Team 8 - Memorial of the Defense - Pace Universitylawweb.pace.edu/files/ICC/2011/Team_8_Defense.pdf · 2011-01-18 · Team 8 / Memorial of the Defense ICC-01/11 1 5 January 2011 Original:

Team 8

Memorial of the Defense

Pace / ICLN International Criminal Court Moot Court Competition North American Round

Submitted 5 January 2011

Team 8 / Memorial of the Defense

ICC-01/11 5 January 2011 1

Original: English No.: ICC-01/11 Date: 5 January 2011

PRE-TRIAL CHAMBER I

Before: Judges of the Pace ICC Moot Court Competition Registrar: Registrar of the Court

SITUATION IN BRISK IN THE CASE OF

THE PROSECUTOR v. JOHN EVANS

MEMORIAL OF THE DEFENSE

The Office of the Defense Counsel Team 8

PRE TRIAL CHAMBER 5

THE 2009 PACE LAW SCHOOL

INTERNATIONAL CRIMINAL COURT

MOOT COURT COMPETITION

In the case of

Prosecutor

v.

General Eric Torzow

MEMORIAL SUBMITTED ON BEHALF OF THE

VICTIMS

TEAM NO. 10


ICC-01/11 5 January 2011 2

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ......................................................................................................... 3 INDEX OF AUTHORITIES ........................................................................................................... 4

STATEMENT OF FACTS ............................................................................................................. 7 ISSUES PRESENTED ................................................................................................................. 10

SUMMARY OF ARGUMENT .................................................................................................... 11 JURISDICTIONAL STATEMENT ............................................................................................. 12

ARGUMENT ................................................................................................................................ 12 Subject Matter Jurisdiction ....................................................................................................... 13 Personal Jurisdiction ................................................................................................................. 17 Violations of John Evans’ Rights ............................................................................................. 20 Representation of the Alleged Victims ..................................................................................... 24


ICC-01/11 5 January 2011 3

LIST OF ABBREVIATIONS

Art. Article Article 8bis Amendment to the Rome Statute of the

International Criminal Court on the Crime of Aggression, codified as document RC/Res.6 of the 13th Plenary Meeting of the Assembly of States Parties (11 June 2010), Annex I ¶ 2 & Annex II.

Article 15bis Amendment to the Rome Statute of the International Criminal Court on the Crime of Aggression, codified as document RC/Res.6 of the 13th Plenary Meeting of the Assembly of States Parties (11 June 2010), Annex I ¶ 3.

Facts and Procedural History International Criminal Court Trial Competition Case, April 2011

ICC International Criminal Court

ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the

former Yugoslavia No. Number

Rome Statute Text of the Rome Statute of the International Criminal Court circulated as document A/CONF.183/9 of 17 July 1998 and corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002.

U.N. United Nations


ICC-01/11 5 January 2011 4

INDEX OF AUTHORITIES

Cases Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Advisory

Opinion, 2002 I.C.J. 3 (Feb. 14) ............................................................................................... 22 Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.

Nigeria), 2002 I.C.J. 94 (October 10) ....................................................................................... 13 Eritrea/Ethiopia, Partial Award, Ius Ad Bellum Ethiopia’s Clams 1–8 at ¶ 10, 2006 I.L.M. 430

(Eritrea/Ethiopia Claims Commission Dec. 19, 2005), available at http://www.pca-cpa.org . 14 Lubanga, Decision on the Schedule and Conduct of the Confirmation Hearing ¶ 4 (Nov. 7, 2006)

................................................................................................................................................... 25 Lubanga, Judgment of the appeals of The Prosecutor and The Defense against Trial Chamber I’s

Decision on Victims’ Participation of 18 January 2008 ¶ 39 (July 11, 2008) .......................... 24 The Prosecutor v. Germain Katanga, Decision on the Set of Procedural Rights Attached to

Procedural Status of Victim at the Pre-Trial Stage of the Case ¶ 182–184 (May 13, 2008), http://www.icc-cpi.int/iccdocs/doc/doc486390.pdf .................................................................. 26

The Prosecutor v. Jean-Pierre Bemba Gombo, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo ¶ 24, ICC-01/05-01/08 (June 10, 2008)................................................................................................................................................... 21

The Prosecutor v. Momir Nikolic, , Decision on Interlocutory Appeal Concerning the Legality of Arrest ¶ 19, IT-940-AR73 (June 5, 2003) ................................................................................. 19

The Prosecutor v. Thomas Lubanga Dyilo, Decision on victims’ participation ¶ 92, ICC-01/04-01/06-1119 (Jan. 18, 2008) ........................................................................................... 24, 25, 26

The United States of America v. Goering, Judgment, 16 (Int’l Military Trib. at Nuremberg Oct. 1, 1946), http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Nazi-opinion-judgment.pdf ........ 17

Statutes Article 98 ................................................................................................................................ 22, 23 Rome Statute, Article 1 ................................................................................................................. 12

Rome Statute, Article 27 ............................................................................................................... 22 Rome Statute, Article 32 ............................................................................................................... 18

Rome Statute, Article 55 ............................................................................................................... 21 Rome Statute, Article 61(5) .......................................................................................................... 11

Rome Statute, Article 66 ............................................................................................................... 26 Rome Statute, Article 68 ......................................................................................................... 23, 26

Rome Statute, Article 85 ............................................................................................................... 21 Rome Statute, Article 8bis ................................................................................................ 12, 15, 18


ICC-01/11 5 January 2011 5

Rome Statute, Articles 90–91 ....................................................................................................... 25 STATUTE OF THE ICTR, Article 19, http://www.un.org/ictr/statute.html ...................................... 26

STATUTE OF THE ICTY, Article 20, http://www.icls.de/dokumente/icty_statut.pdf ...................... 26 Other Authorities Christian DeFrancia, Due Process in International Criminal Courts: Why Procedure Matters, 87

VA. L. REV. 1381, 1404 (2001) ........................................................................................... 20, 21

Christine Gray, The Eritrea/Ethiopia Claims Commission Oversteps its Boundaries: A Partial Award, 17 EUR. J. INT’L. L. 699, 713 (2006) ............................................................................ 14

Claus Kreß & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. INT’L. CRIM. JUST. 1179, 1193 (2010) ................................................................................ 15

Dragana Radosavljevic, Mala Captus Bene Detentus and the Right to Challenge the Legality of Arrests, 29 LIVERPOOL L. REV. 269, 281 (2008) .......................................................... 11, 20, 22

Enrico Milano & Irini Papanicolopulu, Territorial Disputes and State Responsibility on Land and at Sea, Paper Presented at ............................................................................................ 13, 14

