Team 8

Memorial of the Prosecutor

Pace / ICLN International Criminal Court Moot Court Competition
North American Round
Submitted 5 January 2011

Team 8 / Memorial of the Prosecutor

Original: English

PRE TRIAL CHAMBER 5

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

THE 2009 PACE LAW SCHOOL

INTERNATIONAL
PRE-TRIAL CRIMINAL
CHAMBER I COURT
MOOT COURT COMPETITION
Before:

Judges of the Pace ICC Moot Court Competition

Registrar:

Registrar of the Court

In the case of

Prosecutor
SITUATION IN BRISK
IN THE v.
CASE OF
THE PROSECUTOR
General
Eric
Torzow
v. JOHN
EVANS

MEMORIAL OF THE PROSECUTOR

MEMORIAL SUBMITTED ON BEHALF OF THE

The Office of the Prosecutor
Team 8

VICTIMS

TEAM NO. 10

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Team 8 / Memorial of the Prosecutor

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ......................................................................................................... 3

INDEX OF AUTHORITIES........................................................................................................... 4
STATEMENT OF FACTS ............................................................................................................. 7
ISSUES ......................................................................................................................................... 10
SUMMARY OF ARGUMENTS .................................................................................................. 10
JURISDICTION OF THE COURT .............................................................................................. 11
ARGUMENT ................................................................................................................................ 12
Substantive Jurisdiction ............................................................................................................ 12
Subject Matter Jurisdiction ....................................................................................................... 12
Personal Jurisdiction ................................................................................................................. 17
Legality of Arrest and Detention .............................................................................................. 24
Victims Participation ............................................................................................................... 28

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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

ICRC

International Committee of the Red Cross

ICTR

International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for the

former Yugoslavia

No.

Number

PTC

Pre-Trial Chamber

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 procs-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

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INDEX OF AUTHORITIES

Cases
Dragan Nikolic, Decision on Interlocutory Appeal Concerning Legality of Arrest 2 (June 5,
2003) ......................................................................................................................................... 27
Eri. v. Yemen, Award of the Arbitral Tribunal in the First Stage - Territorial Sovereignty and
Scope of the Dispute, 1996 Perm. Ct. Arb. 104 (3 Oct.), http://www.pcacpa.org/upload/files/EY%20Phase%20I.pdf............................................................................. 13
Lubanga, Decision on the Confirmation of Charges 358360, No. ICC-01/04-01/06-803-tEN
(Jan. 29, 2007)............................................................................................................... 22, 23, 24
Lubanga, Decision on victims' participation 99 (Jan. 18, 2008), http://www.icccpi.int/iccdocs/doc/doc409168.pdf ............................................................................... 29, 30, 31
Lubanga, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the
Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute
of 3 October 2006 4 (Dec. 14, 2006), http://www.icc-cpi.int/iccdocs/doc/doc243774.pdf ... 27
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.),
2001 I.C.J. 40, 97 (Mar. 16)................................................................................................ 12, 13
Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the
Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the
Confirmation Hearing, p. 5 (Sep. 22, 2006), http://icc-cpi.int/iccdocs/doc/doc192992.pdf..... 12
Situation in the Democratic Republic of the Congo, Decision on the Applications for
Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6
82 (Jan. 17, 2006), http://www.icc-cpi.int/iccdocs/doc/doc183441.pdf .......................... 29, 30
Situation in the Democratic Republic of the Congo, Judgment on the Prosecutors Appeal
Against the Decision of Pre-Trial Chamber I Entitled........................................................ 14, 17
The Prosecutor v. Dragan Nikolic, Decision on Interlocutory Appeal Concerning Legality of
Arrest, Case No. IT-94-2-AR73 (June 5, 2003)........................................................................ 25
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, 108-112 (May 13, 2008),
http://www.icc-cpi.int/iccdocs/doc/doc486390.pdf .................................................................. 31
The United States of America v. Goering, Judgment, 16 (Intl Military Trib. at Nuremberg Oct.
1, 1946), http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Nazi-opinion-judgment.pdf . passim
United States v. von Leeb, 11 Trials of War Criminals Before the Nuernberg Military Tribunals
49091 (1950), http://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-XI.pdf 18
Statutes
Rome Statute, art. 15(3) ................................................................................................................ 28
Rome Statute, art. 55(1)(b) ........................................................................................................... 25
Rome Statute, art. 55(1)(d) ........................................................................................................... 25
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Rome Statute, art. 89(1) ................................................................................................................ 25
Rome Statute, art. 12(2) ................................................................................................................ 11
Rome Statute, art. 15bis (4) .......................................................................................................... 12
Rome Statute, art. 15bis (6) .......................................................................................................... 11
Rome Statute, art. 19(3) ................................................................................................................ 28
Rome Statute, art. 27(1) ................................................................................................................ 28
Rome Statute, art. 30(2)(b) ..................................................................................................... 22, 23
Rome Statute, art. 58(1) ................................................................................................................ 25
Rome Statute, art. 59(1)(b) ........................................................................................................... 25
Rome Statute, art. 61(7)(a)............................................................................................................ 12
Rome Statute, art. 68(3) .......................................................................................................... 28, 31
Rome Statute, art. 8bis (1) ............................................................................................................ 13
Rome Statute, art. 8bis (2) ............................................................................................................ 17
Rome Statute, art. 8bis (2)(c) ........................................................................................................ 12
Rome Statute, Preamble ................................................................................................................ 14
Other Authorities
15 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law
10 (1951) ................................................................................................................................... 21
Allied Control Council Law No. 10 2 (Dec. 20, 1945) .............................................................. 21
Anthony Clark Arend, International Law and the Preemptive Use of Military Force, 26:2 WASH.
Q. 89, 90 (2003) ........................................................................................................................ 15
Claus Kre, The Crime of Aggression Before the First Review of the ICC Statute, LEIDEN J. OF
INTL L. 20, 851, 855 (2007) ............................................................................................... 15, 23
Dapo Akande, International Law Immunities and the International Criminal Court, 98 AM. J.
INT'L L. 407, 409 (2004) ..................................................................................................... 27, 28
ICRC, San Remo Manual on International Law Applicable to Armed Conflicts at Sea 103
(June 12, 1994), http://www.icrc.org/eng/resources/documents/misc/57jmsu.htm .................. 16
INFORMAL INTER-SESSIONAL MEETING OF THE SPECIAL WORKING GROUP ON THE CRIME OF
AGGRESSION 13 (July 10, 2009), http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/ICC-ASP-8INF.2-ENG.pdf ......................................................................................................................... 21
INTL LAW COMMN, DRAFT ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY
WRONGFUL ACTS 69 (2001) ................................................................................................ 18, 30
Kevin Jon Heller, Retreat from Nuremberg: The Leadership Requirement in the Crime of
Aggression, 18 EUR. J. INTL. L. 477, 479 (2007) ............................................................... 17, 18
Letter from Daniel Webster to Lord Ashburton, Aug. 6, 1842..................................................... 15

