Professional Documents
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IN THE MATTERS OF
PROSECUTOR VS. MUSTAFA ALIAS 40TH FIR-RA
AND
PROSECUTOR VS. RHAEGAR TARGAREYAN
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TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................................................. 2
INDEX OF AUTHORITIES .......................................................................................................................................... 3
STATEMENT OF JURISDICTION ............................................................................................................................ 5
CHARGES FRAMED ...................................................................................................................................................... 6
QUESTIONS PRESENTED........................................................................................................................................... 7
STATEMENT OF FACTS.............................................................................................................................................. 8
SUMMARY OF PLEADINGS................................................................................................................................... 11
PLEADINGS .................................................................................................................................................................... 12
1. THIS HONOURABLE COURT HAS NO JURISDICTION TO TRY THE CASE OF
ACCUSED NO.1, GENERAL MUSTAFA. .......................................................................................................... 12
1.1.
1.1.1.
1.1.2.
1.2.
The Republic of White Land is not party to the Rome Statute. ...................................................... 14
2.1.1.
2.1.2.
2.1.3.
Presence of Red Clad Men does not signify the alleged conduct by the accused. ......... 16
2.1.4.
2.1.5.
2.2.
The elements of the Crime enlisted under the Rome Statute are not fulfilled. .......................... 17
2.2.1.
2.2.2.
2.2.3.
3.1.1.
The Paramilitary forces were within their rights in using tear gas shells in order to
control the riot on Feb 10, 2014 by the College of Red Priests. ............................................................. 20
3.1.2.
There have been incidents of violence and rioting in the Capital City earlier. .............. 21
3.1.3.
Tear gas shells were fired by the paramilitary only when the crowd began to riot. ..... 21
3.1.4.
Use of riot control agents such as tear gas shells under the Chemical Weapons
Convention is not prohibited for the purpose of domestic riot control. ............................................... 22
3.1.5.
There is no sufficient evidence to show the poisonous gas bombs were exploded by the
Paramilitary forces in the crowd and that this was done under the order of Rhaegar Targayeran.
22
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3.1.6.
The Pre-recorded tape aired by Radio Nine is hearsay evidence and insufficient to
prove that the procession was a peaceful one. ............................................................................................. 22
3.2.
The elements of crimes under the above mentioned provision is not fulfilled. ......................... 23
3.2.1.
4.1.1.
There is no sufficient evidence to indict Rhaegar Targareyan for crimes against
humanity under 7(1)(i)-Enforced disappearance of persons ................................................................... 24
4.1.2.
4.2.
The elements of crimes under the Rome Statute is not fulfilled. .................................................... 26
4.2.1.
Requirements under Article 7(1) (g-6 ) and Article 7(1)(i) not fulfilled. .......................... 26
PRAYER ............................................................................................................................................................................ 28
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INDEX OF AUTHORITIES
I.
CASES
Barcelona Traction
BOOKS REFERRED:
Kanade, Jai and Kanade Vishal, Introduction to Public International Law, Lexis Nexis
Publications
Oppenheim L., Oppenheims International Law, Vol.1 (9th Ed. 1996, ed. Robert
Jennings & Arthur Watts)
Stephen, J., 1872, The Indian Evidence Act, with an Introduction on the Principles of
Judicial Evidence, Calcutta: Thacker, Spink & Co.
III.
DICTIONARIES:
Corpus Juris Secundum, Vol. 77, 2005, West Thompson Publishing, New York.
Sweet and Maxwell, Whartons Law Lexicon, 14th Edition (2004), West Groups,
N.York Edition (1997). ULP Co. Pvt. Ltd.
IV.
CONVENTIONS:
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V.
P. Jessup, the Estrada Doctrine, 25 AJIL 1931, p.719 (as cited in Shaw, p.306)
VI.
E-SOURCES:
www.inc-int.org
www.ijmonitor.org
www.iccnow.org
www.un.org
VII.
WEBLINKS:
http://www.icc-cpi.int/pages/record.aspx?uri=279858
http://plato.stanford.edu/entries/evidence-legal/#AdmExcRul
http://www.un.org/en/preventgenocide/adviser/pdf/osapg_analysis_framework.pdf
https://www.icc-cpi.int/darfur/albashir/Documents/AlBashirEng.pdf
http://www.icc-cpi.int/pages/record.aspx?uri=1918951
https://www.icc-cpi.int/about/witnesses
https://www.icc-cpi.int/drc/lubanga
https://www.icc-cpi.int/drc/katanga/Documents/KatangaEng.pdf
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STATEMENT OF JURISDICTION
The Honble Courts Pre-trial Chamber exercises jurisdiction in the case, under Article 61(1)
of the Rome Statute of International Criminal Court.
