PLEADINGS

INTERNATIONAL ARREST WARRANT BY ICC AGAINST GENERAL JUPITER IS

ILLEGAL AND VIOLATIVE OF INTERNATIONAL LAW.

International Arrest is not in accordance with International Law

A. ICJ CAN ADJUDICATE UPON THE PRESENT ISSUE

a. Articles 1 and 4 of the Compromis provide an independent basis for jurisdiction

under Article 36, paragraph 1, of the Statute of the Court.
According to Article 1 of the Compromis signed and jointly notified to the International Court of
Justice by Blue Water and Green Desert, the parties submit to the jurisdiction of the Court the
questions and the legal issues raised in the Compromis pursuant to Article 40(1) 1 of the Statute of
the International Court of Justice. However, the submission is subject to the issue of Jurisdiction
being debated and argued upon.2 Article 4 provides that the parties are legally bound to accept the
decision of the court irrespective of the judgment. Furthermore, the enforcement of the judgment
shall be carried out in good faith and without prejudice to the rights and sovereignty of
international states.3 Thus, by the special agreement entered into between the parties, the Court
has the jurisdiction to adjudge the present dispute.4

b. Blue Water and Green Desert have accepted the Compulsory Jurisdiction of ICJ
Alternatively, if the Court finds that there is a lack of jurisdiction under 1.15, the
Applicant contends that the Court has jurisdiction under Article 36(2) of the UN
Charter, whereby both the parties have accepted the Compulsory Jurisdiction of the
ICJ for „legal‟ disputes.6
c. The Current issue is applicable to jurisdiction of ICJ.
Article 37 of ICJ statute read with Article 9 of Genocide Convention makes it clear
that ICJ has jurisdiction over the present dispute between the Contracting Parties
relating to the interpretation, application or fulfilment of the present Convention,
including those relating to the responsibility of a State for genocide or for any of the
other acts enumerated in article III.

1
Article 40(1), UN Charter.
2
Compromis, Article 1.
3
Compromis, Article 4.
4
UN Charter, Article 36 (1).
5
Compromis
6
UN Charter, Article 36(2).
 B. ACT OF MASSACRE HAS NOT BEEN COMMITTED BY THE STATE.

a. The Act committed has no direct link with the state.

“a state sponsored militia entity, ‘Simba Warriors’ opened fire on the innocent Dolo

volunteers”7. It can be inferred from this that a massacre occurred however it was

done without any legal or written sanction provide by the govt of bw showing that

they do not have the same attribution and accountability as compared to the bw army,

since that is an official government organ and the simba warriors are merely state

sponsored militia hence the massacre was not a govt order hence it is not a state

responsibility.

b. The Massacre committed is not genocide.

The massacre that occurred in the State of Blue Water is not Genocide as proposed by ICC’s
prosecutor and Green Desert. It can be easily inferred from the line “The movement, though
started on a peaceful note, eventually took on a violent turn with symbols and institutions
representing Blue Water being attacked. Central Blue Water forces were also targeted
attacked and killed.”8 that the Dolo Movement took a violent turn and were destroying the
public property of BW and killing Blue Water forces. It turned into an internal armed conflict
affecting the State of BW.

A state sponsored militia i.e Simba warriors which fired upon the protesters causing death
were there . Genocide is an organized and not a spontaneous crime.9 There was no systematic
attack, no planned killing against any particular ethnic or national group.

C. General Jack Jupiter IS NOT GUILTY OF THE CRIME OF GENOCIDE

UNDER ARTICLE 6 OF THE ICC STATUTE

In the instant proceedings, the accused, General Jack Jupiter, cannot be held guilty for the crime

against humanity of murder, persecution of Dolos under Article 7 of the ICC Statute.

7
Compromis
8
Compromis
9
According to the Trial Chamber of the International Criminal Tribunal for the Former
Yugoslavia, `a policy must exist to commit these acts [although] it need not be the
policy of a State': Prosecutor v. Tadic (Case No. IT±94±1±T), Opinion and Judgment,
7 May 1997, para. 655.
 a. The victims were not part of a protected group

Under Article 6 of the ICC Statute and Article II (a) of the Genocide Convention, the crime of

genocide requires the intent to destroy a “particular group of people”. The ICJ, too, has upheld

that genocide involves the denial of right of existence to entire groups and not just collections

of individuals.10 The definition of such a protected group must be positive in nature. 11 It must

be possible to identify such a group on the basis of positive characteristics that it possesses,

and not because it does not have the characters of a particular group.12 The ICTY also reached

the same conclusion, as it held genocide means the denial of right of existence to positively

defined groups, with empirically distinguishable characteristics.13 The reason the crime of

genocide has not occurred because the members at the meeting where-in the massacre took

place were not part of a single entity to prevent further escalation of violence. Therefore, no

genocide took place in the present case.