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Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New
Millennium: Lessons from the Yugoslavia Tribunal, 49 DEPAUL L. REV. 925, 970 (19992000)
................................................................................................................................................... 25
Noah Weisbord, Prosecuting Aggression, 49 HARV. INT'L L.J. 161............................................. 14
Scott T. Johnson, Neither Victims nor Executioners: The Dilemma of Victim Participation and
the Defendants Right to a Fair Trial at the International Criminal Court, 16 ILSA J. INT'L &
COMP. L. 489, 495 (2010) ................................................................................................... 31, 32
SPECIAL WORKING GRP. ON THE CRIME OF AGGRESSION, REPORT 25 (Feb. 20, 2009),
http://www.icc-cpi.int/iccdocs/asp_docs/ASP7R2/ICC-ASP-7-SWGCA-2-ENG.pdf ............ 19
SPECIAL WORKING GRP. ON THE CRIME OF AGGRESSION, REPORT 25, http://www.icccpi.int/iccdocs/asp_docs/SWGCA/ICC-ASP-6-20-Add1-AnnexII-ENG.pdf .......................... 14
THE ASSEMBLY OF STATES PARTIES, THE CRIME OF AGGRESSION Annex II, Resolution RC/Res.6
(June 11, 2010), http://icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf ............ 21
WORKING GRP. ON THE CRIME OF AGGRESSION, DISCUSSION PAPER PROPOSED BY THE
COORDINATOR 18 (July 11, 2002), http://daccess-ddsny.un.org/doc/UNDOC/GEN/N02/475/13/PDF/N0247513.pdf............................................... 15
Treaties
Agreement for the Prosecution and Punishment of the Major War Criminals of the European
Axis, and Charter of the International Military Tribunal (Aug. 8, 1945) ........................... 16, 19
International Covenant on Civil and Political Rights art. 9(4), Dec. 16, 1966, 999 U.N.T.S. 171
................................................................................................................................................... 25
International Covenant on Economic, Social, and Cultural Rights art. 11, Dec. 16, 1966, 993
U.N.T.S. 3 ................................................................................................................................. 28
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 ......................... 13
Resolutions
Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec.
10, 1948) ................................................................................................................................... 28

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STATEMENT OF FACTS
1.

Long-time tensions between the neighboring states of Brisk and Ulva, States Parties to

the ICC, the U.N. Charter, and major human rights treaties, have recently escalated.1 From
February 2018 to present, Ulva has blockaded the one major port in Brisk with a fully armed
naval fleet.2 The port is disputed territory between the States, although 70% of the population is
ethnically Briskan.3
2.

A number of events precipitated the blockade.

The growth of Brisks navy and

increasing military activities in the port have troubled the Ulvan government.4 After President
Benny Thompson came into power in Ulva in July 2016, antagonism between the states grew as
a result of arms deliveries to Brisk and the arrest and indictment of the Presidents two sons in
Brisk.5
3.

As a result of these events, Ulva deployed its fleet to blockade the Port of Gyst on 12

February 2018 and has remained in place since.6 A collective decision of the Ulvan Government
instructed the fleet to use all necessary means to prevent every ship from entering or leaving the
port of Gyst.7 The blockade, located near the port and within Brisks territory, has prevented all
maritime ingress or egress in the port, causing substantial suffering throughout Brisk.8 Although
war is said to be imminent, neither country has engaged in other hostile actions.9
4.

The Ulvan government has not issued a declaration of war and claims that the blockade

does not constitute war within the meaning of Article 73 of its Constitution, which requires that a
declaration of war receive two-thirds support from Parliament.10 The opposition parties in the
Ulvan Parliament insisted that a vote was required to deploy the blockade, but the two
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1

Facts and Procedural History 12.

Id. at 6.

Id. at 2.

Id.

Id. at 5.

Facts and Procedural History 67.

Id. at 6.

Id. at 7.

Id. at 8.

10

Id. at 9.

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government parties, the National Democratic Party (NDP) and the Freedom Party (FP) have
supported the Governments position and no vote has taken place.11
5.

John Evans (the Accused) is the leader of the NDP in the parliament of Ulva, which holds

30% of parliamentary seats, while the FP makes up 21%.12 Mr. Evans led the NDP in the 2016
elections, although Mr. Thompson, a close political friend, became the new President.13 Mr.
Evans, though not formally part of the Thompson Government, is said to enjoy substantial
influence over all aspects of Government policy.14
6.

He has publicly supported the blockade while emphasizing that the decision was the

Governments prerogative.15
7.

On 15 May 2018, the ICC Prosecutor notified the U.N. Secretary General of his intent to

proceed with an investigation into the conflict.16 Shortly after, the U.N. Security Council
decided unanimously that the blockade was a breach of and threat to international peace and
security but could not reach agreement on whether the blockade constituted an act of
aggression.17
8.

Over six months later, on 15 January 2019, the Prosecutor applied to the Pre-Trial

Chamber (PTC) for an arrest warrant for John Evans based on the charge that [f]rom 12
February 2018 onwards, John Evans and others committed the crime of aggression (Article 8bis
and Article 25(3)(a) of the Rome Statute.).18 As supporting evidence, the Prosecutor stated that
Evans, as the parliamentary leader of the NDP in a democratic state, was in effective control
over Government decisions and failed to take the necessary and reasonable steps to alter
Government decision-making.19

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
11

Facts and Procedural History 9.

12

Id.

13

Id. at 3.

14

Id. at 4.

15

Id. at 10.

16

Facts and Procedural History 11.

17

Id. at 1213.

18

Id. at 13-14.

19

Id. at 15.

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9.

The PTC issued the arrest warrant on February 15 2019 with a request that Ulva comply

with the warrant and that other states parties cooperate within their authority.20 The PTC ruled
that, based on the evidence, jurisdiction is appropriate, the case is admissible, the evidence is
sufficient, and the arrest and surrender are justified.21 President Thompson responded that Evans
enjoyed immunity from arrest as a Member of Parliament.22
10.

In February 2019, Mr. Evans visited Konera (not a State Party to the ICC) for

recreation.23 With friends, he visited a casino that straddled the border of Konera and Arduum,
which is a State Party to the ICC.24 Gambling is illegal in Konera, so all gambling facilities are
on Arduum territory.25 Evans remained on the Konera side of the casino while his friends
gambled on the Arduum side.26 Private security staff approached Evans and requested that he
accompany them for a security check.27 He initially complied, but upon discovering that they
were entering the gambling area where the security desk was located, he refused to go further,
but the security officers brought him by force to the desk.28 An identity check revealed the
outstanding arrest warrant, and security notified the police, who took Mr. Evans into custody in
Arduum on 28 February 2019.29
11.

At a surrender hearing in Arduum on 1 March 2009, Evans contested the legality of the

arrest, but the Arduum authorities claimed to be bound by the ICC arrest warrant, which they
lacked the authority to challenge.30 Mr. Evans was surrendered to the ICC on 5 March 2019.31

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
20

Id. at 16.

21

Facts and Procedural History 16.

22

Id. at 17.

23

Id. at 18.

24

Id.

25

Id. at 19.

26

Facts and Procedural History 19.

27

Id.

28

Id.

29

Id.

30

Id. at 20.

31

Facts and Procedural History 21.

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12.

During preliminary hearings, the Prosecutor argued that the ICC has jurisdiction and that

the arrest and detainment of the Accused was legal, but its unlawfulness would not affect the
ICCs jurisdiction.32 The defense contests these points.33
13.

A few weeks before the confirmation hearing on 17 May 2019, 20,000 Brisk nationals,

represented by one counsel, requested recognition as victims and participation in the

proceedings.34 Most are inhabitants of Gyst, and but all claim they have been deprived of food
and other important resources as a result of the blockade and have lived in constant fear of attack
by the fleet.35 PTC 6 granted temporary status as victims B01 B20.000 with participatory
rights at the confirmation, including the right to make submissions on all agenda items for the
first day of the hearing.36
ISSUES
14.

This memorial addresses the following issues: 1) the jurisdiction of the court respecting

the proposed charges; 2) the legality of the arrest and detention of the accused; and 3) the
participatory rights of victims B01-B20000 in the proceedings against the Accused.
SUMMARY OF ARGUMENTS
15.