Kevin Jon Heller, Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression, 18 EUR. J. INT’L. L. 477, 479 (2007) ..................................................................... 17

Kreß & von Holtzendorff .............................................................................................................. 18 Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New

Millennium: Lessons from the Yugoslavia Tribunal, 49 DEPAUL L. REV. 925, 965–968 (2000)................................................................................................................................................... 20

Salvatore Zappala, The Rights of Victims v. the Rights of the Accused, 8 J. INT’L. CRIM. JUST. 137, 140–146 (2009) ................................................................................................................. 26

Steven Feldstein, Applying the Rome Statute of the International Criminal Court: A Case Study of Henry Kissinger, 92 CAL. L. REV. 1663 (2004) ........................................................ 12, 13, 14

Rules RULES OF PROCEDURE AND EVIDENCE, Rule 2, IT/32/Rev. 43 (ICTY 2009) ......................... 23, 24

RULES OF PROCEDURE AND EVIDENCE, Rule 85, ICC-ASP/1/3 (2002) ........................................ 23 Treaties American Convention on Human Rights, Article 8(2)(h), Nov. 22, 1969, 1144 U.N.T.S. 123 ... 22 International Covenant on Civil and Political Rights art. 9, Dec. 16, 1966, 999 U.N.T.S. 171 .. 20,

22 U.N. CHARTER, Article 51 ............................................................................................................ 13

U.N. Convention on the Law of the Sea, Article 87, Dec. 10, 1982, 1833 U.N.T.S. 397 ............ 14 Vienna Convention on Diplomatic Relations, Article 41, April 18, 1961, 500 U.N.T.S. 95 ....... 22

Resolutions G.A. Res. 3314 (XXIX), Annex, U.N. Doc. A/RES/3314 (Dec. 14, 1974) ................................. 12


ICC-01/11 5 January 2011 6

Universal Declaration of Human Rights, Article 8, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) ............................................................................................... 22


ICC-01/11 5 January 2011 7

STATEMENT OF FACTS

1. Brisk and Ulva are two neighboring countries that suffer from a long history conflict and

disputes.1 Both are members of the United Nations and are parties to major human rights treaties,

both became States parties to the ICC in 2004, and neither has lodged a declaration opting out of

the crime of aggression pursuant to Art. 15bis (4) of the Rome Statute.2 Ulva has a large

coastline with five big seaports, whereas Brisk claims only a very small coastline with one port

in the city of Gyst.3 This coastline is also claimed by Ulva as part of its coastline, and 30 percent

of the inhabitants are of Ulvan ethnicity.4 Ulva is very concerned about responding to increased

military activities in its claimed port of Gyst, including the strengthening of the Briskan navy.5

2. In July 2016, elections were held in Ulva and the New Democratic Party (NDP) won the

elections.6 Benny Thompson became the new president.7 Defendant John Evans, a close friend of

Thompson’s, became the leader of the NDP in parliament.8 Evans is therefore not officially a

part of the government, even though he makes comments on aspects of government policy.9

3. After the Ulvan elections, a series of incidents led to a further deterioration of relations

between Brisk and Ulva.10 The Ulvan government was provoked by arms deliveries by

superpowers to Brisk, and the tensions were further enhanced when President Thompson’s two

sons were arrested while studying in Brisk.11 As a result of mounting tensions in its claimed

territory, Ulva sent out its large and fully-armed fleet to blockade and protect the Port of Gyst on

12 February 2018. The fleet was instructed to “use all necessary means to prevent every ship

from entering or leaving the port of Gyst,” and this instruction was supported by a collective 1 Facts and Procedural History ¶ 2. 2 Id. at ¶ 1. 3 Id. at ¶ 2. 4 Id. 5 Id. 6 Facts and Procedural History ¶ 3. 7 Id. 8 Id. at ¶ 4. 9 Id. 10 Id. at ¶ 5. 11 Facts and Procedural History ¶ 5.


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decision of the Ulvan government.12 Brisk and its population claim that they have suffered from

this blockade.13

4. The blockade is the only hostile act that has occurred between the two States.14 The

blockade decision was taken by the Ulvan government pursuant to Article 73 of the Constitution

of Ulva, which stipulates that a declaration of war requires two-thirds or votes in parliament.15

Ulva never declared war, and maintains that the conflict with Brisk falls short of a war within the

meaning of Article 73 of the Ulvan Constitution.16 John Evans has repeatedly stated that this was

a decision for the government to make, even though he has at times publicly supported President

Thompson’s Administration in its position in the conflict with Brisk.17

5. The U.N. Security Council did not decide that an act of aggression occurred, even though

on 1 April 2018 the U.N. Security Council determined by a unanimous vote in Resolution 8679

that the blockade amounted to a breach of and threat to international peace and security and

condemned Ulva for its actions.18 On 12 May 2018 the ICC Prosecutor announced his intention

to start an investigation – acting proprio motu – into the conflict between Brisk and Ulva.19

Following the ICC prosecutor’s notification, the Security Council could conclude that Ulva had

committed an act of aggression.20 Six months later, on 11 November 2018, the ICC prosecutor,

pursuant to Art. 15bis (8), requested authorization from the Pre-Trial Chamber to proceed with

an investigation into the crime of aggression, and received authorization on 11 December 2018.21

6. On 15 January 2019 the Prosecutor, on the basis of his investigation, submitted to the

Pre-Trial Chamber an application for an arrest warrant for Defendant John Evans.22 The

application alleged that “from 12 February 2018 onwards, John Evans and others committed the

12 Id. at ¶ 6. 13 Id. at ¶ 7. 14 Id. at ¶ 8. 15 Id. at ¶ 9. 16 Facts and Procedural History ¶ 9. 17 Id. at ¶ 10. 18 Id. at ¶ 12. 19 Id. at ¶ 11. 20 Id. at ¶ 13. 21 Facts and Procedural History ¶ 13. 22 Id. at ¶ 14.