Article 61(1) - Confirmation of the charges before trial
Within a reasonable time after the person's surrender or voluntary appearance before the
Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the
Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor
and the person charged, as well as his or her counsel.
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CHARGES FRAMED
1. That a charge has been framed against Accused No. 1, General Mustafa, for the
offence of Crimes against Humanity under Article 7(1)(a) of the Rome Statute;
2. That the first charge has been framed against Accused no. 2, Rhaegar Targareyan for
the offence of Genocide under Article 6(b) of the Rome Statute;
3. That the second charge has been framed Accused No. 2, Rhaegar Targareyan for the
offence of Crimes against Humanity under Article 7(1)(i) and Article 7(1) (g)-6 of
the Rome Statute.
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QUESTIONS PRESENTED
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STATEMENT OF FACTS
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PROTESTS:
A survey by The Times of Black Land on the condition of the Firos community
revealed the poor education rate, discrimination and rejection of job opportunities for
them in the State. This report created further furor in the country. To oppose the
policies of the country, the Community under the leadership of the FIR-RA took out
a procession. Tear gas shells were fired by the Paramilitary to bring the people under
control and restore law and order. There were two bombs exploded in the procession
that released asphyxiating fumes, which resulted in the deaths of more than 100
people.
CHARGES AGAINST RHAEGAR TARGAREYAN:
An FIR was filed regarding the kidnapping of eight persons including three men, four
women and a boy between 13 and 14 years of age. They had been reported missing
since February 10, 2014. On February 17, two of the allegedly kidnapped persons
came back with scars and bruises and the brutally assaulted bodies of the three girls
were recovered from the outskirts of the Capital City. In an interview of the survivors
conducted by a senior Journalist, Lorres Tyrell, they indicated the involvement of the
Targareyan regime in the abduction.
UNREST OF THE FIROS COMMUNITY:
Post this incident, the community started organizing itself into groups. They
demanded a nation free of Targareyans and declaration of Firos as the national
religion of the country. The Nationwide membership of the Firos religion increased
to 49% within three months. The City of White Land had soon become an all Firos
city-state, becoming a haven for all kinds of Firos community. As per a report by the
Sons of Harpy, FIR RA became the de facto administrator of the city. People
flooded into White Land in lieu of an annual tax paid to the FIR-RA. However no
documentary proof could be produced. Children were holding banners stating
Article 21.
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SUMMARY OF PLEADINGS
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PLEADINGS
1. THIS HONOURABLE COURT HAS NO JURISDICTION TO TRY
THE CASE OF ACCUSED NO.1, GENERAL MUSTAFA.
The challenge to the jurisdiction of this Honourable Court will hold, for the reason; a)
The Territory of White Land is a State; b) The Republic of White Land is not party to the
Rome Statute.
1.1. The Territory of White Land is a State.
A State proper is in existence when people are settled in a territory under its own
sovereign Government. 1 The State is commonly defined as a community which
consists of a territory and a population subject to organized political authority and
such a state is characterized by sovereignty.2
1.1.1. Criteria of Statehood is fulfilled:
The State as a person of International Law should possess the following
qualifications:
A permanent population
A defined Territory
Government
L. Oppenheim, Oppenheims International Law, Vol.1 (9 th Ed. 1996, ed. Robert Jennings & Arthur Watts) P.
120.
2
Arbitration Commission of the European Conference on Yugoslavia, Opinion no.1, 92 ILR , P. 162, 165
3
Article 1 of the Montevideo Convention on the Rights and Duties of States. Though the Convention was a PanAmerican Union Convention, Article 16 of the same provides that, The present Convention shall be open for
the adherence and accession of the States which are not signatories. Hence, the Convention is applicable even
to those countries, which are not its signatories.