The Court should confirm the proposed charges because the Court has jurisdiction over

the crime and the Accused, the arrest of the Accused did not violate his rights, and if it did
violate his rights, the Court should retain jurisdiction.

Moreover, the Court should grant

applicants B0120.000 participatory rights as victims in the proceedings against the Accused but
not allow the victims to submit evidence unless requested to do so.
16.

The Court has subject matter jurisdiction because there is a reasonable basis for believing

that the Ulvan blockade is an act of aggression that manifestly violates the Charter of the United
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
32

Id. at 23.

33

Id. at 24.

34

Id. at 25.

35

Id.

36

Facts and Procedural History 26.

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Nations. The blockade probably occurred on Brisk territory, and it does not qualify as an
exception to the U.N. Charters prohibition against the use of force.
17.

The Court has personal jurisdiction over the Accused because he was probably in a

position to effectively exercise control over or direct Ulvas policies. He wielded substantial
power as a close ally of the President and the leader of the NDP, and his support of the blockade
provides substantial grounds for believing that he is within the scope of liability under Article
25(3) and Article 8bis (1).
18.

The arrest and detention of the Accused were legal. He was not abducted to Arduum, and

no evidence that the Arduum authorities violated his rights. Even if his rights were violated, the
violations were not so substantial as to justify a stay of proceedings.
19.

The applicants B0120,000 should be granted limited participatory rights, because they

suffered substantial harm linked to the alleged crime, and limited participation would not violate
the rights of the Accused.
JURISDICTION OF THE COURT
20.

This case satisfies the procedural requirements for the exercise of jurisdiction over

alleged crimes of aggression. The subject matter and personal jurisdiction issues addressed by
the preamble and Article 8 bis will be addressed below.
21.

Temporal jurisdiction is established when the crime of aggression occurs after the entry

into force of the Statute pursuant to Article 11 and over one year after ratification of the
amendments on the crime of aggression pursuant to Article 15bis (2) and Article 121(5). Here,
all temporal requirements are satisfied.
22.

As a jurisdictional precondition, the crime must have occurred on the territory of a State

Party or have been committed by a national of a State Party.37 Here, both preconditions are met
(the territorial dispute is immaterial here, since both States are parties to the Statute.)
23.

Proceedings were properly initiated by the Prosecutor proprio motu pursuant to Articles

13 and 15 bis. After finding a reasonable basis for an investigation, the The Prosecutor properly
notified the U.N. Secretary-General of the situation.38 Where, as here, the Security Council has
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
37

Rome Statute, art. 12(2).

38

Rome Statute, art. 15bis (6).

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not reached a determination regarding the alleged act of aggression within six months of the
notification to the U.N. Secretary-General, the Prosecutor may proceed with investigation with
authorization from the PTC.39 Here, these conditions have been met, and the Security Council
has not barred investigation pursuant to Article 16 of the Statute.
ARGUMENT
Substantive Jurisdiction
24.

A primary purpose of the confirmation hearing is to determine if evidence provides

substantial grounds for believing that the Accused has committed a crime within the jurisdiction
of the Court.40 Here, there are substantial grounds for believing that 1) the naval blockade
constitutes an act of aggression that manifestly violates the U.N. Charter and 2) the Accused was
in a position to effectively control or direct government policy and played a role in the blockade
giving rise to criminal liability.
Subject Matter Jurisdiction
25.

Evidence provides substantial grounds for believing that the blockade of the Port of Gyst

is an act of aggression that manifestly violates the U.N. Charter. Even without a declaration of
war, the blockade of the ports or coasts of a State by the armed forces of another State is an act
of aggression.41 If Ulva has a legal territorial claim to the port, then the blockade would not fall
within the scope of Article 8bis (2)(c).42 However, there are substantial grounds for believing
that the port is in the territory of Brisk for the purposes of Article 8bis (2)(c).
26.

Maritime rights derive from territorial rights over adjacent land.43 Moreover, where two

countries share adjacent coastline, neither may extend its maritime territory beyond a line
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
39

Rome Statute, art. 15bis (4).

40

Rome Statute, art. 61(7)(a); see, e.g., Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision
on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing,
p. 5 (Sep. 22, 2006), http://icc-cpi.int/iccdocs/doc/doc192992.pdf (hereinafter Decision on Victim Participation at
Confirmation Hearing).
41

Rome Statute, art. 8bis (2)(c).

42

See supra note 3 and accompanying text.

43

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), 2001 I.C.J. 40, 97
(Mar. 16).

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equidistant from the countries established borders.44 Rights to territory may evolve over time
through occupation and increase of state control.45 When a State has physically occupied
territory with the intent to claim it, the occupation may ripen into legitimate title under the
doctrine of effective occupation.46
27.

Here, although the evidence does not establish the basis for Ulvas claim and does not

give any insight into historic title, Brisk appears to have territorial rights to the land around the
port through effective occupation, if not historic title. Thus, Ulvas blockade probably satisfies
Article 8bis (2)(c).
28.

To give rise to criminal liability, the blockade must by its character, gravity, and scale,

[constitute] a manifest violation of the Charter of the United Nations.47 Interpretation of the
manifest threshold clause is a matter of first impression.48
29.

The threshold clause of Article 8bis (1) lends itself to three reasonable interpretations: 1)

the threshold clause builds upon the other gravity thresholds in the Statute and thus requires a
higher level of gravity than the other crimes in Article 5; 2) the clause is an application of the
other thresholds in the context of the crime of aggression; or 3) the manifest threshold does not
relate to the gravity of the crime.

The Prosecution urges the Court to adopt the third

interpretation. Specifically, the Prosecution argues that the manifest threshold clause creates a
certainty threshold rather than a gravity threshold of the kind contained elsewhere in the Statute.
30.

Article 8bis (2) states that an act of aggression means the use of armed force by a State

against the sovereignty, territorial integrity or political independence of another State, or in any
other manner inconsistent with the Charter of the United Nations.49 If any use of armed force
against another state that is inconsistent with the Charter is an act of aggression (indicated by
any other manner), then the manifest violation threshold requires something beyond mere
inconsistency with the Charter to constitute a crime of aggression.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
44

Id.

45

See Eri. v. Yemen, Award of the Arbitral Tribunal in the First Stage - Territorial Sovereignty and Scope of the
Dispute, 1996 Perm. Ct. Arb. 104 (3 Oct.), http://www.pca-cpa.org/upload/files/EY%20Phase%20I.pdf.
46

Id.

47

Rome Statute, art. 8bis (1).

48

Facts and Procedural History p. 1.

49

Rome Statute, art. 8bis (1) (emphasis added).

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31.

The use of force against another state is inconsistent with Article 2(4) of the U.N. Charter

unless either: the use of force is authorized by the Security Council pursuant to Article 42 of the
Charter, or it qualifies as self-defense pursuant to Article 51 of the Charter. The ordinary
meaning of the word manifest indicates that Article 8bis (1) requires only that the
inconsistency with the charter is readily perceivable and certain. If the act of aggression clearly
does not fit within either of the exceptions set out in Article 42 and Article 51 of the Charter,
then Article 8bis (1) is satisfied. Thus, the Court should read the threshold clause as a certainty
threshold rather than a gravity threshold.
32.

This reading is further supported by the presence of gravity thresholds in the Rome

Statutes Preamble, and Articles 1, 5, and 17, which limit the jurisdiction of the Court to the
most serious crimes of concern to the international community as a whole.50 Since these
thresholds already filter out cases of insufficient gravity, the manifest threshold clause probably
serves a different purpose.
33.