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crime of aggression (Article 8bis and Article 25 (3) (a) of the Rome Statute).”23 The Prosecutor

submitted evidence that John Evans, being the political leader of the major government party in a

Democratic State was – with others – in effective control over government decisions and failed

to take the necessary and reasonable steps to alter Government decision-making.24

7. On 15 February 2019 the Pre-Trial Chamber honored the application and issued an arrest

warrant for Evans.25 It requested Ulva and all other States parties to the Rome Statute to

cooperate within their jurisdiction in the arrest and surrender of Evans.26 On 19 February 2019,

Ulvan President Thompson said that Evans, enjoying immunity as a member of parliament,

could not be arrested and surrendered to the ICC.27

8. On 24 February 2019, John Evans visited Konera, a country in the region that is not a

State Party to the Rome Statute, for a meeting with friends.28 During his visit, Evans went to a

casino that was on the border with Arduum, which is a State Party to the Rome Statute.29 Since

gambling is illegal in Konera, the casino is organized so that the gambling takes place in

Arduum, while the other facilities are located in Konera.30

9. When Evans found out that the gambling was taking place on Arduum territory, he

purposefully decided to wait in the bar for his friends – thereby remaining in Konera.31 While

waiting, private security staff requested he come with them for a security check, but Evans

refused to proceed into the gambling area that lies in Arduum’s territory.32 Unwilling to allow

Evans to remain peacefully at the bar, the security officers took him by force against his will to

23 Id. 24 Id. at ¶ 15. 25 Id. at ¶ 16. 26 Facts and Procedural History ¶ 16. 27 Id. at ¶ 17. 28 Id. at ¶ 18. 29 Id. 30 Id. 31 Facts and Procedural History ¶ 19. 32 Id.


ICC-01/11 5 January 2011 10

the security desk.33 An identity check revealed that Evans was on an arrest list; security officers

notified the police, and subsequently took him into custody in Arduum.34

10. On 1 March 2019 a surrender hearing took place in Arduum pursuant to the ICC arrest

warrant.35 Even though Evans claimed that he had been unlawfully arrested and abducted to

Arduum, both the national court and the responsible Minister indicated that their only choice was

to execute the arrest warrant. They concluded that it was not open to them to challenge the

warrant’s validity.36 On 5 March 2019, Evans was surrendered to the ICC, and the case was

assigned to Pre-Trial Chamber 6 to hold a confirmation hearing within a reasonable time.37

11. A few weeks before the confirmation hearing, which was scheduled for 17 May 2019,

20,000 Briskan nationals (primarily consisting of inhabitants of the Port of Gyst), filed a request

to be recognized as victims and to participate in the proceedings against Defendant Evans.38

These applicants were represented by one counsel, who claimed that they were deprived of food

and other important resources and that they had been living in constant fear of attack by the

Ulvan fleet.39 On 2 April 2019, the Pre-Trial Chamber granted the applicants a provisional status

of victims, B01 – B20,000.40 The victims were attributed participatory rights, including the right

to make submissions in relation to all point on the agenda for the confirmation hearing.41

ISSUES PRESENTED

12. The Defense submits that the following issues exist to be decided by the Court at John

Evans’ confirmation hearing: 1) Whether the Court should dismiss this case because it lacks

subject matter and personal jurisdiction in this case; 2) Whether, regardless of whether the Court

has jurisdiction, this case should be set aside and Defendant John Evans should be released due

33 Id. 34 Id. 35 Id. at ¶ 20. 36 Facts and Procedural History ¶ 20. 37 Id. at ¶ 21. 38 Id. at ¶ 25. 39 Id. 40 Id. at ¶ 26. 41 Facts and Procedural History ¶ 26.


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to the egregious human rights and procedural violations he has suffered at the hands of the State

of Arduum and this Court when he was forcibly moved into their jurisdictions in order to be

arrested; 3) Whether the victims B01 – B20,000 should be given participatory rights, and if so,

whether this includes any rights to make submissions of evidence in relation to any points on the

agenda for the confirmation hearing.

SUMMARY OF ARGUMENT

13. This case improperly comes before this Court after grave violations of Defendant John

Evans’ individual rights. Evans, the leader of the New Democratic Party in Ulva, was wrongfully

kidnapped and arrested in Arduum and accused of committing aggression against Brisk.42

Because this Court lacks jurisdiction to hear the case, and because Evans’ procedural rights and

human rights have been violated in the execution of his arrest and detention, Defendant Evans

respectfully requests this Court to dismiss the charges brought against him and set him free.

14. The Court should dismiss this case because it does not have jurisdiction over the alleged

crime. The Court lacks subject matter jurisdiction because the Prosecutor has not presented

sufficient evidence to establish substantial grounds to believe that Ulva committed an act of

aggression via the blockade because the relevant action occurred entirely in disputed territory.

Even if the Court does find that the blockade was an act of aggression, it was not of sufficient

character, gravity, and scale to constitute a manifest violation of the U.N. Charter, which is a

precondition of this Court’s subject matter jurisdiction over the crime of aggression.

15. Regardless of jurisdiction, this Court should release Defendant John Evans due to the

egregious violations of his human rights and procedural rights that he has suffered during his

arrest and detention. Evans was forcefully abducted in order to be arrested pursuant to an arrest

warrant that was not granted on the grounds of sufficient evidence. Moreover, Evans was not

given the right to challenge this warrant or appeal the finding of the national court in Arduum

that his procedural and human rights were violated. Because the Court should not abide by the

42 Id. at ¶ 4 & 19.


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principle mala captus bene detentus,43 Evans must be released in the interests of justice in order

to maintain the legitimacy of this Court.

16. Finally, applicants B01 – B20,000 should not maintain victim status because they have

not suffered any cognizable harm before this Court. No crime is properly before this Court’s

jurisdiction, and even if the alleged crime is, it was not targeted at these victims. The harm that

they have suffered is general in nature, and when weighed against the Defendant’s rights to a fair

trial does not merit their participation. If the Court finds that they are victims with the right to

participation, the Court must still undertake its duty to limit the prejudice to the Defendant by

only allowing them to participate in the stages of trial relevant to their harms, and by preventing

them from introducing any additional evidence.

JURISDICTIONAL STATEMENT

17. On 15 February 2019 the Pre-Trial Chamber ruled that the ICC appears to have

jurisdiction; that the case appears to be admissible; that there is sufficient evidence; and that

there are grounds to justify arrest and surrender.44 Nevertheless, the defense maintains that the

Court does not have jurisdiction over the crimes for which the Prosecutor seeks confirmation. All

the grounds on which the court can base its jurisdiction do not exist in the case at hand, as will be

explained below.

ARGUMENT

18. At the Confirmation stage of the hearings, the Prosecutor must support each charge with

sufficient evidence to establish substantial grounds to believe that the person committed the

crime charged.45 Here, the Prosecutor has charged Defendant John Evans with the crime of

aggression. Therefore, in order to establish jurisdiction the Prosecutor must show that the

43 Literally meaning “wrongly captured, properly detained,” the phrase stands for the concept that a wrongful arrest should not prejudice a subsequent trial. However, this concept is contrary to the rights of criminal defendants under customary international law. See Dragana Radosavljevic, Mala Captus Bene Detentus and the Right to Challenge the Legality of Arrests, 29 LIVERPOOL L. REV. 269, 281 (2008). 44 Facts and Procedural History ¶ 16. 45 Rome Statute, Article 61(5).