4
As per the Report made public by the Sons of Harpy Page 6, Moot Proposition
5
White Land Independence Act, 2014 (Page 9, Moot Proposition)
6
Supra 4
1
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The Capacity to enter into relations with the other states also means
sovereignty. Sovereignty is achieved when the Government is in effective
Control of the State. The Government is said to be in effective control of the
State when the majority of the population of such a State obeys the commands
of such Government with a reasonable expectancy of permanence.7
In the instant case, the people living the Territory of White Land have been
paying an annual tax to the FIR-RA in lieu of their residence8 and have also
consented to the formation of the New state and New Government through the
Referendum.9
Hence, if given a chance, the State can enter into treaties with other nations.
But the Other nations have refused its recognition as a State.
1.1.2. Recognition of the State of White Land:
State practice over the past century has favored the declaratory approach over
the Constitutive approach of Recognition. This is to say, that the State, which
fulfills the criteria of statehood does not necessarily need recognition by the
other States.10 In fact, The political existence of the state is independent of
recognition by the other states.11 Recognition only serves as an affirmation of
Statehood.
Constitutionality or unconstitutionality of the Government is an internal affair
of the State. Thus non-recognition of the Government on the ground of
Unconstitutionality would amount to interference with the domestic affairs of
the state. 12 The Montevideo Convention states No state has the right to
intervene in the internal or external affairs of another.13
Hence, the Statement of the US Representative to the UN and the refusal to
recognize the Sovereignty of the State of White Land by the State of Black land
Kanade, Jai and Kanade Vishal, Introduction to Public International Law, Lexis Nexis Publications, P. 102
Supra 4 Page 6
9
Page 9, Moot Proposition
10
Supra 7 P.100
11
Article 3, The Montevideo Convention on Rights and Duties of States. It also states, Even before recognition
the state has the right to defend its integrity and independence, to provide for its conservation and prosperity,
and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to
define the jurisdiction and competence of its courts.
12
P. Jessup, the Estrada Doctrine, 25 AJIL 1931, p.719 (as cited in Shaw, p.306)
13
Article 8, The Montevideo Convention on Rights and Duties of States
8
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14
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22
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2.1.3. Presence of Red Clad Men does not signify the alleged conduct by the
accused.
The unfounded assumption that the red clad men present at the temple 25 is
whimsical so as to state that any person who wears red belongs to the Firos
community. There is no definitive link between the red clad men and the Firos
community. Additionally, there is no link between the Defendant and the redclad men. Hence, Article 25(3)(a) of the Rome Statute would not be
applicable.26
2.1.4. Credibility of Witness X is disputed.
Further, the credibility of Witness X is challenged on the grounds that the
identity of this witness has not been revealed. The validity of inclusion of
WITNESS Xs testimony as his identity has not been disclosed by the Office of
the Prosecutor, it is contended that non- disclosure of identities of such
witnesses is inconsistent with his right to fair and impartial trial.27 The right to
fair and impartial trial is a fundamental right accepted by most states. It is a
general principle of law.28 It is a General Principle of Law which is recognised
by civilised states. It is an instruct idea of law and basic to all legal systems.
Principles of justice are founded on the very nature of man as a rational and
social beings therefore it is essential that every man has the right to be heard
without any prejudice to his rights. In the Continental Shelf (Tunisia/ Libyan
Arab Jamarhiya) Case29, the ICJ made the following observation with respect
to equity, Equity as a legal concept is a direct emanation of the idea of justice.
The court, whose task by definition is to administer justice, is bound to apply
it.30
25
Supra 16
Article 25(3)(a), Rome Statute - Individual criminal responsibility- In accordance with this Statute, a person
shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that
person Commits such a crime, whether as an individual, jointly with another or through another person,
regardless of whether that other person is criminally responsible.
27
General Principles of Law; As mentioned under Article 38 (1) of the Statute of the International Court of
Justice
28
The right to fair trial is a widely accepted common law principle and is imbibed in most municipal laws of the
world. The principle of fair and impartial trial is also founded on the basic principles of justice, equity and good
faith which are natural laws., Article 10 of the Universal Declaration of Human Rights
29
Judgment decided on 24th February, 1982
30
Id.
26
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are made against General Mustafa alias the 40th FIR-RA which do not satisfy the
elements of crime in order to indict him of any charge against him.
2.2.1. Conduct of Murder First Element is not fulfilled.
Firstly, pursuant to the first precondition of killing of one or more person, it is
pertinent to note that since Article 7 pertains to international criminal law, its
provisions, consistent with Article 2236, must be strictly construed.37
In case of ambiguity, the definition shall be interpreted so as to give a benefit
of doubt. Pursuant to the initial evidence perused, it is concluded that the
prosecution fails to prove the first element of the crime.