The certainty threshold also aligns with the object and purpose of Article 8bis and the

intent of the Special Working Group on the Crime of Aggression (SWG). An object of the
Statutes inclusion of the crime of aggression is to deter leaders in a position to direct or control
policy-making from engaging the machinery of the state in acts of aggression.51

An

interpretation of the threshold clause that gives this court jurisdiction over only a subset of the
most serious crimes would only encourage leaders to remain in the grey zone rather than
refrain from aggression entirely. An important objective of the Statute is to avoid ambiguous
grey areas and comply with the principle of legality in order to guide the Prosecutor and provide
predictability to potential perpetrators.52

A certainty requirement interpretation of the

threshold clause complies with this objective.

34.

This position is further supported by the drafting history of Article 8bis (1).53 The SWG

debated between two qualifiers: manifest and flagrant.54 The choice of manifest is telling.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
50

Rome Statute, Preamble; see also SPECIAL WORKING GRP. ON THE CRIME OF AGGRESSION, REPORT 25,
http://www.icc-cpi.int/iccdocs/asp_docs/SWGCA/ICC-ASP-6-20-Add1-AnnexII-ENG.pdf.
51

See Situation in the Democratic Republic of the Congo, Judgment on the Prosecutors Appeal Against the
Decision of Pre-Trial Chamber I Entitled Decision on the Prosecutors Application for Warrants of Arrest, Article
5 74, Case No. ICC-01/04 (July 13, 2006).
52

See Noah Weisbord, Prosecuting Aggression, 49 HARV. INT'L L.J. 161, 192 n. 125.

53

See Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, art. 32(a).

54

WORKING GRP. ON THE CRIME OF AGGRESSION, DISCUSSION PAPER PROPOSED BY THE COORDINATOR 18 (July

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The words share similar means of noticeable or evident, but flagrant also implies a further
qualification on the basis of intensity in addition to certainty of the violation.
35.

Moreover, an objective of the amendments on the crime of aggression was to fully

embrace the precedent of the Nuremberg Military Tribunal (NMT),55 which characterized the
crime of aggression as the supreme international crime.56 Thus, the SWG probably did not
intend to create a gravity threshold, given both the thresholds already present in the statute and
the Nuremberg characterization of the crime as the most serious by definition. Rather, they
probably wanted to provide a standard to help the Court focus its energies only on those cases
where the violation of the Charter was substantially clear.
36.

In this case, the naval blockade of Gyst satisfies the manifest threshold clause. The

Security Council did not authorize Ulvas use of force against Brisk, and Ulva did not act in selfdefense. Any attempt by the defence to characterize the blockade as an act of aggression ought
to be rejected.
37.

Preemptive self-defense is generally held to be permissible under international law, but

the standard is extremely restrictive.57 A preemptive act of self-defense is permissible only when
the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and
no moment of deliberation.58 The preemptive action must also be proportionate to the threat.59
The use of force by Ulva does not meet these criteria in character, gravity, or scale.
38.

A naval blockade of a commercial port is not typical of an act of preemptive self-defense,

since it is not designed to prevent or repel an imminent attack. Even if this blockade was
defensive in nature, it violates international humanitarian law by not allowing in foodstuffs and
other necessities in accordance with law of armed conflicts at sea, and thus it cannot be

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
11, 2002), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N02/475/13/PDF/N0247513.pdf.
55

Claus Kre, The Crime of Aggression Before the First Review of the ICC Statute, LEIDEN J. OF INTL L. 20, 851,
855 (2007).
56

The United States of America v. Goering, Judgment, 16 (Intl Military Trib. at Nuremberg Oct. 1, 1946),
http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Nazi-opinion-judgment.pdf (hereinafter Nuremberg Judgment).
The tribunal referred to crimes against peace, which have the same substantive meaning as crimes of aggression.
57

Anthony Clark Arend, International Law and the Preemptive Use of Military Force, 26:2 WASH. Q. 89, 90 (2003).

58

Letter from Daniel Webster to Lord Ashburton, Aug. 6, 1842 (quoted in Arend, supra note 57, at 91).

59

Arend, supra note 57, at 91.

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considered proportional to the threat.60
39.

Here, the build-up of the Briskan navy does not constitute a threat so imminent that only

preemptive force can prevent an attack. Indeed, there is no evidence that Brisk even intended to
use the navy to attack Ulva, and even if that intent was clearly present, the threat would still not
meet the imminence requirement.
40.

The blockade has caused widespread harm to the civilian population of Brisk and has

lasted far longer than any defensive action would require in order to neutralize an imminent
threat. It is manifestly clear that preemptive self-defense cannot be justified in this instance
under the U.N. Charter, given the lack of an imminent threat from Brisk. The timing of the
blockade seems to indicate that the Presidents tensions due to the indictment of President
Thompsons sons and the arms imports into Brisk provoked the blockade more than a legitimate
exercise of self-defense. In total, the character, gravity, and scale of the blockade manifestly
violated the U.N. Charter.
41.

If the Court adopts the more restrictive interpretation of the manifest threshold clause that

would treat the clause as a heightened gravity requirement, there still remain substantial grounds
for believing the blockade is a manifest violation of the U.N. Charter. A gravity threshold that
raises the bar above the most serious crime threshold should consider the Nuremberg view that
an act of aggression is the supreme international crime.

Thus, any threshold above the

preambular threshold of the most serious crimes should be very marginal.

42.

The Ulvan blockade probably meets the threshold. The blockade has directly injured tens

of thousands of Briskan civilians and destabilized the region by crippling Brisks economy and
pushing the two states toward full war. Although no blood has been shed, it is clear from the
inclusion of blockades in Article 8bis (2)(c) that bloodshed is not necessary to meet the manifest
threshold clause. Given Brisks limited access to coastline, a total blockade of the one major
port in the State is particularly grave. Thus, by its character, gravity, and scale, the blockade
goes well above the gravity thresholds in the Statute and thus gives substantial grounds for
believing that it would satisfy the manifest threshold clause.
43.

In conclusion, the Court has several interpretive tracks available with regard to the

threshold clause of Article 8bis (1). The Prosecution encourages the Court to adopt the more
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
60

ICRC, San Remo Manual on International Law Applicable to Armed Conflicts at Sea 103 (June 12, 1994),
http://www.icrc.org/eng/resources/documents/misc/57jmsu.htm.

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natural interpretation of the word manifest as a requirement that the violation of the Charter be
particularly clear and free from doubt. A more restrictive interpretation may view the clause as a
heightened gravity threshold above the baseline gravity thresholds elsewhere in the Statute.
Under either interpretation, however, the evidence provides substantial grounds for believing that
the Ulvan blockade constitutes a crime of aggression.
Personal Jurisdiction
44.

The Accused is subject to this Courts jurisdiction if the PTC finds substantial grounds

for believing that the Accused was in a position effectively to exercise control over or to direct
the political or military action of Ulva, and that he planned, prepared, initiated, or executed an
act of aggression.61 The evidence here is sufficient to satisfy this standard of proof.
45.

A potential perpetrator does not have to hold a formal position in the relevant branch of

the government or military to satisfy the control or direct leadership requirement. The use of
the word effectively in Article 8bis (1) indicates that the power and influence of the Accused is
more significant than his office. Excluding perpetrators because they do not hold a top position
in government or military could severely hamper the preventive, or deterrent, role of the Court
which is a cornerstone of the creation of the International Criminal Court, by announcing that
any perpetrations other than those at the very top are automatically excluded from the exercise of
the jurisdiction of the Court.62
46.