b. The evidence before the ICC has to conclusively prove that genocide can be

attributed to General Jupiter

Article 66 (3) of the ICC Statute states that guilt of the accused must be proved beyond

reasonable doubt. It is also a settled principle in international law that a party asserting a case

must establish it14 and therefore the respondent must bear the burden of proving his case.15It is

also a long-standing rule of international law that a charge of great severity must be proved

absolutely conclusively for the court to take notice of the same.16 Moreover, the same standard

10
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide International Court
of Justice, May 28, 1951, Advisory Opinion, 1951 I.C.J. 15.
11
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro),2007 I.C.J. 191, ¶ 190.
12
Id., ¶ 197.
13
Prosecutor v. Milomir Stakic (AJ), IT-97-24-A, (ICTY), Supra Note 15, 22 March 2006, [hereinafter Stakic], ¶
28.
14
Nicaragua case, Supra Note 46.
15
Id.
16
Corfu Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, ¶ 17.
of proof applies for attribution with respect to acts of genocide.17 In this regard, the Court will

also consider whether evidence collected is reliable and has any probative value before it is

considered to be admissible.18 In considering the probative value of evidence, the court will

also try and verify the accuracy of the evidence, and examine circumstances surrounding the

collection of such evidence.19 As a result, evidence obtained from open sources must meet very

high standards in order to be admitted. There is nothing conclusive to suggest that genocide of

any sort against the Dolo community can be attributed to General Jack Jupiter beyond any

reasonable doubt.

c. General Jupiter did not have the requisite mens rea to commit genocide against

the Dolo community

The general requirement of mens rea for any crime under international law is that a person

shall be held guilty of a crime only if the material aspects of the same were committed with

knowledge and intent.20 A person has intent where he means to engage in a particular conduct

or give effect to a certain consequence.21 He has knowledge where he is aware that a

circumstance exists or that a consequence will occur in the ordinary course of events. 22 The

crime of genocide would also require a dolus specialis or specific intent that is separate from

the general mens rea element of knowledge and intent23; this specific intent involves the

intention to destroy in whole or in part a national, ethnical, racial or religious group.24 In

genocide, mere discriminatory intent towards a particular group25 is not enough; it has to be

17
Bosnia and Herzegovina v. Serbia and Montenegro, Supra Note 95, ¶ 209.
18
Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Judgment, 14 March 2012, International Criminal
Court (ICC).
19
Id.
20
ICC Statute, Article 30(1).
21
ICC Statute, Article 30(2).
22
ICC Statute, Article 30(3).
23
Katanga, Supra Note 53, ¶ 527.
24
The Prosecutor v Jelisic, Case No. IT-95-10-A, (AJ), 5 July 2001, ¶ 45-46.
25
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)
2015 ICJ 3, ¶ 143.
accompanied by willful and deliberate acts to obliterate a particular group.26 The Applicant

submits that General Jupiter did not possess the requisite dolus specialis to carry out genocide

against the Dolo Community. The intention that did exist on General Jupiter’s part is to prevent

any disruption in public peace and stabling occurring from the violent movement. There is no

evidence to suggest that this was done in furtherance of an intention to destroy the Dolo

community.

d. Arguendo, it cannot be established that General Jupiter had effective control

over the persons committing genocide

To determine whether a commander is guilty of the genocide committed by his subordinates,

the Court may look into his/her statements in light of the crimes committed and decide on the

necessary implications.27 The most important factor remains effective control. If the alleged

perpetrator had effective control over the persons carrying out the acts, then he will be held

liable for the same.28 Effective control extends, in this regard, to ideological control, that is the

capacity to give orders to a particular group of subordinates to make them do or prevent them

from doing something.29 Since there is no statement or legal sanction showing that General

Jack Jupiter was present or even commanded the genocide against the Dolo community the

only real evidence is show during the prosecutors, investigation which cannot be held as

ultimatum without any further investigation. and not in the compromise. Further, in the incident

where the Simba warriors were shown to open fire, the firing was clearly intended for the entire

crowd and not directed towards a particular community. Moreover, it cannot be proved beyond

reasonable doubt that deaths did occur in that particular incident and if they did, all the

26
Bosnia and Herzegovina v. Serbia and Montenegro, Supra Note 95, ¶ 188.
27
Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 263 ff., ¶ 32.
28
The Prosecutor v Bagosora et al, Case No. ICTR-98-41- T, Judgment and Sentence, 18 December 2008, ¶
2012.
29
The Prosecutor v. Kajehjeli, Case No. ICTR-98-44A- T, Judgment and Sentence, 1 December 2003, ¶ 773.
casualties were from the Dolo community. As a result, it cannot be proved beyond reasonable

doubt that General Jupiter oversaw the genocide of the Dolo community.

