MOOT COURT MEMORIAL

PROSECUTER V/S

COLONEL…………………..…& PRIME MINISTER…………….….

Submitted by:

Imran Rashid Dar

Roll No. 33 LLB 4th Semester 2015

Teacher Incharge:

Gul Afroza Ma’m

HOD Nominee:

CONTENTS

Contents .............................................................................................................................................. 2

Prosecuter v/s Colonel………………………… & Prime Minister……………………..……. ................................. 3

Facts: ................................................................................................................................................... 3

Issues raised: ....................................................................................................................................... 6

Whether the charges against PM constitute a cognizable case against humanity. ........................... 7

What are crimes against Humanity? ............................................................................................... 7

Rome Statute of the International Criminal Court ........................................................................................ 9

Table of cases: ................................................................................................................................... 16

Bibliography: ..................................................................................................................................... 18

PROSECUTER V/S COLONEL………………………… & PRIME MINISTER……………………..…….

FACTS:

Nooba gained independence from 200 years old colonial rule in 1950’s

but this independence was marred by the partition of the country into

Nooba and Kimetan on the basis of religious demographics. The

partition led to a civil war between the two religious groups Hista and

Suta There was a complete breakdown of law and order. Many died in

riots. It was estimated that 12.5 million people were displaced and half

a million perished. Sutas lived in Nooba and Histas got Kimetan.

Due to violent nature of partition there have been conflicts and

tensions between the two countries ever since, especially because a

substantial minority of Suta lives in …………………. The northwest of

Nooba.

Since the partition Kimetan laid its claim on …………, as majority of

people in the area are Hista.

Since 1958, there has been unrest among Histas and Sutas some

favouring accession of …….….. to Kimataan, and some favouring

complete independence.

The government of Nooba was so occupied with wars with Kimataan,

that any democratic economic and social reforms in ……… took back

seat.

Histas complained about systematic discrimination and mistreatment

of Noobian authorities.

In 2006 Histas in ……... started to organise themselves in a rebel group,

favouring ………. accession to Kimataan, which called itself Hista

Liberation Front (HLF).

HLF launched a series of coordinated attacks against several major

Noobian cities with the object of carving out Histas controlled state in

northwest region of Nooba.

Thousands of people died during fighting between HLF and the

government.

Nooba accused the Kimataan government and army of supporting

and training HLF to fight in Sutas.

According to official figures released by ………….. authorities in March

2009, there were 3400 disappearance cases and 47000 people had

died in conflict.

In response to the violence, Nooba under the leadership of PM

………….. and Minister of Defence ……………… deployed 600000 army

personnel in …….. equipped with emergency powers, which allowed

the military to curtail civil liberties.

According to Hista people this lead to constant harassment of civilian

population.

A coalition of International Human Rights Organisations including

Human Rights Watch, International Federation for Human Rights and

the Amnesty International reported the use of heavy arms, explosives

and chemical weapons in populated areas with no discrimination

between civilian and army. The rebels are engaged in ethnic cleansing

by exterminating Sutas.

Nooba and Kimataan both are members of UN. Both are parties to

Geneva Convention in 1949, the convention on the prevention and

punishment of the crime of Genocide 1948 and the International

Convention on civil and political rights 1966 which prohibit the use of

certain weapons during hostilities.

Nooba is not a signatory to and thus not a party to Rome Statute of

International Criminal Court, 1998. Kimataan has been a state party

to ICC Statute since August 2000.

Following these accusations, on 29th November 2013, the UN Secuirity

council convened an emergency meeting. Acting under Chapter VII of

the UN Charter and Art. 13(b) of Rome Statute, the Council vide

resolution…………… referred the situation since 24th October 2009 to

the International Criminal Court (ICC) and urged all the states to

cooperate with the court, whether or not it was party to the Rome

Statute. Nooba refused to recognise the court’s jurisdiction.

On 15th January 2014, the prosecutor submitted to the pre-trial

chamber two applications for the arrest warrant for Colonel

………………. PM …………………….. pursuant to the Art. 58 of the Statute.

The prosecutor’s application was based on the following charges:

1. Crime against humanity under Art. 7(2) of ICC.

2. War crimes by intentionally directing an attack against a civilian

population Art. 8(2)(b)(l) of the statute, Wilful killing under Art.

8(2)(b)xiii.

3. Responsibility of the commander and other superior of HLF and

their action under Art. 28 of Statute.

ISSUES RAISED:

1. Jurisdiction of the court.

2. Legality of the arrest of Colonel……………………. And PM

………………………

3. Whether the charges against PM constitute a cognizable case

against humanity.

4. Whether the customary International law doctrine of head of

State Immunity will apply or not.

WHETHER THE CHARGES AGAINST PM CONSTITUTE A COGNIZABLE CASE AGAINST HUMANITY.

What are crimes against Humanity?

Crimes against humanity are as old as humanity itself. However, it

is only in the last seven decades that the international legal

prohibition on crimes against humanity has emerged, and it is only

in the last fifteen years that the precise contours of the crime have

been clarified.