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Defendant John Evans planned, perpetrated, initiated, or executed an act of aggression which by

its character, gravity, and scale constitutes a manifest violation of the Charter of the United

Nations, while he was in a position to effectively exercise control over or to direct the political or

military action of Ulva.46 Because both the subject matter and personal jurisdictional

requirements of the Rome Statue cannot be satisfied in this case, the Court cannot hear this case.

Subject Matter Jurisdiction

19. An act of aggression is the “use of armed force by a State against the sovereignty,

territorial integrity or political independence of another State, or in any manner inconsistent with

the Charter of the United Nations.”47 Although Article 8bis and United Nations General

Assembly Resolution 3314 (XXIX) of December 197448 specifically mention that blockades

qualify as an act of aggression, the blockade at issue in this case does not suffice to create

jurisdiction because it did not violate the territorial integrity or political independence of Brisk.

Ulva had a legitimate claim to the port of Gyst, and even if Ulva’s claim to the port of Gyst is not

valid, the ICC is not the proper tribunal to resolve this territorial dispute. Furthermore, should the

ICC choose to rule against Ulva on the territorial dispute, Evans’ good faith mistake over the use

of the blockade in disputed territory did not constitute a manifest violation of the U.N. Charter.

20. Unlike the International Court of Justice, which has jurisdiction over States and is a

tribunal whose competence includes territorial disputes, this Court only has “the power to

exercise its jurisdiction over persons for the most serious crimes of international concern.”49

Although Article 59 of the ICJ statute makes clear that the common law notion of precedent

(stare decisis) does not apply to decisions of the ICJ, its decisions do bind the parties to that

particular controversy, and international lawyers commonly operate as though ICJ judgments had

precedential value.50 Therefore, the ICC should respect the holdings and the jurisdiction of the

46 Rome Statute, Article 8bis. 47 Id. 48 G.A. Res. 3314 (XXIX), Annex, U.N. Doc. A/RES/3314 (Dec. 14, 1974). 49 Rome Statute, Article 1 (emphasis added). 50 See generally Steven Feldstein, Applying the Rome Statute of the International Criminal Court: A Case Study of Henry Kissinger, 92 CAL. L. REV. 1663 (2004).


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ICJ. While this understanding was never codified in the Rome Statute, it was the understanding

of the Rome Statute’s framers that the Court would cooperate with other international tribunals.51

21. Because Ulva has claimed a right to the territory in the port of Gyst, this Court cannot

find that John Evans committed an act of aggression that violated the territorial integrity of Brisk

without implicitly ruling on the territorial dispute between Ulva and Brisk. Since the ICC does

not have jurisdiction over States, and should respect the jurisdiction of the ICJ over territorial

disputes, it should decline to exercise jurisdiction over John Evans until a ruling has been made

on the territorial dispute by the ICJ, rather than making this determination on its own.

22. Should the ICC choose to rule on the territorial dispute, it should find that the disputed

territory in the port of Gyst belonged to Ulva and that the blockade constituted permissible self-

defense of that territory rather than an act of aggression. Even if the Court resolves the territorial

dispute in favor of Brisk, the Court cannot hold any Ulvan actor, including defendant John

Evans, responsible for a good faith mistake in his interpretation of a legitimate territorial dispute.

23. Customary international law provides that a State exercises sovereignty over its land

territory and its jurisdiction in adjacent maritime zones.52 Sovereignty includes the possibility of

acting upon a territory and excluding other States from acting thereupon.53 Moreover, Article 51

of the UN Charter provides that all members of the United Nations have the inherent right to act

in self-defense on their territory.54 The International Court of Justice recognized these rights in

the dispute between Cameroon and Nigeria over the Lake Chad region in which Nigeria used

force to secure its claim to the region.55 In that case, Nigeria argued that a legitimate dispute

existed between the two states, and that in Nigeria’s opinion it used force only in self-defense to

resolve internal problems in response to encroachment by Cameroon.56 Although the ICJ only

ruled on the boundary dispute, it granted Cameroon’s claims and decided not to rule on whether

Nigeria has illegally used force. This decision has been considered an acceptance of Nigeria’s 51 See id. 52 Enrico Milano & Irini Papanicolopulu, Territorial Disputes and State Responsibility on Land and at Sea, Paper Presented at “The State of Sovereignty Conference,” Durham University (2009), http://www.dur.ac.uk/resources/ibru/conferences/sos/milano_papanicolopulu_paper.pdf. ) 53 Id. 54 U.N. CHARTER, Article 51. 55 See Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), 2002 I.C.J. 94 (October 10). 56 Id.


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argument that its good faith mistake did not give rise to a violation of international law.57

Similarly, here there is at least a legitimate dispute over the territory in Gyst, and the Ulvan

government acted only in self-defense in response to provocations by Brisk.58

24. This Court must distinguish the Nigeria case from the dispute between Eritrea and

Ethiopia, in which an ad hoc Claims Commission established by agreement of the parties (which

should carry less precedential weight than the ICJ, an organ of the U.N.), held that “self-defense

cannot be invoked to settle territorial disputes.”59 In that dispute, Ethiopia unsuccessfully argued

that its use of force was intended to regain control over territory which belonged to it, but which

had been under Eritrea’s peaceful administration for years. The dispute involved a settled land

boundary, whereas maritime boundaries have to be agreed upon by States whose potential areas

overlap.60 It is thus rare that a State would incur international responsibility for violating rules

relating to title of maritime territory because there is rarely a clear allocation of such space.61