According to the SWG, the leadership standard derives from the mid-century

jurisprudence of the International Military Tribunal (IMT), the NMT, and the International
Military Tribunal for the Far East (IMTFE).63

The Charter of the NMT defined the crime of

aggression as the planning, preparation, initiation or waging of a war of aggression similar

language to that found in Article 8bis (1).64
47.

IMT precedent stated that [i]t is not a persons rank or status, but his power to shape or

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
61

Rome Statute, art. 8bis (2).

62

See Judgment, supra note 51, at 74,.

63

Kevin Jon Heller, Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression, 18 EUR. J.
INTL. L. 477, 479 (2007).
64

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of
the International Military Tribunal (Aug. 8, 1945), Section I, art. 6(a), http://www.icrc.org/ihl.nsf/FULL/350
(hereinafter Nuremberg Charter).

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influence the policy of his State, which is the relevant issue for determining his criminality under
the charge of crimes against peace.65 The tribunal also indicated that power sufficient to hinder
or prevent a commission of a crime of aggression could give rise to criminal liability.66 The
shape or influence language appears to cast a wider net than the more conservative control or
direct language of Article 8bis (1).
48.

The International Law Commissions (ILC) commentary on the words control and

direct in the context of State responsibility for wrongdoings would restrict the scope of liability
more than the approach taking by the case law of the military tribunals. The ILC stated that the
term controls refers to cases of domination over the commission of wrongful conduct and not
simply the exercise of oversight, still less mere influence or concern. Similarly, the word
directs does not encompass mere incitement or suggestion but rather connotes actual direction
of an operative kind.67
49.

The ILC commentary and the IMT precedent provide different scopes of criminal

liability. The Prosecution urges the Court to adopt an interpretation more in line with the legal
precedents established by the military tribunals, that, according to the SWG, codified customary
international law and provided substantial guidance to the SWG in its formulation of the crime.68
50.

The ILC interpretation of control and direct does not properly reflect the intent of the

drafters or the object and purpose of the Statute. First, the ILC commentary was dealing with
state responsibility rather than individual criminal responsibility. Considerations regarding state
responsibility necessarily differ from individual criminal responsibility, which involves a
complex array of individual human agency within the state with highly fragmented levels of
involvement and responsibility.
51.

The more restrictive interpretation of control or direct may overly restrict the scope of

liability to only the very senior officials in the government or military. In a democratic state, an
act of aggression involves multiple branches of government and departments within those
branches. Adoption of the ILC standard would conflict with the SWGs intent to cast a net
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
65

United States v. von Leeb, 11 Trials of War Criminals Before the Nuernberg Military Tribunals 49091 (1950),
http://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-XI.pdf; see also Heller, supra note 63, at 484.
66

Von Leeb, supra note 65, at 49091.

67

INTL LAW COMMN, DRAFT ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS
69 (2001).
68

Heller, supra note 63, at 488 (2007).

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sufficiently wide enough to include actors such as industrialists in the scope of criminal liability,
and it would conflict with the ICC jurisprudential interest in holding more than just the most
senior officials responsible for crimes involving collective actions.69
52.

If the Court adopts a middle ground standard between the looser shape or influence

standard of the military tribunals and the ILCs narrow interpretation of the control or direct
language, then the evidence presents substantial grounds for believing that the Accused will fit
within the scope of criminal liability.
53.

This position of the Accused arguably shares some key similarities to the position of

Rudolf Hess, who was convicted of the crime against peace by the International Military
Tribunal following World War II.70 Hess served as deputy to Hitler and head of the Nazi Party
with authority to handle all Party matters.71 He signed numerous laws and decrees related to
Germanys aggressive activities, and he was Hitlers closest personal confidante.72

The

tribunal found that by virtue of his position and his actions in relation to German aggression,
Hess was guilty of the crime against peace (crime of aggression).73
54.

In this case, the position of the Accused is similar. The Accused is the political leader of

the party that won the 2016 elections in Ulva that brought President Thompson into power.74 If
Ulva has a proportional voting system where parties rather than candidates receive votes, which
appears to be the case from the record, then the parties generally are then responsible for
selecting the candidate who fills the seat of power. This is often the party leader, so there are
reasonable grounds to believe that the Accused was instrumental in placing President Thompson
in power.75 The record also states that they are close political friends.76 Thus, there are
substantial grounds for believing that the Accused probably has substantial control over the
executives policy decisions on an informal level, and his relationship with President Thompson
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
69

SPECIAL WORKING GRP. ON THE CRIME OF AGGRESSION, REPORT 25 (Feb. 20, 2009), http://www.icccpi.int/iccdocs/asp_docs/ASP7R2/ICC-ASP-7-SWGCA-2-ENG.pdf.
70

Nuremberg Judgment, supra note 56, at 11113.

71

Id. at 111.

72

Id.

73

Id. at 113.

74

Facts and Procedural History 3.

75

Id.

76

Id.

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is arguably similar to Hesss relationship with Hitler.77 From the evidence, it appears that
influence of the Accused extends to all aspects of policy-making, and thus he probably had
influence over foreign policy decisions.78
55.

Secondly, the Accused has substantial political power as the head of the larger of the two

government parties in parliament, as did Rudolf Hess as a top leader in the Nazi Party. Article
73 of the Ulvan Constitution indicates that the Ulvan Parliament has at least some war-making
powers.

The parties that form the majority in Parliament clearly supported President

Thompsons approach to the blockade and its legal justification, and the Accused probably had
the power and control to garner that support.
56.

Arguably, the Accused may even have more power than Rudolf Hess, given that the

German government beneath Hitler was dictatorial, and Ulva, as a democratic state, probably
places more political power in its parliamentary leaders than in a dictatorial state.79
57.

Thus, between his formal office and his informal influence over executive policy

decisions, there are substantial grounds to believe that the Accused was in a position effectively
exercise control over or to direct the political or military action.
58.

The Accused also satisfies the second element of the Article 8bis (1) definition, which

requires that the Accused planned, prepared, initiated or executed an act of aggression. The
evidence submitted by the Prosecutor to the PTC stated that John Evans committed the crime of
aggression by failing to take the necessary and reasonable steps to alter Government decisionmaking.
59.

The primary precedent for the conduct language of Article 8bis (1) comes from the

military tribunals in the aftermath of World War II. The Nuremberg IMT Statute defined crimes
against peace as planning, preparation, initiation or waging of a war of aggression or
participation in a common plan or conspiracy for the accomplishment of [a war of
aggression].80 Similar language is incorporated into the Rome Statute in Articles 8bis (1) and
25(3).
60.

The document that codified the IMTs approach to crimes against peace states that a

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
77

Id.

78

Id. at 4.

79

See Nuremberg Judgment, supra note 56, at 5556 (discussing the law as to common plan or conspiracy).

80

Nuremberg Charter, supra note 64, art. 6(a).

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defendant would be guilty of a crime of aggression if the defendant ordered or aided in its
commission, or took a consenting part in the crimes commission, or was connected with plans to
commit the crime and held high political office.81
61.

It appears that the SWG did intend to include acts of omission as grounds for criminal

liability. This is indicated by its decision not to include actively in front of the conduct verbs in
order to leave open possible criminal liability for omissions of those in leadership positions.82
62.

In the Hess case, Hess supported preparations for war, and he voiced his support and

defended the governments aggressive actions in numerous public addresses.83 As previously

mentioned, he also signed laws and decrees related to German aggression as a leader in the Nazi
Party.84
63.