D. General Jupiter enjoys sovereign immunity.

General Jack Jupiter in not guilty of being individually criminally responsible as he committed

an official act and enjoys ‘sovereign immunity’.

a. The act committed by General Jack Jupiter is an official act.

whether or not an act is jure imperii or sovereign for the purposes of state immunity does not

depend on the international legality or otherwise of the conduct, but on whether the act in

question is intrinsically governmental. This in turn depends on an analysis of the nature of the

act as well as the context in which it occurred30

b. General Jack Jupiter enjoys immunity rationae personae.

In describing the rule according immunity ratione personae in the Arrest Warrant case, the ICJ

stated that it applies to ‘diplomatic and consular agents [and] certain holders of high-ranking

office in a State, such as the Head of State, Head of Government and Minister for Foreign

Affairs’. In the Arrest Warrant case, the icj went even further by granting “full immunity from

criminal jurisdiction and inviolability” to certain high-ranking office holders, which “protect

the individual concerned against any act of authority of another State which would hinder him

or her in the performance of his or her duties.”31 In international law it is firmly established

30
See Lord Wilberforce in I Congresso del Partido [1981] 2 All ER 1064, at 1074 (HL): ‘in considering, under
the restrictive theory, whether State immunity should be granted or not, the court must consider the whole context
in which the claim against the State is made, with a view to deciding whether the relevant act(s) on which the
claim is based should, in that context, be considered as fairly within an area of activity, trading or commercial or
otherwise of a private law character, in which the State has chosen to engage or whether the relevant activity
should be considered as having been done outside the area and within the sphere of governmental or sovereign
activity’. See also Holland v. Lampen Wolfe [2000] 3 All ER 833 (HL), where Lord Hope stated that ‘it is the
nature of the act that determines whether it is to be characterised as iure imperii or iure gestionis.
31
Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belgium), 2002 i.c.j. 3 (Feb. 14) at § 54;
see also Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France),
2008 i.c.j. 177 (June 4) at § 170.
that certain holders of high-ranking office in a State, such as the... Head of Government and

Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and

criminal’ form which it can be inferred that a Home Minister of a state should also be provided

with the same shield. (Arrest Warrant Case para. 51). Also, the rationale for the immunity

means that it applies whether or not the act in question was done at a time when the official

was in office or before entry to office.32 And Since, at the stage of proceedings during which

immunity is raised it will not yet have been established that the state has acted illegally. Indeed,

it may turn out that the allegations made against the state or official are unfounded. It would

therefore be wrong to assert that the state, by acting in a grossly illegal manner, has deprived

itself of the rights which it would otherwise be entitled to in international law and has implicitly

waived its immunity.33

E. BLUE WATER HAS THE JURISDICTION OVER ACTS COMMITED IN ITS

TERRITORY

The State of Blue Water [hereinafter “BW”] is obligated under international law to implement

its obligations in domestic law[a] and no other state can exercise jurisdiction over another[b]

by the virtue of the principle that no State is superior to another[c]. The principle of Non-

Intervention under customary international law is violated by UNSC Resolution.

a. State has the jurisdiction over the criminal acts committed in its territory

A State exercises jurisdiction in the field of criminal law on five bases: territory, protection,

nationality of offender (active personality), nationality of victim (passive personality) and

universality.34 Territory is the most common, if for no other reason than that it is the only form

of jurisdiction where the State can be sure of actually executing the process of its courts. In the

32
Arrest Warrant case, supra note 9, at paras 54–55
33
Immunities of State Officials, International Crimes, and Foreign Domestic Courts Dapo Akande Sangeeta Shah
European Journal of International Law, Volume 21, Issue 4, 1 November 2010, Pages 815–852,
34
United States v. Yunis, 681 F. Supp. 896, 900-901 (1988). Michael N. Schmitt & Leslien C. Green, The
Universality Principle and War Crimes, 71 International Law Studies 17, (1998).
Lotus case, Judge Moore indicated a presumption favouring the forum delicti commissi.35 One

of the earliest criminal law treaties, the Treaty of International Penal Law, signed at