25. Here, Ulva’s blockade was used only in self defense to resolve the internal problems

created in the disputed Port of Gyst as a result of the strengthening of the Briskan navy in the

region, the importation of arms by Brisk, and increasing hostilities between the two countries

which was provoked by Brisk.62 The U.N. Charter maintains that force is justifiable in a limited

number of instances to “maintain international peace and security,” including taking measures to

engage in self-defense.63 Even if unsanctioned by the Security Council, a use of force to settle a

boundary dispute where the initiator has a reasonable claim and limited aims is one example of

self-defense.64 Therefore, even if the Court determines that Ulva did not have a rightful clam to

the territory, there was at least a legitimate dispute over the territory. The Brisk-Ulva conflict is

thus parallel to the Nigeria case, and the legitimacy of the dispute is enhanced because it is a

maritime dispute. Thus, this court should follow ICJ precedent and U.N. principles and hold that 57 See Milano & Papanicolopulu, supra note 52; Christine Gray, The Eritrea/Ethiopia Claims Commission Oversteps its Boundaries: A Partial Award, 17 EUR. J. INT’L. L. 699, 713 (2006). 58 See Facts and Procedural History ¶ 5 (noting that arms importation by Brisk elevated tensions in the region). 59 Eritrea/Ethiopia, Partial Award, Ius Ad Bellum Ethiopia’s Clams 1–8 at ¶ 10, 2006 I.L.M. 430 (Eritrea/Ethiopia Claims Commission Dec. 19, 2005), available at http://www.pca-cpa.org. 60 See U.N. Convention on the Law of the Sea, Article 87, Dec. 10, 1982, 1833 U.N.T.S. 397. 61 See Milano & Papanicolopulu, supra note 52. 62 Facts and Procedural History ¶ 2. 63 See Feldstein, supra note 50, at 1677. 64 See id.


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an act of aggression was not committed because the territorial integrity of Brisk was not violated.

Even if the port of Gyst belonged to Brisk, Ulva’s claims under the dispute were legitimate, and

therefore its use of the blockade was made in a good faith effort of self-defense.

26. Even if the Court chooses to adjudicate the boundary dispute, rules against Ulva, and

further finds that the dispute was so illegitimate that Ulva’s blockade was an act of aggression in

violation of the U.N. Charter rather than an act of self-defense, not every act of aggression

constitutes a crime of aggression cognizable by this Court. An act must also be a manifest

violation of the U.N. Charter of sufficient character, gravity, and scale in order to constitute the

crime.65 The criteria of “gravity” and “scale” capture the requirement that the crime must be of

“sufficient seriousness,” while the “character requirement” acknowledges that the specific acts of

aggression which fall into a grey area under permitted uses of force should not be included or

charged as a crime of aggression.66

27. Here, the Security Council deliberated over the issue and could not come to the

conclusion that a manifest violation of the U.N. Charter had occurred.67 If the violation truly

were manifest, presumably the Security Council would have reached this conclusion. Moreover,

the character of this act of aggression is not consistent with charging a crime, since Ulva’s

actions were taken in good faith regarding a grey area in the use of force. Moreover, the gravity

and scale of the alleged act of aggression do not capture the requisite seriousness to constitute a

crime. Ulva blockaded only a single port, which caused Brisk to suffer minimal economic harm.

Neither is there any indication that the Ulvan Government intended to cut off all resources to the

State of Brisk or to starve the population; importantly, if there were, John Evans was certainly

not aware of this fact, as will be argued in the sections below. Moreover, only the small

community in the disputed territory of Gyst (which includes 30% Ulvan citizens) claims to have

suffered harm, rather than a large-scale group of exclusively Briskan nationals. Therefore, Ulva’s

actions in the current case, even if they constitute an act of aggression, do not constitute the

crime of aggression that John Evans has been charged with because they were not of sufficient

character, gravity, and scale to constitute a manifest violation of the U.N. Charter.

65 Rome Statute, Article 8bis. 66 Claus Kreß & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. INT’L. CRIM. JUST. 1179, 1193 (2010). 67 Facts and Procedural History ¶ 13; Answers to Questions ¶ 13.


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Personal Jurisdiction

28. Article 25 of the Rome Statute, which sets out the requirements for criminal

responsibility in proceedings by this Court, establishes no grounds of individual criminal

responsibility that apply to Defendant John Evans. Therefore, the court has no personal

jurisdiction to proceed in this case.

29. Article 25(3) sets out four possibilities for criminal responsibility. Under Article 25(3)(a),

a defendant is responsible if he directly commits the crime, whether as an individual, jointly, or

through another person. Here, Evans did not commit the alleged crime himself. Rather, the Ulvan

navy was the actor directly responsible for the blockade that establishes the factual basis for the

charges brought in this case.68

30. Under Article 25(3)(b), a person is also responsible if he “orders, solicits, or induces” the

commission of a crime.” Here, the Ulvan government, led by President Thompson, unilaterally

ordered the blockade without the direct or formal consent of Parliament or the NDP leader,

Evans.69 Although Evans supported the Government’s position in the media, they cannot be

construed as an inducement that caused the blockade because they came only after the

government instituted the blockade.70 Therefore it does not give rise to criminal responsibility.

31. Finally, under Article 25(3)(c & d) a person is responsible if he contributes in any way to

the commission of a crime by a group of persons acting with a common purpose, provided such

contribution is intentional, with the aim of furthering the criminal activity and in the knowledge

of the intention of the group to commit the crime. Here, once again, Evans cannot be held

responsible because he took no affirmative actions related to the blockade and did not consult

with the government prior to its decision to institute the blockade. The only actions he did take,

by supporting the Government in the media, were not intended to further any criminal activity

because the Government maintained that the blockade did not constitute an act of aggression.71

Therefore, Evans did not act with the requisite knowledge that any of his actions were potentially

furthering a criminal activity, and the court cannot establish personal jurisdiction over him.

68 Facts and Procedural History ¶ 6. 69 Id. 70 Id. at ¶ 10. 71 Id. at ¶ 9.


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32. Even if the Court finds that Defendant John Evans contributed to an act of aggression

under Article 25(3) because he did not attempt to alter the Government’s decision, Article

25(3bis) requires more stringently that a person must be in a position to exercise effective control

over the political or military apparatus of a state in order to incur criminal liability for the crime

of aggression. The leadership requirement dates back to Justice Jackson’s opening argument at

the Nuremberg trials and is a fundamental prerequisite to establishing personal jurisdiction in

charging a crime of aggression.72 Moreover, the Special Working Group for the Crime of

Aggression specifically did not recommend less restrictive language such as “shape or influence”

in order to accord with the precedent set at the Nuremberg Military Tribunal requiring the

Prosecution to establish the more restrictive “control or direct” requirement.73 Accordingly, the

Nuremberg Tribunal exonerated a German defendant who “was clearly not one of the inner circle

around Hitler which was most clearly involved with [his] common plan.”74 It also exonerated a

defendant who was a member of the Reichstag from 1941 to 1945 and became Minister for

Armaments, because he did not exercise sufficient control or leadership to accrue criminal

responsibility for the crime of aggression.75

33. In all of the cases under the Nuremberg Tribunal the court strived to draw an essential

distinction between followers and leaders.76 This Court must do the same thing in order to avoid

making it too difficult to draw the line between the guilty and innocent among the Ulvan

Government and the entire mass of the Ulvan people, including the Defendant John Evans. The

Nuremberg Tribunal implied that this line is best drawn at those who are responsible for the

formation and execution of policies, i.e., they exercise sufficient control to be included in the

relevant discussions.77

34. Here, Defendant John Evans was never in a position to exercise effective control over the

blockade in question. The blockade decision was made unilaterally by President Thompson’s

72 Kevin Jon Heller, Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression, 18 EUR. J. INT’L. L. 477, 479 (2007). 73 Id. 74 The United States of America v. Goering, Judgment, 16 (Int’l Military Trib. at Nuremberg Oct. 1, 1946), http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Nazi-opinion-judgment.pdf (hereinafter Nuremberg Judgment). 75 See Heller, supra note 72, at 481. 76 Id. 77 Id.