Here, the conduct of the Accused is substantially similar. He has supported the blockade

in public addresses, and he probably played a role in the collective decision of the Government
regarding the blockade.85 Since he is the leader of the NDP and close to the President, he
probably participated in the NDPs support of the Governments position on the legality of the
blockade under Article 73 of the Constitution of Ulva.86 The actions of the Accused are similar
to Hesss public support and the legal actions he took to support German aggression. Moreover,
failure to take reasonable and necessary steps to prevent the aggression is within the scope of
liability based on the intent of the SWG and the IMT precedent. Thus, there are substantial
grounds for believing that the Accused acted in a manner sufficient to subject him to criminal
liability.
64.

To commit a crime of aggression, the defendant must have been aware of the factual

circumstances that established an act of aggression that manifestly violates the U.N. Charter.87
Article 30 of the Statute also requires intent and knowledge unless otherwise provided. In
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
81

Allied Control Council Law No. 10 2 (Dec. 20, 1945), in 15 Trials of War Criminals Before the Nuernberg
Military Tribunals Under Control Council Law 10 (1951).
82

INFORMAL INTER-SESSIONAL MEETING OF THE SPECIAL WORKING GROUP ON THE CRIME OF AGGRESSION 13
(July 10, 2009), http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/ICC-ASP-8-INF.2-ENG.pdf.
83

Nuremberg Judgment, supra note 56, at 11112.

84

Id.

85

Facts and Procedural History 6.

86

Id. at 9.

87

THE ASSEMBLY OF STATES PARTIES, THE CRIME OF AGGRESSION Annex II, Resolution RC/Res.6 (June 11, 2010),
http://icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf.

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regards to consequences, Article 30 states that a person may be considered to intend a
consequence if he is aware that it will occur in the ordinary course of events.88
65.

Since the elements of the crime of aggression contain an awareness requirement, this may

trigger the unless otherwise provided language of Article 30, thus making Article 30 no longer
applicable. However, the PTC in the Lubanga confirmation hearing held that a requirement that
the accused be aware of the factual circumstances that established the existence of an armed
conflict did not replace an analysis under Article 30.89 Since the elements of the crime of
aggression use very similar language, Article 30 probably applies here. Even if Article 30 does
apply, there are substantial grounds for believing that the Accused meets the mens rea standard.
66.

The Court in Lubanga noted that the awareness of factual circumstances element does

not require that the accused come to a legal conclusion that there was in fact an armed conflict.
Thus, a defendant only needs to know the factual circumstances that established the existence of
a criminal act of aggression and not come to a legal determination that the act of aggression
manifestly violated the U.N. Charter.
67.

The Court in Lubanga stated that intent to bring about a consequence is sufficiently

established when the suspect is aware of a substantial likelihood that the objective elements of
the crime will come about from the suspects acts or omissions, and the suspect still decides to
move forward with the acts or omissions.90
68.

The Accused probably meets the awareness standard.91 Even though the Accused may

have a belief that the blockade occurred on Ulvan territory and thus would not constitute an act
of aggression, his high political office gives good reason to believe that he would be aware of the
strength of Ulvas legal claim to the port vis a vis Brisks claim. Moreover, he probably had an
awareness, as a parliamentary leader, of the instructions given to the naval fleet by the
government collectively, which constituted a violation of the law of armed conflict at sea and
manifestly violated the Charter.92 Thus, he was probably aware of the factual circumstances that
would establish a criminal act of aggression.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
88

Rome Statute, art. 30(2)(b).

89

Lubanga, Decision on the Confirmation of Charges 358360, No. ICC-01/04-01/06-803-tEN (Jan. 29, 2007)
(hereinafter Lubanga, Decision on the Confirmation of Charges).
90

Id. at 353.

91

Facts and Procedural History 6.

92

See supra note 64 and accompanying text.

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69.

The Accused also was probably aware that the objective elements of the crime would

occur in the ordinary course of events and intended to bring about the consequence.93 It was
substantially likely that this blockade would occur in the ordinary course of events unless the
Accused took steps to avert it. As a close friend of the President, the Accused was probably
aware of the course that the President intended to pursue with regard to the blockade, and he
probably knew that he could take reasonable efforts to prevent the act from occurring, both
through legal powers granted to parliament in Article 73 and personal influence as leader of the
Presidents party and his alleged influence over all aspects of Government policy.94
70.

The Prosecution has proposed that the Accused should be charged with criminal liability

in accordance with Article 25(3)(a), which states that a person is criminally liable if he commits
such a crime, whether as an individual, jointly with another or through another person, regardless
of whether that other person is criminally responsible. There are substantial grounds to believe
that the Accused meets this standard.
71.

The PTC has adopted a control over the crime rule for determining co-perpetrators

under Article 25(3)(a).95

Under this rule, one of three scenarios suffice to satisfy Article

25(3)(a): 1) the accused physically carried out objective elements of the crime, 2) the accused
had control over the will of those who carried out the objective elements of the crime, or 3) the
accused had responsibilities that were essential in the commission of the crime.96
72.

The three track rule currently used does not fit well with this crime, and the Prosecution

encourages adoption of the common purpose doctrine for crimes of aggression. Under the first
track of the current rule, physically carrying out objective elements of the crime establishes
liability. The use of the word physical seems to imply than more than mere planning or
preparation msut be done to incur liability under this track, which would conflict with the
conduct in Article 8bis (1) that gives rise to liability, such as planning or preparation. Moreover,
because the crime of aggression is an absolute leadership crime focusing on the policy-making
level, few of those who are the intended targets of Article 8bis would fall under this track. 97 The
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
93

Rome Statute, art. 30(2)(b).

94

Facts and Procedural History 3, 4, & 9.

95

Lubanga, Decision on the Confirmation of Charges, 338.

96

Id. at 332.

97

Kre, supra note 55, at 856.

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second track, control over the will of those who carry out elements of the crime, is redundant,
since a control over element is already in Article 8bis (1), and that element is also inserted into
Article 25(3). Thus, the level of control held by the accused should have already been
determined before reaching an analysis under Article 25(3)(a). The third track, the essential
tasks test, would inappropriately restrict the scope of liability to only the most senior leaders,
since an act of aggression involves highly fragmented responsibilities in the stages of planning,
preparation, and execution.
73.

The Prosecution encourages the Court to adopt the ICTYs common purpose doctrine in

crime of aggression cases. Under this test, only those who make their contribution with the
shared intent to commit the offence can be considered principals to the crime, regardless of the
level of their contribution to its commission.98 This test would properly include all those who
participate in the planning, preparation, initiation, and execution of an act of aggression with the
necessary intent. Since the control over requirement is inserted into Article 25(3), the scope of
liability will be properly limited to leadership.
74.

Under the common purpose test, there are substantial grounds to believe that the Accused

fits the mode of liability in Article 25(3)(a). His formal and informal powers, his support of
Government actions, and his failure to take reasonable steps to prevent the blockade lead to a
reasonable inference that the Accused had the shared intent with others to commit the offence.
The Prosecution notes that the Accused would also meet the three track test used in Lubanga,
because a person who probably meets the control or direct test in Article 8bis (1), as discussed
above, would also probably satisfy the control over track.
Legality of Arrest and Detention
75.

The arrest and detention of the Accused were not unlawful. However, even if the

Arduum authorities violated the rights of the Accused in his arrest and detention prior to
surrender to this Court, the rights violations should not prevent the Court from exercising
jurisdiction over the Accused.
76.