Montevideo on 23 January 1889, stated that: `Crimes are tried by the Courts and punished by

the laws of the nation on whose territory they are perpetrated, whatever may be the nationality

of the actor, or of the injured.'36

Non-Intervention under customary international law [hereinafter “CIL”]37 imposes a duty on

states to refrain from intervening, directly or indirectly, in the internal and external affairs

within the domestic jurisdiction of any state.38 Domestic jurisdiction of a state is where state

is the sole judge, with sovereign authority to decide freely.39 The manner in which a

government treats its own nationals in its territory is within its domestic jurisdiction.40 Under

the Principle of Non-Intervention Green Desert should not interfere in the internal matter of

BW by asking BW to handover General Jupiter. Thus, in the Present Case the Courts of BW

have the sole authority to adjudicate upon the act of General Jupiter as accorded by

International Law. Article V of the Genocide Convention requires States to implement its

obligations in domestic law, specifically by providing for trial and punishment of those

responsible for the crime. After assessing the customs and conventions in international law it

is submitted that BW has the right to conduct trial for acts committed in its territory.

35
SS Lotus (France v. Turkey), PCIJ, Series A, No. 10, 70 (1927).
36
(1935) 29 AJIL, p. 638.
37
Nicaragua v. U.S., I.CJ.14, 202 (1986)
38
Convention of the Rights and Duties of States art. 8 1992 165 L.N.T.S. 19, [hereinafter ‘Montevideo’].
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in
Accordance with the Charter of the United Nations, G.A. Res. 2625(XXV), Supp. No. 28, G.A.O.R., U.N. Doc.
A/8082 (1970); Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the
Protection of their Independence and Sovereignty 1965, G.A. Res. 2131 (XX), G.A.O.R, 20th Sess., Supp. 14,
U.N. Doc. A/RES/20/2131 (1965) [hereinafter ‘Res. 2131]; Organization for Security and Co-operation in Europe,
Conference on Security and Co-operation in Europe, Final Act of Helsinki (Aug. 1, 1975)
39
Nicaragua, supra note 4, at 124 ; 1 L. OPPENHEIM, INTERNATIONAL LAW, 431(Jennings & Watts eds.,
9th edn, 1992) [hereinafter ‘OPPENHEIM’].
40
C.L. Rozakis, Territorial Integrity and Political Independence, in ENCYCLOPEDIA OF PUBLIC
INTERNATIONAL LAW, VOL. IV, 812-818 (R. Bernhardt ed., North-Holland, 2000) [hereinafter ‘Bernhardt’].
 b. The principle of Universal Jurisdiction is not applicable in the present case

because no genocide

Universal jurisdiction quasi delicta juris gentium applies to a limited number of crimes for

Universal jurisdiction quasi delicta juris gentium does not apply in the present case since the

act committed is not Genocide. The act committed in the territory of BW does not constitute

any of the acts which are recognised by CIL which come under the ambit of universal

jurisdiction and since Article 641 says that trial should be held by the courts of the territory

where the crime took place.

F. Principle Of Complementarity Violated By ICC

The principle of complementarily governs the exercise of the Court’s jurisdiction. This

distinguishes the Court in several significant ways from other known institutions. The Statute

recognizes that States have the first responsibility and right to prosecute international crimes.

Article 1 of the Rome Statute states that “the court be complementary to national criminal

jurisdictions.”
42
The ICC may only exercise jurisdiction where national legal systems fail to do so, including

where they purport to act but in reality, are unwilling or unable to genuinely carry out

proceedings43. The principle of complementarily is based both on respect for the primary

jurisdiction of States and on considerations of efficiency and effectiveness, since States will

generally have the best access to evidence and witnesses and the resources to carry out

proceedings.

41
Genocide Convention
42
L. Arbour and M. Bergsmo, “Conspicuous Absence of Jurisdictional Overreach”, in Hebel et al. (eds.),
Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos, TMC Asser Press 1999), at
129-140..
43
M. Bergsmo and J. Pejic, “The Prosecutor”, in Triffter (ed.) Commentary on the Rome Statute of the
International Criminal Court: Observer’s Notes, Article by Article, (Baden-Baden 1999).
Therefore, there is a clear violation of this principle as, there was no tribunal or council, and

issuance of an arrest warrant by PTC of ICC violated the principle of complementarity,

showing that resolution 5222 is a violation of several legal mechanisms44.

a. As per the Principle of Complementarity the states have the First responsibility and

right to prosecute international crimes

This distinguishes the Court in several significant ways from other known institutions,

including the international criminal tribunals for the former Yugoslavia and Rwanda (the

ICTY and the ICTR). The Statute recognizes that States have the first responsibility and right

to prosecute international crimes. The ICC may only exercise jurisdiction where national

legal systems fail to do so, including where they purport to act but in reality are unwilling or

unable to genuinely carry out proceedings.