A crime against humanity involves the commission of certain

inhumane acts, such as murder, torture, rape, sexual slavery,

persecution and other inhumane acts, in a certain context: they

must be part of a widespread or systematic attack directed against

a civilian population. It is this context that elevates crimes that

might otherwise fall exclusively under national jurisdiction to

crimes of concern to the international community as a whole. An

individual may be liable for crimes against humanity if he or she

commits one or more inhumane acts within that broader context.

It is not required that the individual be a ringleader or architect of

the broader campaign.

The most significant early reference to ‘crimes against humanity’ as

a legal concept was a joint declaration by France, Great Britain and

Russia in 1915. Responding to the massacre of Armenians by

Turkey, the joint declaration denounced ‘crimes against humanity

and

civilization’ and warned of personal accountability. After the First

World War, an international war crimes commission recommended

the creation of an international tribunal to try not only war crimes

but also ‘violations of the laws of humanity’. However, the US

representative objected to the references to the laws of humanity

on the grounds that these were not yet precise enough for criminal

law, and the concept was not pursued at that time.

In the wake of the events of the Second World War, the drafters of

The Nuremberg Charter were confronted with the question of how

to respond to the Holocaust and the massive crimes committed by

the Nazi regime. The classic definition of war crimes did not include

crimes committed by a government against its own citizens. The

drafters therefore included ‘crimes against humanity’, defined in

Article 6(c) as:

murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious

grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the law

of the country where perpetrated.

The important feature is the reference to ‘any’ civilian population

meant that even crimes committed against a country’s own

population were included. This was a major advancement, given

that at that time, prior to the advent of the human rights

movement, international law generally regulated conduct between

States and said little about a government’s treatment of its own

citizens.

The Tokyo Charter under Art. 5(c) included a similar definition with

some modifications. The Allied Control Council, creating law for

occupied Germany, adopted Law No. 10 with a similar definition,

except that it added rape, imprisonment and torture to the list of

inhumane acts, and did not require a connection to war crimes or

aggression.

The concept of crimes against humanity was promptly endorsed by

the UN General Assembly, but in the decades that followed there

was only a limited body of national cases as well as a few treaties

and instruments recognizing enforced disappearance and

apartheid as crimes against humanity. The International Law

Commission also developed several drafts of an international code

of crimes.

The ICC Statute contains the same list of acts but adds forced

transfer of population, sexual slavery, enforced prostitution, forced

pregnancy, enforced sterilization, sexual violence, enforced

disappearance and the crime of apartheid. The ICC Statute rejects

both the armed conflict requirement and the requirement of

discriminatory grounds. The contextual threshold in Article 7 of the

ICC Statute is ‘when committed as part of a widespread or

systematic attack directed against any civilian population’.

Rome Statute of the International Criminal Court Article 7: Crimes against humanity

1. For the purpose of this Statute, "crime against humanity" means

any of the following acts when committed as part of a widespread

or systematic attack directed against any civilian population, with

knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in

violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy,

enforced sterilization, or any other form of sexual violence of

comparable gravity;

(h) Persecution against any identifiable group or collectivity on

political, racial, national, ethnic, cultural, religious, gender as

defined in paragraph 3, or other grounds that are universally

recognized as impermissible under international law, in connection

with any act referred to in this paragraph or any crime within the

jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing

great suffering, or serious injury to body or to mental or physical

health.

2. For the purpose of paragraph 1:

(a) "Attack directed against any civilian population" means a

course of conduct involving the multiple commission of acts

referred to in paragraph 1 against any civilian population, pursuant

to or in furtherance of a State or organizational policy to commit

such attack;

(b) "Extermination" includes the intentional infliction of conditions

of life, inter alia the deprivation of access to food and medicine,

calculated to bring about the destruction of part of a population;

(c) "Enslavement" means the exercise of any or all of the powers

attaching to the right of ownership over a person and includes the

exercise of such power in the course of trafficking in persons, in

particular women and children;

(d) "Deportation or forcible transfer of population" means forced

displacement of the persons concerned by expulsion or other

coercive acts from the area in which they are lawfully present,

without grounds permitted under international law;

(e) "Torture" means the intentional infliction of severe pain or

suffering, whether physical or mental, upon a person in the

custody or under the control of the accused; except that torture

shall not include pain or suffering arising only from, inherent in or

incidental to, lawful sanctions;

(f) "Forced pregnancy" means the unlawful confinement of a

woman forcibly made pregnant, with the intent of affecting the

ethnic composition of any population or carrying out other grave

violations of international law. This definition shall not in any way

be interpreted as affecting national laws relating to pregnancy;

(g) "Persecution" means the intentional and severe deprivation of

fundamental rights contrary to international law by reason of the

identity of the group or collectivity;

(h) "The crime of apartheid" means inhumane acts of a character

similar to those referred to in paragraph 1, committed in the

context of an institutionalized regime of systematic oppression and

domination by one racial group over any other racial group or

groups and committed with the intention of maintaining that

regime;

(i) "Enforced disappearance of persons" means the arrest,

detention or abduction of persons by, or with the authorization,

support or acquiescence of, a State or a political organization,

followed by a refusal to acknowledge that deprivation of freedom

or to give information on the fate or whereabouts of those

persons, with the intention of removing them from the protection

of the law for a prolonged period of time.