The PTC has the authority to issue arrest warrants if there are reasonable grounds to

believe that the crime is within the Courts jurisdiction and the arrest appears necessary to ensure
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
98

Lubanga, Decision on the Confirmation of Charges, 329.

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appearance at trial, prevent obstruction of the investigation, or prevent further criminal activity.99
The PTC also has the authority to request the cooperation of States Parties in carrying out the
arrest warrant.100
77.

In this case, the PTC followed all procedural rules in the issuance of the arrest warrant.

The arrest was probably necessary to ensure the appearance of the Accused. Moreover, there
wer reasonable grounds to believe that the crime was within the jurisdiction of the Court, as
discussed above.
78.

Article 55(1) of the Statute prohibits any form of coercion,101 and safeguards the

accused from arbitrary arrest and detention or deprivation of his liberty except on such grounds
and in accordance with such procedures as are established in this Statute.102
79.

Abduction from one State to another is an unlawful means of executing an arrest warrant

that may violate the human rights of the accused.103 However, there are legal means of bringing
the Accused into a State where an arrest occurs. In the ICTY case of Prosecutor v. Dokmanovic,
Dokmanovic was lured to another state where he could be legally arrested by the UNTAES on
the pretext of a meeting to discuss compensation for lost property.104 He voluntarily and
knowingly crossed the border, where he was then arrested.105 The ICTY held that the method of
luring into another states territory did not violate international law.106
80.

In this case, Arduums arrest of the Accused did not violate his rights. Although the

Accused was taken by force following his refusal to comply with the security check, this act does
not constitute a form of coercion in Article 59(1)(b) as contemplated in the Statute. The
paragraph into which the prohibition is placed relates solely to acts of cruel, degrading, and
inhuman treatment or punishment.107 Cruel, degrading, and inhuman treatment or punishment
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
99

Rome Statute, art. 58(1).

100

Id. at art. 89(1).

101

Id. at art. 55(1)(b).

102

Id. at art. 55(1)(d).

103

The Prosecutor v. Dragan Nikolic, Decision on Interlocutory Appeal Concerning Legality of Arrest, Case No. IT94-2-AR73 (June 5, 2003).
104

Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from
the Yugoslavia Tribunal, 49 DEPAUL L. REV. 925, 970 (19992000).
105

Id. at 97071.

106

Id. at 971.

107

Rome Statute, art. 59(1)(b).

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is generally only of concern during detention. Moreover, arrest is inherently coercive, so the
prohibition cannot reasonably be applied to the stage of arrest.
81.

This case is similar to Dokmanovic. The record states that the Accused knew that

gambling occurred only on Arduum territory, and that prior to withdrawing his consent to the
security check, he realized that they were entering the gambling area.108 Thus, it appears from
the record that the Accused was probably across the border prior to withdrawing his consent to
the security check.

Unlike Dokmanovic, the Accused did not intend to cross the border.

However, he did not qualify his consent to the security check by informing the personnel that he
would not enter Arduum, despite knowing that a large part of the Casino was in that territory. If
he had entirely refused to subject himself to the security check, security probably could have
forcefully removed him from the premises under Konera and Arduum law. It would not make
sense, then, that the legal power to use limited force as security personnel would be diminished
by the initial consent of the Accused. Since the personnel did not bring him into Arduum with
the intent to effectuate his arrest, they were probably acting within their proper capacity as
private security. His conveyance into Arduum, then, probably did not violate any law, and
nothing indicates that his subsequent arrest once in Arduum violated his rights.
82.

The Arduum authorities did not violate the Statute or international law in the handling of

the surrender hearing. Article 59 of the Statute requires the custodial state to bring the Accused
promptly before a competent judicial authority and determine that the arrest warrant applies to
the arrestee, the arrest was executed according to procedure, and the rights of the Accused were
not violated. International law grants an arrestee the right to challenge the lawfulness of his
arrest and detention and the right to release in the case of unlawfulness.109
83.

Here, Evans had the opportunity to challenge the legality of his arrest. The court did not

explicitly hold that the arrest was not illegal but claimed that they had no choice but to execute
the arrest warrant pursuant to Article 59 of the Statute. If the national court was in fact unable to
rule on the legality of the arrest, then the Accuseds right to a fair opportunity to challenge the
arrest would be threatened. However, the record does not indicate that the Accused was denied
the right to appeal the decision to a higher court, or that an appeal was wrongfully dismissed.
Thus, it appears that the Accuseds rights were not violated in the surrender hearing.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
108

Facts and Procedural History 19.

109

International Covenant on Civil and Political Rights art. 9(4), Dec. 16, 1966, 999 U.N.T.S. 171.

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84.

A victim of unlawful arrest or detention is guaranteed an enforceable right of

compensation under the Statute, but the Court has explicitly rejected the argument that
compensation can take the form of release.110 Nevertheless, a stay of proceedings may be
granted if a human rights violation is so severe that it becomes impossible for him/her to make
his/her defence within the framework of his rights such that no fair trial can take place and the
proceedings can be stayed.111
85.

In the ICTY case Dragan v. Nikolic, the accused was abducted in Yugoslavia and

transported to Bosnia-Herzegovina, where he was discovered and arrested by agents of the court,
who were allegedly unconnected with the abduction.112 The Appeals Chamber held that the
abduction of the accused was not so egregious a violation of human rights that the Court should
set aside jurisdiction, but the court acknowledged that very severe violations could justify such
action.113
86.

Here, if rights of the Accused have been violated, the Court still should retain

jurisdiction. The abduction in Nikolic was more egregious than the alleged abduction in this
case. This case is also similar to Nikolic in that neither this Court nor the authorities who
arrested the Accused were connected with those who transported the Accused into the custodial
state. Further, the transportation of the Accused was probably a short distance and took little
time, less severe than a typical cross-border abduction involving greater distances. The alleged
violation is not so severe that it impacts the ability of the accused to receive a fair trial, and so it
does not compel this Court to stay proceedings.
87.

Personal immunity in international law applies primarily to a small set of senior

government officials, namely heads of state, heads of government, and foreign ministers,114 and
perhaps others with chief responsibilities in international relations.115 Officials not within the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
110

Lubanga, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge
to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006 4 (Dec. 14, 2006),
http://www.icc-cpi.int/iccdocs/doc/doc243774.pdf.
111

Id. at 39.

112

Dragan Nikolic, Decision on Interlocutory Appeal Concerning Legality of Arrest 2 (June 5, 2003).

113

Id. at 2833.

114

Dapo Akande, International Law Immunities and the International Criminal Court, 98 AM. J. INT'L L. 407, 409
(2004).
115

Id. at 410.

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scope of personal immunity may also receive immunity while engaged in official acts.116
88.

Article 27 of the Statute provides that This Statute shall apply equally to all persons

without any distinction based on official capacity. The article specifically states that elected
representatives are not exempted from criminal responsibility under this Statute.117 When a
State Party complies with an arrest warrant, official position will not provide immunity from
arrest by a State Party in compliance with an ICC arrest warrant. Otherwise, Article 27 and
Article 58, which authorizes the PTC to request States Parties to comply with arrest warrants,
would be rendered meaningless, since this Court relies heavily on States Parties in the arrest and
surrender of suspects, and those in official positions would be effectively insulated from being
brought before this court.
89.

Here, the Accused probably does not hold a position in government that would grant

personal immunity. As head of the leading party in parliament, he might be considered a head of
government, but even if this was true, Article 27 nullifies the claimed immunity.
90.