However in the Case ICC issuing international arrest warrant against General Jack Jupiter

incumbent Home Minister of BW, is in violation of Principle of Complementarity because in

the present case BW had agreed to try General Jupiter; according to its according to its own

domestic legal framework.

i. One State cannot exercise its authority over another State – sovereign equality

Expressed by the maxim par in parem non habet imperium, one State cannot exercise its

authority over another State.45 In the words of Chief Justice Marshall in the us Supreme Court’s

decision in The Schooner Exchange v. McFaddon, which is widely considered as the first

judicial assessment of the doctrine of immunity, “[o]ne sovereign being is in no respect

44
B. Broomhall, “The International Criminal Court: A Checklist for National Implementation” in ICC Ratification
and National Implementing Legislation, Nouvelles Etudes Penales, (Eres 1999) at 113.
45
See Cassese, International Law, 98; Kelsen, International Law, 357–358; Crawford, Brownlie’s
Principles, 488; Verdross and Simma, Universelles Volkerrecht, 763; Lauterpacht, International
Law, 317; Aust, Handbook of International Law, 145; Wirth, “Immunities,” 430; Kalogeropoulou
v. Greece and Germany, App. No. 59021/00, 2002-x Eur. Ct. h.r. 421, 129 i.l.r. 537 at 546.
 amenable to another.”46 Kelsen say “A state manifests its legal existence only through acts

performed by human beings in their capacity as organs of the state, that is to say, through acts

of state”47 it means that act performed by General Jupiter is state act and not a personal act

committed for his benefit and he should not be held individually criminally responsible for a

state sovereign act and therefore the maxim of par in parem non habet imperium is applicable

in this case. Under act of state doctrine, the acts of a state, carried out within its own territory,

cannot be challenged in the courts of other states (not even if the acts are contrary to

international law, according to the most extreme version of the doctrine.48

j. Prosecutor’s investigation is illegal and without effect

Firstly, the Prosecutor of ICC initiated preliminary investigation into the Plutonian Massacre to

give effect to the resolution 5221 i.e., UNSC’s referral. The State of Blue Water has always by

the Prosecutor post an investigation, to which it didn’t even agree to in the first place.

The terms put forth by BW in order to conduct the domestic trial of General Jupiter are fair as

per principles of international law.

i. The trial of General Jupiter ought to be held at the end of his mandated time as

serving at his post

As per the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War

Crimes and Crimes against Humanity and by the 1974 European Convention on the Non-

Applicability of Statutory Limitations to Crimes against Humanity and War Crime49, the

Statute of Limitations may not apply to the crime of genocide as defined in the 1948

Genocide Convention.50. Therefore, conducting the trial of General Jack Jupiter after 6

46
The Schooner Exchange v. McFaddon, 11 u.s. 116 (1812) at 137.
47
48
Akehurst Pg 122
49
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity
50
1948 Convention on the Prevention and Punishment of the Crime of Genocide, Article 2
years, when the constitutionally mandated term has ended, should not be an issue. General

Jupiter’s trial should only be conducted after the end of the constitutionally mandated term

of 6 years; otherwise it will lead to further chaos and disorder within the unsettled

population, as he will be unable to perform his duties as the Home Minister.

ii. An in-camera trial does not violate principle of open justice

As per Article 14(1) of ICCPR, if a trial threatens the morals, public order or national

security of a country, then it may be conducted in a manner, which keeps it away from the

eyes of press and public. If GD or the ICC is permitted to conduct the trial of General

Jupiter, the case will be open to public scrutiny. Despite most of PV population being of

Dolo ethnicity, we as a State cannot neglect the other minorities. Thus, BW is trying to

emphasize on this need of an “in-camera trial” by a domestic tribunal. BW allowed access

of this trial only to 5 journalists to be nominated by the United Nations with the approval

of Blue Water, even though access of reports of an in-camera trial are not to be given to

anyone.

iii. Exception to Open Justice

Another situation where the principle of open justice can be bended is when the right to

privacy needs to be protected. In such cases, there shall be no interference by a public

authority with the exercise of this right except such as is in accordance with the law and is

necessary in a democracy.

BW asks for an in-camera trial by a domestic tribunal because it feels that if GD or ICC is

to conduct the trial, then the presence of the public and the press at the trial will result in

increased stress for the accused, the invasion of his privacy, and damage to his reputation,

which is detrimental not only to General Jupiter as an individual but also to BW as it will

hinder the administration of justice.