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Administration and other actors in the Ulvan military.78 Although Evans and his party supported

the decision, they did not vote to uphold the blockade, and they were not included in the

deliberations by the Ulvan government. This is shown by the fact that the minority parties called

for a vote following Article 73 of the Ulvan Constitution because they were excluded from the

discussions and did not believe the blockade was valid under the Ulvan Constitution.79 Although

Evans and his party did not institute such a vote, they reasonably believed that the blockade did

not constitute an act of war that required the approval of Parliament. Moreover, had a vote been

taken, Evans’ fifty-one percent majority in Parliament would not have been able to institute the

blockade even if it had desired to because a two-thirds majority vote is required under the Ulvan

Constitution, further proving that Evans could not have exercised sufficient control.80

35. While it is unclear whether or not Evans could have voted down the authority for the

Government to continue pursuing the blockade, the ultimate authority to effectively exercise

control clearly rested with President Thompson and his Administration in this case. There is thus

no action that John Evans personally could have taken to prevent the blockade, especially

because he was not involved in the discussions within the government to initiate the blockade.

Therefore, Evans was not in a position to exercise effective control over the political and military

apparatus of the state, and he cannot be held criminally responsible for the crime of aggression.

36. Article 32 provides that a mistake of fact shall be a ground for excluding criminal

responsibility if it negates the mental element required by the crime.81 Elements 4 and 6 of the

crime of aggression require that the defendant was aware of the factual circumstances that

establish that the use of armed force was inconsistent with the Charter of the United Nations and

a manifest violation of the Charter.82 The requirement that the use of force constitute a manifest

violation of the Charter was included in order to protect defendants under a mistake of law

defense before the ICC pursuant to a charge of aggression.83

78 Facts and Procedural History ¶ 9. 79 Id. at ¶ 10. 80 Id. at ¶ 4. 81 Rome Statute, Article 32. 82 Rome Statute, Article 8bis. 83 Kreß & von Holtzendorff, supra note 66, at 1200.


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37. Here, if the Court determines that the factual circumstances establish the crime of

aggression, Defendant John Evans was not aware of these factual circumstances and therefore

should be excused from responsibility. Evans believed that the blockade was a decision for the

government to take and that did not require input from or the consent of Parliament.84 He

reasonably believed that this use of force was justified over the territory claimed by Ulva in self-

defense, and if not in self-defense then as an action that falls short of an act of war or aggression.

Therefore, Evans cannot be found criminally responsible because of his mistake of fact.

Violations of John Evans’ Rights

38. As set forth in the sections above, the Court should declare this case inadmissible for lack

of jurisdiction. Nevertheless, even if the Court does not find those arguments compelling, the

Court must still consider “whether there are any circumstances which would warrant setting

aside jurisdiction and releasing the accused.”85 In the present case there are circumstances that

warrant setting aside jurisdiction, because John Evans was abducted and forcefully moved to

Arduum in order to be arrested.86 In addition, there were insufficient grounds for the Court to

issue the arrest warrant, and Evans was not given the right to appeal the decision that was

improperly made by Arduum when he challenged the arrest warrant. Because the initial arrest

and subsequent holding regarding the warrant were unlawful violations of John Evans’ human

rights and procedural rights, all proceedings after that arrest, including his surrender to this

Court, constitute a continued violation of those rights. Therefore, in the interests of justice, the

Court should set aside jurisdiction and release John Evans.

39. Human rights must be respected by the Court pursuant to Article 21(1) of the Rome

Statute. Moreover, both Ulva and Brisk are parties to major human rights treaties, including the

International Covenant on Civil and Political Rights (ICCPR).87 Article 9 of the ICCPR provides

that “everyone has the right to liberty and security of person” and that “no one shall be subject to

84 Facts and Procedural History ¶ 10. 85 The Prosecutor v. Momir Nikolic, , Decision on Interlocutory Appeal Concerning the Legality of Arrest ¶ 19, IT-940-AR73 (June 5, 2003). 86 Facts and Procedural History ¶ 18. 87 Id. at ¶ 1.


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arbitrary arrest or detention.”88 Article 9 further states that “no one shall be deprived of his

liberty except on such grounds and in accordance with such procedure as are established by

law.”89 Furthermore, without the authorization of the Security Council, the consent of the

territorial state, or a situation that qualifies as self-defense, the forceful abduction of an accused

in order to serve an arrest warrant is a violation of international law and the rights of the

accused.90 Under international law, states may exercise police powers within the territory of

another state only with the consent of the host state.91 “The unconsented exercise of such powers

constitutes an infringement of the sovereignty and territorial integrity of the host state in

violation of the U.N. Charter and customary international law.”92 Anyone seized in such a

situation, therefore, is unlawfully seized.

40. While there is some precedent for the principle mala captus bene detentus, which

provides that a person, even though unlawfully seized, may subsequently be detained legally, it

is widely denounced in the international community.93 The Human Rights Committee, which

monitors the implementation of the ICCPR, has ruled on multiple occasions that transborder

abductions violate Article 9 of the Covenant.94 And while luring “may be considered a legitimate

tactic in war crimes cases, forceful apprehension without the permission of the State in whose

territory the arrest takes places (in other words, kidnapping) would not likely pass muster under

international legal norms.”95

41. Moreover, “the underlying logic of the Rome Statute appears to establish a greater sense

of custodial responsibility for the actions taken at its behest, increasing the likelihood that the

ICC will be an institution that ensures that its allies practice the humanitarian laws they seek to

88 International Covenant on Civil and Political Rights art. 9, Dec. 16, 1966, 999 U.N.T.S. 171 (hereinafter “ICCPR”). 89 Id. 90 See Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal, 49 DEPAUL L. REV. 925, 965–968 (2000). 91 Id. at 967. 92 Id. (citing U.N. CHARTER Art. 2(4)). 93 See Radosavljevic, supra note 43, at 281. 94 Scharf, supra note 90, at 969. 95 Christian DeFrancia, Due Process in International Criminal Courts: Why Procedure Matters, 87 VA. L. REV. 1381, 1404 (2001) .