2.2.2. Widespread systematic attack- Second element not fulfilled.
Secondly, with regards to the widespread or systematic attack directed against
a civilian population, it is vehemently denied that there was any attack planned
or conducted against the civilian population by General Mustafa alias the 40th
FIR-RA. There is no sufficient evidence leading to any link between the fire at
the temple on the 12th of September 2014 and General Mustafa.
2.2.3. Knowledge or Intent of the Crime Third Element not fulfilled.
Thirdly, it has been previously established that there was no systematic attack
against the civilian population on part of General Mustafa and the Firos
community. In continuation of the above, it is clear that since there was no
systematic attack planned, the question of knowledge, intent and the conduct
cannot be raised at all. Additionally no fact or evidence has come into the light
that links General Mustafa with the fire at the temple on 12th September,
2014.
Additionally, the Defendant is not responsible for any violation whatsoever
under Article 16 of the Protocol II of the Geneva Convention.38
Lack of sufficient evidence is no cause for conviction and becomes a stronger
36
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case for acquittal. In the Ali Kushayb case39, there was no sufficient evidence
against the accused and hence it resulted in an acquittal. 40 In the Ngudjolo
Chui case 41 , the accused was acquitted on the same grounds. The Appeals
Chamber also upheld the acquittal.42 The court stressed that the ruling does not
mean that no crimes were committed in Bogoro nor does it question what the
people of this community have suffered on that day, but that it was difficult
to establish Ngudjolos guilt beyond a reasonable doubt because the testimony
was too hazy and contradictory43
Therefore, since none of the criteria of the crimes against humanity of murder
are satisfied, the charges against General Mustafa fall.
39
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They had the intent to oppose the Government and The FIR-RA
and their supporters demanded ousting of the royal family.47
45
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3.1.2. There have been incidents of violence and rioting in the Capital City earlier.
The statement made by Rhaegar Targareyan did not go well with the FIROS
community. It led to a series of protests against the royal family and the
government. 49
The capital city faced severe unrest, and violent revolts. The 40th FIR-RA and
the College of Red Priests immediately withdrew their support to the
government in power. They demanded a public apology from Rhaegar
Targareyan and his immediate resignation from his office.50
Hence an atmosphere of revolt, imminent violence and rioting was already
prevalent in the Capital city. Tension between the Firos community and the
Government was mounting.
When the Procession on 10th February, took place, in order to prevent such an
atmosphere surrounding it to lead to further violence, the Paramiltary forces
were called in.51
3.1.3. Tear gas shells were fired by the paramilitary only when the crowd began to
riot.
Since the situation was becoming explosive and a domestic riot was imminent,
Rhaegar Targareyan swiftly called two Divisions of Paramilitary Forces to
restore law and order. He wanted normalcy to be restored. The soldiers had
appropriated all neighboring buildings and did not commit any act of physical
violence against the crowd. One division surrounded the procession as a
preventive measure.
52
The crowd however, became extremely hostile towards the legal authorities
and began pelting stones and firing airguns. In order to control the riot, tear
gas shells were fired.
47
Supra 44
Id.
49
Page 3, Moot proposition
50
Id.
51
Id.
52
Supra 44
48
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3.1.4. Use of riot control agents such as tear gas shells under the Chemical Weapons
Convention is not prohibited for the purpose of domestic riot control.
The use of such chemicals for law enforcement including domestic riot
control purposes is not prohibited.53
While tear gas and pepper spray, under international law, are banned as a
method of warfare, there are no restrictions to their domestic use as a riot
control agent. According to the CWC, riot control agents are any chemicals
which are not specifically listed in their list of prohibited chemicals and that
can cause in humans rapid sensory irritation or disabling physical effects
which
disappear
within
short
time
following
termination
of
exposure. Under Article II Clause 9 of the CWC, the use of such chemicals
for law enforcement including domestic riot control purposes
54
is not
53
54
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FIROS community. The forces were able to take care of the situation, but our
commander did not want us to waste any time.56
3.2. The elements of crimes under the above mentioned provision is not fulfilled.
Article 6(a) of the Rome Statute specifies Genocide by killing. There has to be
a strong genocidal intent that is to be proved under the said Provision.57 Also, the
other elements that are to be proved under the specific provision are the conduct
of killing, the ethnicity of the people killed, the intent to destroy the particular
ethnic group and the pattern of such destruction.
