit incitement to genocide the speaker must have authority or influence over the audience and the audience should already be primed and ready to respond to the speakers words.[] Alijahan was addressing public rally and not of any particular group owing allegiance to him. He did not have any particular influence over the audience. The audience assembled there was not primed up in any way to respond to the words of the accused. Thus, considering that incitement to genocide is an inchoate crime, which need not be successful to have been committed, to restrict speeches not perfectly satisfying, the criterions for incitement would amount to possible harmful restriction of free speech.[] Thus by the perusal of the facts and applicable law in the area it is humbly submitted that the accused is not guilty of direct and public incitement to genocide.E. THE APPELLANT IS NOT PART OF THE ALLEGED JOINT CRIMINAL ENTERPRISE

Joint criminal enterprise is an important legal tool that helps incriminate those that may not have directly committed crimes. If there has been an establishment of some sort of concrete agreement between parties to commit wrongdoings, JCE allows for all perpetrators who were a part of this common criminal plan to be held responsible for the actions of others participating in the plan whether or not all the wrong doings were desired by all involved.[]

Mr. Alijahan is charged of having participated in a joint criminal enterprise with the criminal intent to destroy Cotene population together with his wife Yashode, businessman K.R. Dolme and Mr. Ricardo Melena, the area superintendent of police.[]Category of Joint Criminal Enterprise

The Tadic appeals chamber has categorized joint criminal enterprise into three:

JCE Category One: where all co-defendants, acting pursuant to a common design, possess the same criminal intention; where, in effecting this common design. . . .[]

JCE Category Two: All of the participants in the joint criminal enterprise were members of military or administrative groups acting pursuant to a common plan.[] JCE Category Three: All of the participants were parties to a common plan to pursue one course of action, where one of the parties commits a crime outside the scope of common plan, was nevertheless a natural and foreseeable consequence of executing the common plan. []The prosecution has charged Mr. Alijahan of being a part of joint criminal enterprise that falls under category one and three. The prosecution alleges that the common criminal intention is to destroy the Cotene religious group.[] For a person to be held guilty of a crime there need to be a course of action too.[] Alijahan might had the desire to make the State of Revate a tilen state. But there had not been any action from his part. Persons can be convicted for some crimes by holding the requisite actus reus of that crime but no criminal mens rea.[] Moreover, no one can be punished for his thoughts alone. Until those thoughts manifest themselves into a criminal action, such a thinker is an innocent man, criminally speaking.[]Mr. Alijahan has also been held guilty for the killing of Mr. Vas Deferentiale by Ricardo melina as per JCE category three. The killing of Mr. Vas Deferentiale was not a foreseeable incident. Here Mr. Alijahan is innocent because he did not have the required mens rea and actus reus essential for the crime. It is also proved beyond doubt that Mr. Vas Deferentiale was a bitter enemy of Mr. Ricardo Melina for some personal reason.[] Therefore the killing comes outside the scope of JCE and only Mr. Ricardo Melina is responsible for that killing. Thus Mr. Alijahan was not party to any joint criminal enterprise nor does he bear criminal liability for the acts of others.

Elements of joint criminal enterpriseThe Tadic, Appeals Chamber, has mentioned the objective elements (actus reus) necessary to prove this mode of participation in one of the crimes provided for in the Statute as follows: i. A plurality of persons.

ii. The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute . . .

iii. Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. []Mr. Alijahan is alleged of being a part of joint criminal enterprise together with his wife and friends. The only crime that mr. Alijahan committed was being in the wrong place at the wrong time and had awareness of some wrong persons.[] When his wife spoke at the funeral of Bebe Remedeev calling for an action to teach the Cotenes a lesson, Alijahan noticing that the crowd was turning violent immediately ended the meeting.[] He having discussed the state of affairs of the State of Revate is no ground to establish that he shares the criminal responsibility of the killings that were caused by groups led by K.R. Dolme and Ricardo Melina. importing guilty intent from an accomplice who perpetrates genocide, onto another person is a fundamental misappropriation of the concepts of genocide and mens rea.[] The existence of a common plan cannot be established from the facts. The killings that happened as a result of the clashes from 15 August 2005 to 18 August 2005 were a spontaneous and a terrible reaction to the killing of Bebe Remedeev.[] There was no criminal plan to which Mr. Alijahan was a party to. Mr. Alijahans alleged participation in the barbaric acts that took place in Revate was not one that had any criminal intention nor did it add momentum to any common plan. He was not physically present at any place where the killings took place.

Thus Mr. Alijahan is not party to any joint criminal enterprise nor has he acted in accordance to any common criminal plan or purpose.F. THE APPELLANT DOES NOT INCUR SUPERIOR RESPONSIBILITY FOR ALL THE CRIMES CHARGED AGAINST HIM.

Superior Responsibility is attributed, in the alternative, to the Appellant, Mr. Alijahan, pursuant to Article 6 (3) of the Statute for all the allegations (as per the trial record and the Special Prosecutors closing brief) where Alijahan is found guilty of the crimes indicted against him.[] The allegation B proves that the accused committed Genocide (Under Article 2 (3) (a)), the allegations when taken as a whole proves the commission of Conspiracy to Commit Genocide (Under Article 2 (3) (b)) and allegations A and D proves the commission of Direct and Public Incitement to Commit Genocide (Under Article 2 (3) (c)).[]A plethora of decisions from both the ICTR and the ICTY have formulated the three essential elements of superior/command responsibility[]; which are:

i. the existence of a superior-subordinate relationship of effective control between the accused and the perpetrator of the crime; and,

ii. the knowledge, or constructive knowledge, of the accused that the crime was about to be, was being, or had been committed; and, iii. the failure of the accused to take the necessary and reasonable measures to prevent or stop the crime, or to punish the perpetrator.a) Allegation B does not attribute superior responsibility (Under Article 6 (3)) to Mr. Alijahan for the Commission of Genocide

Since principle of command responsibility will only apply to those superiors who are able to exercise effective control over their subordinates and since it is the touchstone of individual responsibility under Article 6 (3)[] the fact whether the Appellant, Mr. Alijahan, in the case at hand had effective control over the perpetrators of the alleged crime has to be narrowly analysed.

According to Allegation B around 500 Cotenes were killed in the Village of Zenotia on 15th August, 2005. The attack on the Cotenes was unleashed by a group of 100 persons which was led by Mr. K. R, Dolme. At the same time Mr. Alijahan was on travel to Town Rodin[] after attending Bebe Remedeevs funeral.[] The perpetrators, Mr. K.R. Dolme and the 100 persons were not under the effective control of the Appellant, as there was no existence of a superior-subordinate relationship between the Appellant and Mr. Dolme, which is a required element to incur superior responsibility.[] The actual control of the assailant was in the hands of Mr. Dolme while the commission of the crimes. Thus Mr. Alijahan lacked effective control over the perpetrators of the crime which is a prerequisite to attribute superior responsibility.[] Even though Mr. Alijahan was a close friend and a confidant of Mr. Dolme he couldnt have knowledge of all the activities. Even a superior whose position significantly indicates his/her knowledge of the crime cannot be prosecuted on the presumption on the basis of his/her position alone.[] Thus superior responsibility cannot be attributed to Mr. Alijahan for the crime of Genocide.

b) All the allegations taken together does not attribute superior responsibility (Under Article 6 (3)) to Mr. Alijahan for the commission of Conspiracy to Commit Genocide