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enforce.”96 Thus, the Article 55 protects the rights of persons during an investigation to be free

from unlawful or arbitrary arrest, as well as not to be subject to “coercion, duress or threat…to

any other form of cruel, inhuman or degrading treatment.97 The Rome Statute also hints at

enforcing a strong relationship between the actions of custodial states and the jurisdiction of the

ICC by granting a right to compensation for any “victim of an unlawful arrest or detention.”98

42. These precedents establish that the Court must dismiss a case where, as here, the

defendant has been abducted in violation of international law, in order to avoid sanctioning

human rights violations. John Evans’ right to liberty was violated when he was forcefully

abducted from Konera, taken into Arduum, and subsequently arrested, all against his will and

without the consent of Ulva, Konera, or the Security Council.99 Therefore, the Court must refuse

to exercise jurisdiction due to the manner in which Evans was brought into its jurisdiction.

43. Article 58 requires the Prosecutor to show reasonable grounds to believe that the person

committed a crime within the jurisdiction of the court before the Court can grant an application

for a warrant. In applying this standard, the Court has looked to the “reasonable suspicion”

standard articulated in Article 51(c) of the European Convention for the Protection of Human

Rights and Fundamental Freedoms.100 In order to meet this standard, the Prosecutor must have

shown “some facts or information which would satisfy an objective observer that the person

concerned.”101

44. Here, John Evans has denied any wrongdoing, and no act of aggression has been

committed. Moreover, the Government, rather than John Evans, is the party responsible for the

blockade that forms the basis of this charge, and there is no evidence to suggest that Evans has

taken any action related to the blockade.102 Therefore, the warrant was improperly issued and

Evans must be released.

96 Id. at 1409. 97 Rome Statute, Article 55. 98 Rome Statute, Article 85. 99 Facts and Procedural History ¶ 19. 100 The Prosecutor v. Jean-Pierre Bemba Gombo, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo ¶ 24, ICC-01/05-01/08 (June 10, 2008). 101 Id. 102 Facts and Procedural History ¶ 6.


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45. The national court in Arduum concluded that, pursuant to Article 59(4), it was not open

to them to hear John Evans’ challenge the warrant’s validity at his surrender hearing. However,

the Court failed to recognize that even though it cannot challenge the warrant’s validity, it must

assure that the defendant has been arrested in accordance with proper process and the person’s

rights have been respected. Therefore Arduum not only violated John Evans’ human rights as

stated, but it also violated his procedural rights because it failed to grant him an appeal to a

higher court,103 as the American Convention on Human Rights specifically provides for.104

46. Here, this Court cannot ignore these violations by the national court of Arduum. The

principle mala captus bene detentus is widely recognized to be inconsistent with human rights,

criminal process rights, and justice.105 Thus, this Court must set aside jurisdiction and release

John Evans in order to respect his human rights and procedural rights.

47. As argued in the Sections above, the defense maintains that John Evans did not have a

position of sufficient control within the Ulvan government to be held responsible for the crime of

aggression. However, should this Court find that Evans’ role as leader of Parliament gave him

sufficient control to establish criminal responsibility, then Evans likely has immunity from

prosecution as a head of state. In that case, his arrest would violate Article 41 of the Vienna

Convention on Diplomatic Relations, which has been accepted has an international customary

rule, that heads of state enjoy immunity while they are still in office and therefore cannot be

arrested by another state for crimes they have allegedly committed.106 The immunity is in effect

while the heads of state exercise their duties, while travelling in order to perform them.107

48. The defense acknowledges that Article 27 allows the Court to issue an arrest warrant for

sitting heads of state.108 However, pursuant to Article 98(1), the Court may not require a State to

103 Id. at ¶ 20. 104 See American Convention on Human Rights, Article 8(2)(h), Nov. 22, 1969, 1144 U.N.T.S. 123 (the right to appeal a judgment to a higher court); ICCPR, supra note 88, at Article 14 (right to a fair hearing); Universal Declaration of Human Rights, Article 8, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) (right to a fair public hearing). 105 See Radosavljevic, supra note 43, at 281. 106 See Vienna Convention on Diplomatic Relations, Article 41, April 18, 1961, 500 U.N.T.S. 95. 107 See Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Advisory Opinion, 2002 I.C.J. 3 (Feb. 14). 108 Rome Statute, Article 27.


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act inconsistently with its obligations under international law with respect to the state or

diplomatic immunity of a person or property of a third state (a non-State party to the ICC).109

49. John Evans was abducted and subsequently arrested while he was visiting Konera, a non-

State party to the ICC.110 Therefore, Konera’s responsibility to respect this immunity, as well as

Arduum’s action of abducting Evans from a state where he likely enjoyed immunity, provide a

further reason why his arrest was an illegal act that violated Evans’ procedural rights. Although

the defense acknowledges that John Evans was visiting Konera for a private meeting with

friends, there is no indication that this meeting did not pertain to his role as head of

Parliament.111 Moreover, the only reason he was taken to Arduum and arrested was because of

the arrest warrant outstanding against him due to his official capacity. Therefore, John Evans

should be released because he enjoys immunity as a head of state, and that right was violated.

Representation of the Alleged Victims

50. Article 68 allows the court to permit the views and concerns of victims, where their

personal interests are affected, provided they participate in a manner which is not prejudicial to

or inconsistent with the rights of the accused and a fair and impartial trial.112 These views must

therefore be presented in accordance with the Rules of Procedure and Evidence.113 Most

importantly, Rule 85 of Procedure and Evidence requires a showing that applicants have suffered

harm as a result of the commission of any crime within the court.114 Moreover, the word “victim”

should be understood in the historical context of international tribunals such as the ICTY, which

in Rule 2 of its Rules of Procedure and Evidence defines the victim as “[a] person against whom

a crime over which the tribunal has jurisdiction has allegedly been committed.”115

51. Therefore, the Defense first maintains that B01 – B20,000 should be denied participatory

rights because no crime is properly before the jurisdiction of the court in the current matter.