The Accused was not engaged in an official act at the time of arrest. He had gone to a

recreational site with friends for a private meeting.118 Therefore, he does not enjoy immunity as
a state official engaged in the acts of his office.
Victims Participation
91.

The applicants B01B20,000 should be recognized as victims throughout the hearing and

enjoy limited participation. The Court may deem victim participation to be appropriate as long
as it does not jeopardize the rights of the Accused.119 The Statute specifically allows for victims
to submit observations to the PTC in relation to proceedings regarding jurisdiction.120 In order to
participate in the proceedings, Rule 85 of the Rules of Procedure requires potential victims to
meet four criteria: the victims must be natural persons, the crime must fall within the jurisdiction
of the court, they must have suffered harm, and that harm must be causally linked to the crime.

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116

Id. at 412413.

117

Rome Statute, art. 27(1).

118

Facts and Procedural History 18.

119

Rome Statute, art. 68(3).

120

Rome Statute, art. 19(3) & art. 15(3).

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The victims here are natural persons, and the Courts jurisdiction over this matter has already
been analyzed. The harm suffered and its link to the crime remain at issue.
92.

The applicants have suffered harm sufficient for recognition as victims. Rule 85(a) of the

Rules of Procedure and Evidence requires that victims have suffered harm as a result of the
commission of any crime within the jurisdiction of the Court. At this stage of the proceedings,
the PTC does not need to definitively establish the specific harms suffered. 121 It is sufficient that
there are credible grounds in light of the evidence that harm within the meaning of Rule 85 has
occurred.122 The harm may be individual or collective, and may be physical, mental, emotional,
or economic, or impairment of fundamental rights.123
93.

Internationally recognized human rights should guide the Court in interpreting harm

case-by-case.124 The International Covenant on Economic, Social, and Cultural Rights (ICESC)
states that all people have a right to an adequate standard of living for himself and his family,
including adequate food, clothing and housing, and to the continuous improvement of living
conditions, and it recognizes freedom from hunger as a fundamental right.125 The Universal
Declaration of Human Rights (UDHR) further states that all are entitled to freedom from fear
and want.126
94.

Here, B01B20.000 have suffered fear and deprivation of food and other important

resources, which constitute human rights violations under the UDHR and the ICESC.127
Evidence indicates that the alleged harm is real and qualifies them for the status of victims in
accordance with Article 68 and Rule 85.
95.

Although the degree of harm suffered probably varies between the inhabitants of Gyst

and the other Brisk nationals, this does not bar the victims from participating together at this
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121

Situation in the Democratic Republic of the Congo, Decision on the Applications for Participation in the
Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 82 (Jan. 17, 2006), http://www.icccpi.int/iccdocs/doc/doc183441.pdf (hereinafter DRC, Decision on the Application in the Proceedings).
122

Lubanga, Decision on victims' participation 99 (Jan. 18, 2008),

cpi.int/iccdocs/doc/doc409168.pdf (hereinafter Lubanga, Decision on Victims' Participation).

http://www.icc-

123

Id. at 92.

124

DRC, Decision on the Application in the Proceedings, 81.

125

International Covenant on Economic, Social, and Cultural Rights art. 11, Dec. 16, 1966, 993 U.N.T.S. 3.

126

Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948),
Preamble.
127

Facts and Procedural History 25.

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stage. Moreover, they have suffered a harm of sufficient certainty and specificity to establish
their right to participate in the confirmation hearing despite their high quantity.
96.

A causal link between the crime and the harm requires an evidential connection between

the victims and the evidence that the Court will consider, and the proceedings must impact the
personal interests of the victims.128
97.

Victim participation is not a once-and-for-all determination, and its propriety should be

assessed according to the particular issues under consideration during the proceedings in which
the victims seek to participate.129 The standard of proof at this stage in the proceedings is one of
credibility that harm has occurred and that it is sufficiently linked to the crime.130
98.

The applicants have a direct link to relevant evidence. Both the intensity and breadth of

harm done to the nationals of Brisk have a bearing on the gravity thresholds in the Statute.
These thresholds are key to the issues of jurisdiction and admissibility that properly belong in
this confirmation hearing. Since many of the victims hail from areas outside of Gyst, the court
may gain a better grasp of the breadth of the blockades impact through their participation, and
participation would provide insight into the intensity of harm.
99.

This hearing also affects the personal interests of the victims. Victims interests include,

inter alia, reparations, opportunity to express views and concerns, determining truth, protection
of dignity, security, and recognition as victims.131 The interests affected by the proceedings are
of particular significance when the victims access to full reparation is dependent on the outcome
of criminal proceedings.132
100.

Here, the confirmation hearing sufficiently affects the victims interests to grant them

participatory rights. Reparation for the victims is among the predominant interests affected by
these proceedings. Since the blockade is still intact without a known timeline or intent to
withdraw, the successful confirmation of charges will place significant pressure on other
potentially liable leaders to remove the blockade to avoid prosecution.133 Removal of the
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128

Lubanga, Decision on victims' participation, 95.

129

Id. at 101.

130

See supra note 67 and accompanying text.

131

Lubanga, Decision on victims' participation, 97.

132

DRC, Decision on the Application in the Proceedings, 52.

133

Facts and Procedural History 7.

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blockade is essential to victim reparation. Furthermore, a conviction of the Accused would
provide an avenue for reparation pursuant to Article 75(2) where probably no other alternative
means of redress is available.
101.

This Court should grant limited participatory rights in the remainder of the confirmation

hearing similar to the participatory rights granted in the confirmation hearing in Lubanga.
Victim participation must not jeopardize the rights of the accused or the execution of a fair
trial.134 In Lubanga, the PTC decided that victim participation at the confirmation hearing would
be limited to opening and closing statements at the confirmation hearing, requests for public
documents, observation of public parts of the hearing, and requests to intervene subject to the
discretion of the Court.135 The Court in that case, partly because of the victims anonymity,
denied the victims the right to present additional facts or evidence or question witnesses.136
102.

The Court has confirmed that sometimes victims may present additional evidence where

it will assist in the determination of the truth.137 However, this right depends on the stage of the
proceedings. During the trial stage, the Court has the authority to request additional evidence
from any party pursuant to Article 69(3), but during the pre-trial phase the Court only has power
to request that the Prosecutor consider providing additional evidence pursuant to Article
61(7)(c)(i). Thus, victims cannot present additional evidence at the confirmation hearing, and
the PTC does not have the authority to request additional from the victims during the hearing.138
103.

Here, the victims should have rights to participate in opening and closing arguments,

request to intervene, access public documents, and observe public parts of the hearing. The
victims should not have rights to present evidence during the confirmation hearing.
104.

The right to make intervening submissions should be subject to the Courts discretion

because victim submissions may create long delays in the proceedings.139 This compromises the
right of the Accused to an expeditious trial. Furthermore, if the Court does not make victim
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134

Rome Statute, art. 68(3).

135

Lubanga, Decision on victims participation, 8.

136

Id.

137

Id. at 108.

138

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, 108-112 (May 13, 2008), http://www.icccpi.int/iccdocs/doc/doc486390.pdf.
139

Scott T. Johnson, Neither Victims nor Executioners: The Dilemma of Victim Participation and the Defendants
Right to a Fair Trial at the International Criminal Court, 16 ILSA J. INT'L & COMP. L. 489, 495 (2010).

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submissions subject to Court approval, there is a danger that emphasis on the merits of the
prosecutions case will be diverted due to a high volume of victim submissions.140 This may be
of particular concern with the high quantity of victims. Thus, participatory rights should be
granted to B01B20,000, but the rights should be limited in the manner outlined above.

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140

See id.

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