After reading through all the allegations recorded in the trial record and the Special Prosecutors closing brief, the only sub-ordinate present in the backdrop of the alleged conspiracy is Mr. Ricardo Melena, area Superintendent of Police. But having a superior sub-ordinate relationship does not by default attribute superior responsibility. There ought to have the satisfaction of the remaining elements of knowledge and post crime actions of the superior. The acts of Mr. Ricardo Melena as recorded in the Allegations other than that of the attendance in the meetings between the members of the alleged Joint Criminal Enterprise were during the rally at the Yuvkone cricket stadium and the killing at the MRF housing colony.[] The killing of Mr. Vas Deferentiale actually points to the exercise of a personal vendetta between the deceased and Mr. Ricardo Melena rather than a conspired act of genocide.[] Thus there is an absence of an act of conspiracy from the part of Mr. Ricardo Melena. Moreover Mr. Alijahan was not a military commander over Mr. Melena. His superiority came under the category other superior as propounded in the Kayishema and Ruzindana case[] It gave the Appellant only very less active duty over Mr. Ricardo which enabled him only to receive less information over the activities of his subordinate. So the requirement[] that he must have known or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes is not fulfilled. So, superior responsibility cannot be attributed to Mr. Alijahan for Conspiracy to Commit Genocide.c) Allegations A and D does not attribute superior responsibility (Under Article 6 (3)) to Mr. Alijahan for the commission of Direct and Public Incitement to Commit Genocide

Allegation A refers to the funeral of Bebe Remedeev during which three persons, the Appellant, his wife Mrs Yashode and a senior member of the YLS political party made speeches regarding the murder of Bebe Remedeev and also as to how the Tilens ought to react.[] This allegation along with Allegation D was used by the Trial Chamber in proving Direct and Public Incitement to Commit Genocide. But after going through Allegation D one can see that apart from Mr. Alijahan no one had even spoken a word. There was no act of incitement to commit genocide committed by the sub-ordinates of Mr. Alijahan. Thus there is an absence of the actus reus from the part of the sub-ordinates. So Allegation D does not attribute superior responsibility to Mr. Alijahan. In Allegation A the very fact that the party member, who exhorted the crowd to kill the Cotenes, was termed senior[] denies the existence of a superior-subordinate relationship between him and the Appellant. Thus superior responsibility for commission of Direct and Public Incitement to Commit Genocide cannot be attributed to the Appellant.PRAYERFor all the aforementioned reasons argued in this memorial and arguments orally advanced, the Defence humbly moves the Honourable Tribunal to rely on the authorities cited and declare and adjudge that:

A. THE TRIAL CHAMBER JUDGEMENT VIOLATES THE RIGHTS OF THE APPELLANT.

B. THE APPELLANT IS NOT GUILTY OF THE CRIME OF GENOCIDE.

C. THE APPELLANT IS NOT GUILTY OF THE CRIME OF CONSPIRACY TO COMMIT GENOCIDE.

D. THE APPELLANT IS NOT GUILTY OF THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO COMMIT GENOCIDE.

E. THE APPELLANT IS NOT PART OF THE ALLEGED JOINT CRIMINAL ENTERPRISE

F. THE APPELLANT DOES NOT INCUR SUPERIOR RESPONSIBILITY FOR ALL THE CRIMES CHARGED AGAINST HIM,or pass any other order that the court may deem fit, for which the Defence shall forever be obliged.

Sd/- (Counsels for the Appellant) Prosecutor v. Stakic, ICTY, IT-97-24, Appeals Chamber, Judgement, para 219; Prosecutor v. Kuprekic, ICTY, IT-95-16, Appeal Chamber, Judgement, para 303; Prosecutor v. Kordi and erkez, ICTY, IT-95-14/2, Appeals Chamber, Judgement, para 834; Prosecutor v. Ntagerura, ICTR-96-10A, Appeals Chamber, Judgement, para 174-175