However, assuming that the alleged crime of aggression is within the jurisdiction of the Court, 109 Id. at Article 98. 110 Facts and Procedural History ¶ 18. 111 Id. 112 Rome Statute, Article 68. 113 Id. 114 RULES OF PROCEDURE AND EVIDENCE, Rule 85, ICC-ASP/1/3 (2002) (hereinafter “ICC RPE”). 115 RULES OF PROCEDURE AND EVIDENCE, Rule 2, IT/32/Rev. 43 (ICTY 2009) (hereinafter “ICTY RPE”).


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they should still be denied participation rights because they have not suffered any harms that

merit the status of victims. Although harm is not defined in Rule 85, the court has interpreted it

to include physical, mental, emotional or economic loss.116 However, Pursuant to Article 68 (3),

victims’ personal interests cannot be based on “general interests of victims” that are affected by

overall stages of ICC proceedings.117 Instead, the Court has held that this loss must be of a

personal, rather than collective nature.118

52. Although the starvation of a population might be significant enough to qualify as a harm

contemplated under Rule 85, the claims of food deprivation by the victims here appear to be

generalized grievances. These harms also do not merit granting B01-B20.000 victim status

because these applicants were not the specifically targeted victims of the alleged crime.119

Moreover, the victims’ claim of living in fear of an attack by the Ulvan fleet is also a collective

harm that could not have materialized for each of the individual victims in a way that can be

proved before the court.120 Even though this Court recognized the possibility of suffering a

psychological harm, it only recognized that possibility in relation to an actual act done that

directly caused the harm.121 Moreover, if the Court chooses to recognize this kind of harm, it will

lead to a slippery slope that could potentially grant any person claiming to suffer any intangible

harm a right before the court.

53. Only those victims who can show a link between their specific personal interests and the

issues or items of evidence that are the subject of the trial can be granted “participating

status.”122 Participatory rights should only be granted to victims in relation to specific procedural

activities or items of evidence, and in light of the specific personal interests of those requesting

to participate.123

116 The Prosecutor v. Thomas Lubanga Dyilo, Decision on victims’ participation ¶ 92, ICC-01/04-01/06-1119 (Jan. 18, 2008). 117 Id. at ¶ 97–98. 118 Lubanga, Judgment of the appeals of The Prosecutor and The Defense against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008 ¶ 39 (July 11, 2008). 119 Cf. ICTY RPE, supra note 115, Rule 2. 120 Facts and Procedural History ¶ 26. 121 Cf. Lubanga, supra note 116, at ¶ 92. 122 Id. at ¶¶ 2, 95–96, 102–103, and 138. 123 Id. at ¶ 96–104 (confirmed in Lubanga, supra note 118, at ¶ 104).


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54. Here, even assuming applicants B01 – B20,000 demonstrate specific personal interests

and harms in this case, those specific interests would not be affected by the issues and evidence

that are the subject of this trial.124 This trial will focus on whether an act of aggression was

committed, and the defense will show that the blockade occurred in disputed territory and that

John Evans did not exercise control over the naval forces of Ulva that executed this action. The

statements of B01 – B20,000 will be wholly irrelevant on these issues. While it can be argued

that their participation will be relevant to showing that the blockade was a manifest violation of

the U.N. Charter, this evidence can just as easily be presented by defense counsel, and related

only to the gravity of the blockade, not its character and scale. Due to the limited relation to the

proceedings, therefore, the applicants should be denied participatory rights.

55. In the alternative, if the victims are permitted to participate, they should do so only under

a single legal representative. Under Rule 91(2) the Pre-Trial Chamber may establish how victims

will participate in pre-trial proceedings, and the Court requires that the victims be represented by

a legal representative under Rule 90.125 Although 91(3)(a) permits a legal representative to

question a witness, an expert, or the accused, nothing permits a legal representative to introduce

additional evidence at trial. Decisions by this Court have further limited the representative to

making only opening and closing statements at the confirmation hearing, cautioning that legal

representatives “may not enlarge upon the evidence or facts in the case.”126 The trial court in

Lubanga further clarified this ruling, stating that where “the court has ‘requested’ the evidence,”

victims participating in the proceedings “may be permitted to tender and examine evidence if in

the view of the Chamber it will assist it in the determination of truth.”127

56. Here, the Court has not requested any evidence to be presented on behalf of the victims.

As mentioned, the defense maintains that no victim evidence is relevant to the issues at trial.

Moreover, because any evidence that the victims present may be prejudicial, the legal

representative should be limited to making closing and opening arguments if they are allowed to

participate at all.

124 Lubanga, supra note 116, at ¶ 95. 125 Rome Statute, Articles 90–91. 126 Lubanga, Decision on the Schedule and Conduct of the Confirmation Hearing ¶ 4 (Nov. 7, 2006). 127 Lubanga, supra note 116, at ¶ 108.


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57. If the Court assess the personal interests of the victims and decides to grant participatory

rights, it must then examine the manner in which the victims can participate, which must not be

prejudicial or inconsistent with the rights of the accused to a fair and impartial trial.128 There is

no test for balancing the rights of the victims with the rights of the accused, but customary

international law and international criminal tribunals have placed a clear primacy on the rights of

the accused over the rights of victims, and the ICC has enshrined this understanding in Article

68(3).129 Therefore, a mere “risk that the rights of the accused may be violated should be

sufficient to preclude victims’ involvement.”130

58. Here, the Defendant’s rights to a fair and impartial trial will be compromised in three

ways if the victims are granted anything more than a limited scope of participation. First, the

defendant’s right to an expeditious trial may be compromised if the victims are permitted to

present anything more than limited evidence relevant to the gravity of the effects of the blockade.

Second, allowing the victims to participate undermines the presumption of innocence enshrined

in Article 66(2)131 because victim participation gives the impression that the events in question

have already constituted a crime that gave rise to victims. Finally, victim participation forces the

defendant to face more than one accuser, which violates the principal of equality of arms

prohibiting anonymous accusations.132

128 Rome Statute, Article 68; Lubanga, supra note 116, at ¶ 104. 129 See STATUTE OF THE ICTR, Article 19, http://www.un.org/ictr/statute.html; STATUTE OF THE ICTY, Article 20, http://www.icls.de/dokumente/icty_statut.pdf (specifying that “the Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses” (emphasis added)). 130 Salvatore Zappala, The Rights of Victims v. the Rights of the Accused, 8 J. INT’L. CRIM. JUST. 137, 140–146 (2009). 131 Rome Statute, Article 66 (noting that the burden of proof rests on the Prosecution). 132 The Prosecutor v. Germain Katanga, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case ¶ 182–184 (May 13, 2008), http://www.icc-cpi.int/iccdocs/doc/doc486390.pdf.

Documents

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