Until all elements of the crime are satisfied, no case is made out for prosecution
against the perpetrator. In this case, false, baseless and unfounded accusations
are made against Rhaegar Targareyan which do not satisfy the elements of crime
in order to indict him of any charge against him.
3.2.1. The Intent to destroy a particular ethnic group is not fulfilled.
By the perusal of evidence mentioned above, there has been no genocidal intent
on the part of Rhaegar Targareyan. It is a simple instance of a mob going out of
bounds and the paramilitary forces attempting to control it. Hence, there is a
complete lack of any act of genocide or a pattern of destruction like a genocide
by killing.
This also destroys the other elements of the crime of Genocide by killing and
refutes all the charges against Rhaegar Targareyan.
Hence, Rhaegar Targareyan should not be held Criminally Liable for Genocide under Article
6 of the Rome Statute.
56
57
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58
59
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4.1.1.2. The statements made by the witnesses are unreliable and prove no direct link
between the abduction and the involvement of Targareyan in the same.
Firstly, the witnesses state that they were picked up by masked men, which
indicates that they were completely unaware of the identity of the abductors.
Additionally, they had been blindfolded in a poorly lit room and hence were
unaware of their surroundings as well. The only incident the man directly
witnessed was the alleged rape of the boy by two unidentified men. There was
no proof linking these men to Rhaegar Targareyan.
Secondly, the man himself admitted that he was not allowed to sleep for two
days, and was administered a series of injections which made him hallucinate.
He also felt dizzy and his vision was blurred thereby making whatever he
witnessed or heard questionable, unreliable and not a definitive proof of
Targareyans involvement. Also, they were given bare minimum food and the
man was not in a coherent, sound state.
Therefore his claims of having heard voices taking names like Boss,
Targareyan etc. or shrieks of girls begging for mercy cannot be relied on.
There has been no tangible, credible or reliable evidence to prove that Rhaegar
Targareyan ordered the abduction and disappearance of the man, boy and
allegedly 200 other people.
Neither is there any evidence linking him to the sexual assault, rape or murder
of the girls, whose bodies were recovered from the outskirts of the capital city.
4.1.2. Hearsay Evidence cannot be admissible in any circumstance of a criminal
proceeding.
It is a generally accepted rule of law that hearsay Evidence will not be relied
on as evidence. 60 Hearsay is not evidence in legal proceedings.
61
As a
general rule, the court will not rely on hearsay as a premise for an inference
towards the truth of what is asserted. It will not allow a witness to testify in
court that another person X (who is not brought before the court) said that p on
60
Stephen, J., 1872, The Indian Evidence Act, with an Introduction on the Principles of Judicial Evidence,
Calcutta: Thacker, Spink & Co.
61
Id.
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62
http://plato.stanford.edu/entries/evidence-legal/#AdmExcRul
[1970] ICJ 1
64
Article 7, The Rome Statute of the International Criminal Court. The Rome Statute is a treaty that reinforces
these rights across the world with an aim to protect these humane rights from being violated in any manner. This
treaty is based on conscious consensus of states which are mindful and recognise the need for the protection and
prevention of any infringement of these human rights. States are determined and empowered to act individually
and collectively in the preservation of these rights. In pursuance of the same, the Rome Statute has enumerated
what constitutes as a crime against Humanity.
65
Page 5, Moot Proposition
66
Prosecutor vs. Ali Kushayb ICC-02/05-01/07-3
63
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67
http://www.icc-cpi.int/pages/record.aspx?uri=279858
Prosecutor vs. Ngudjolo Chui ICC-01/04-01/07-260-tENG
69
ICC-01/04-02/12-271
70
Id.
68
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PRAYER
In the light of Issues raised, arguments advanced and authorities cited, the Defence
humbly submits that this Honble Chamber may be pleased to:
1. Drop the Charges against Accused No. 1 General Mustafa
2. Drop the Charges against Accused No. 2 Rhaegar Targareyan
And
Any other order as it deems fit in the interest of equity, justice and good
conscience.
For This Act of Kindness, the Defendants Shall Duty Bound Forever Pray.
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