Prosecutor v. Akayesu, ICTR-96-4, Appeal Chamber, Judgement, para 203; Prosecutor v. Furundija, ICTY, IT-95-17/1, Appeals Chamber, Judgement, para 189; See also, Prosecutor v. Gali, ICTY, IT-98-29, Appeals Chamber, Judgement, para 38-39; Prosecutor v. Rutaganda, ICTR-96-3, Appeals Chamber, Judgement, para 39; Prosecutor v. Muci et al, ICTY, IT-96-21, Appeals Chamber, Judgement, para 682

Prosecutor v. Nyiramasuhuko, ICTR-97-21, Appeals Chamber, 4 October 2004, para 26; Prosecutor v. Karemera et al., ICTR-98-44-AR15bis.3, Decision on Appeals pursuant to Rule 15bis(D), 20 April 2007, para. 27

Prosecutor v. Tadic, ICTY, IT-94-1, Appeals Chamber, July 15, 1999, para. 43, 44, 48, 52

Prosecutor v. Nahimana, ICTR-96-11, Appellants brief, para 173-181

As defined in the Convention on the Prevention and Punishment of the Crime of Genocide, 1948

Prosecutor v. Bagilishema, ICTR-95-1A, Trial Chamber, June 7, 2001, para 55

Prosecutor v. Semanza, ICTR-97-20, Trial Chamber, May 15, 2003, para 319

Prosecutor v. Musema, ICTR-96-13, Trial Chamber, para 108; Confirmed on appeal (Appeals Chamber) para 205-206

Prosecutor v. Akayesu, ICTR-96-4, Trial Chamber, September 2, 1998, para 498, 517-522

Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Trial Chamber, May 21, 1999, para 91

Prosecutor v. Nahimana, Barayagwiza, & Ngeze, ICTR 99-52, Appeals Chamber, Judgement, para 695

Prosecutor v. Semanza,ICTR-97-20, Trial Chamber, May 15, 2003, para 315

Prosecutor v. Bikindi, ICTR-01-72, Trial Chamber, Judgement, para 30

Prosecutor v. Musema, ICTR-96-13, Trial Chamber, January 27, 2000, para 191; See also, Prosecutor v. Ntakirutimana and Ntakirutimana, ICTR-96-10 and ICTR-96-17, Trial Chamber, February 21, 2003, para 798; Prosecutor v. Niyitegeka, ICTR-96-14, Trial Chamber, May 16, 2003, para 423; Prosecutor v. Nahimana, Barayagwiza, & Ngeze, ICTR 99-52, Trial Chamber, December 3, 2003, para 1041

Prosecutor v. Nahimana, Barayagwiza, & Ngeze, ICTR 99-52, Trial Chamber, December 3 2003, para 1042

Memorandum to Deputy Prosecutor of the International Criminal Tribunal for Rwanda from Lorin Einhorn; January 9, 2004

State of Minnesota v. Christopher, 305 Minn. 226, 231 (1975)

Matthew Lippman, GENOCIDE, ed. M.C.Bassiouni, International Criminal Law, Second Edition, Volume I

Statement of Facts

People v. Carter, 415 Mich. 558 (1982)

Statement of Facts

R v.O'Brien, [1978] 1 S.C.R. 591

Prosecutor v. Akayesu, ICTR-96-4, Trial Chamber, 2nd September 1998, para 559

ibid

Prosecutor v. Nahimana, ICTR 99-52-, Trial Chamber, Judgement, para I004-1006

Prosecutor v. Akayesu, ICTR-96-4, Trial Chamber, 2nd September 1998, para 559; See also, Prosecutor v. Ruggiu, ICTR-97-32, Trial Chamber, June 1, 2000, para 14; Prosecutor v. Niyitegeka, ICTR-96-14, Trial Chamber, May 16, 2003, para 431; Prosecutor v. Nahimana, Barayagwiza, & Ngeze, ICTR 99-52, Trial Chamber, December 3, 2003, para 1012

Nahimana c. Le Procureur, Affaire No. ICTR 99-52-A, Arrt, 73851 (Nov. 28, 2007). [At press time for this Article, this decision was not yet available in English. All citations are to the French version, and translations are the authors.] 20. Id. 738-51, 754.

Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100: 2005 SCC 40

ibid

Incitement to genocide is criminalized in Article 3 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. Convention on the Prevention and Punishment of the Crime of Genocide Art. 2 (c), Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951). Moreover, there are international tribunals (including the International Criminal Tribunal for the Former Yugoslavia (ICTY), the ICTR, and the International Criminal Court) with jurisdiction to try defendants for incitement to genocide. By contrast, international treaties call upon states to criminalize hate speech in their own municipal law, and it is not codified in the statutes of any of the international tribunals. See, Vile Crime or Inalienable Right: Defining Incitement to Genocide, Susan Benesch, Virginia Journal Of International Law,2008, Volume 48: 3, p 485

William A. Schabas, Genocide In International Law: The Crime of Crimes, The Press Syndicate of the University of Cambridge, Cambridge (UK), 2000, 1st Edition, p 266

Vile Crime or Inalienable Right: Defining Incitement to Genocide, Susan Benesch, Virginia Journal Of International Law,2008, Volume 48: 3, p 485

Tilman Blumenstock, The Judgement of the ICTY in the Brdjanin Case, Leiden Journal of International Law 18, No. 1(March 2005):71

Introduction, Summary of Trial Chamber Judgment

Prosecutor v. Tadic, ICTY, IT-94-1, Appeals Chamber, July 15, 1999, para 195-196, 202-204

Prosecutor v. Brdjanin, ICTY, IT-99-36, Trial Chamber, September1 2004

Id.

Introduction, Summary of Trial Chamber Judgment

Allison M. Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 CAL. L. REV. 75-170 (2005)

Matthew Lippman, GENOCIDE, ed. M.C.Bassiouni, International Criminal Law, Second Edition, Volume I

Id

Allegation F, Summary of Trial Chamber Judgment

Prosecutor v. Tadic, ICTY, IT-94-1, Appeals Chamber, July 15, 1999, para 227

Interview with the Honble Judge Bonomy at the ICTY, Hague

Allegation A, Summary of Trial Chamber Judgment

Pamela Hediger, Mens rea: The Impasse of Law and Psychiatry. Gonzaga Law Review 26 (1991) 615

Statement of Facts

Legal Findings, Summary of Trial Chamber Judgement

Ibid

Prosecutor v. Bagilishema, ICTR-95-1A, Trial Chamber, June 7, 2001, para 38, Prosecutor v Semanza, ICTR-97-20, Trial Chamber, May 15, 2003, para 401, Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Trial Chamber, May 21, 1999, para 229-231, Prosecutor v. Kordic and Cerkez, ICTY,IT-95-14/2, Trial Chamber, February 26, 2001, para 401, Prosecutor v. Blaskic, ICTY, IT-95-14, Trial Chamber, March 3, 2000, para 294,

Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Trial Chamber, May 21, 1999, para 229-231, See also Prosecutor v. Bagilishema,ICTR-95-1A, Trial Chamber, June 7, 2001, para 45

Allegation B and C

Allegation A

Prosecutor v. Semanza, ICTR-97-20, Trial Chamber), May 15, 2003, para 401

Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Trial Chamber, May 21, 1999, para 229-231; See also, Prosecutor v. Bagilishema, ICTR-95-1A, Trial Chamber, June 7, 2001, para 45; Prosecutor v. Ntakirutimana and Ntakirutimana,ICTR-96-10 and ICTR-96-17, Trial Chamber, February 21, 2003, para. 819

Prosecutor v. Bagilishema, ICTR-95-1A, Trial Chamber, June 7, 2001, para 45

Allegations E and F, Summary of Trial Chamber Judgement

Allegation F, Summary of Trial Chamber Judgement

Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Trial Chamber, May 21, 1999, para 227-228

id

Allegation A, Summary of Trial Chamber Judgement

id