3. For the purpose of this Statute, it is understood that the term

"gender" refers to the two sexes, male and female, within the

context of society. The term "gender" does not indicate any

meaning different from the above.

This was the historical genesis of the concept of “Crimes against

humanity”, now instead of discussing the essentials of it, we will

discuss what is not required to prove “crime against humanity”.

1. No nexus to armed conflict:

The Nuremberg and Tokyo Charters both required a connection to war

crimes or to aggression, in effect requiring some nexus to armed

conflict. On the other hand, Allied Control Council Law No. 10 did not

include such a requirement. Subsequent case law of military tribunals

split over whether such a nexus must be read in to the definition, or

was not required. For example, the Flick 1 and Weizsäcker 2 cases

imported the requirement from the Nuremberg Charter, whereas the

Ohlendorf 3 and Altstötter 4 decisions concluded that it was

unnecessary. Subsequent international conventions5 indicated that a

nexus to armed conflict was not required. Finally, after extensive

debates at the 1998 Rome Conference, agreement was reached on a

definition of crimes against humanity rejecting any such requirement

(Article 7).

2. No requirement of discriminatory animus:

The ICTY Appeals Chamber in Tadic´ case6 ruled that discrimination is

not a requirement. The ICC Statute, adopted in 1998, rejected a

discrimination requirement. It appears reasonably well settled today

that discriminatory animus is not a requirement, and it has not been

included in subsequent instruments (Sierra Leone, Iraq). The ICTR

Appeals Chamber has held that the restriction in the ICTR Statute

relates only to the Tribunal, and also that the requirement relates to

the attack as a whole; thus discriminatory intent of the perpetrator is

not required.7

3. Widespread or systematic attack:

1 United States v. Flick IX LRTWC 1 2 United States v. Weizsäcker, (the ‘Ministries Trial’) 14TWC 1. 3 United States v. Ohlendorf et al. 4 TWC 411 4 United States v. Altstötter et al. (the ‘Justice Trial’) VI LRTWC 1 5 Including the Genocide Convention, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity 1968, the Apartheid Convention 1973 and the Inter-American Convention on Enforced Disappearance 1994. 6 Tadic´ ICTY T. Ch. II 7.5.1997 para. 652; Tadic´ ICTY A. Ch. 15.7.1999 paras. 282–305. 7 Akayesu ICTR A. Ch. I 1.6.2001 paras. 461–9.

The widespread or systematic test is disjunctive. 8 The term

‘widespread’ has been defined in various ways, and generally

connotes the ‘large-scale nature of the attack and the number of

victims’.9 No numerical limit has been set; the issue must be decided

on the facts. While ‘widespread’ typically refers to the cumulative

effect of numerous inhumane acts, it could also be satisfied by a

singular massive act of extraordinary magnitude.10

The term ‘systematic’ has also been defined in various ways. Early

decisions set high thresholds: in Akayesu, it was defined as (1)

thoroughly organized, (2) following a regular pattern, (3) on the basis

of a common policy and (4) involving substantial public or private

resources. In Blaškic´, it was defined as requiring (1) a plan or

objective, (2) large-scale or continuous commission of linked crimes,

(3) significant resources, and (4) implication of high-level authorities.

It is understandable to pose a significant threshold, especially given

that non-widespread crimes should not lightly be labelled as a crime

against humanity, but these definitions may set the bar too high.36

Other cases refer more simply to ‘pattern or methodical plan’,

‘organized nature of the acts’ or ‘organized pattern of conduct’.11 The

most recent cases seem to be settling on ‘the organized nature of the

acts of violence and the improbability of their random occurrence’.12

8 Akayesu ICTR T. Ch. I 2.9.1998 para. 579. 9 Tadic´ ICTY T. Ch. II 7.5.1997 para. 206, Kunarac ICTY T. Ch. II 22.2.2001 para. 428; Nahimana, ICTR A. Ch. 28.11.2007 para. 920; Situation in Darfur (Al Bashir arrest warrant case) ICC PTC-I, 4.3.2009 para. 81. 10 Kordic´ ICTY T. Ch. 26.2.2001 para. 176; Blaškic´ ICTY T. Ch. I 3.3.2000 para. 206; ILC Draft Code, pp. 94–5. 11 Tadic´ ICTY T Ch. II 7.5.1997 para. 648; Kunarac ICTY T. Ch. II 22.2.2001 para. 429; Ntakirutimana ICTR T. Ch. I 21.2.2003 para. 804. 12 See, e.g. Nahimana, ICTR A. Ch. 28.11.2007 para. 920; Al Bashir arrest warrant case ICC PTC-I, 4.4.2009 para. 81. As will be suggested below, improbability of random occurrence arguably should not only be an aspect of the disjunctive ‘systematic’ test, it should already be inherent in the concept of an ‘attack’; otherwise widespread but random crime would constitute a crime against humanity.

Consistent with the ordinary meaning of the term, it may be that the

hallmark of ‘systematic’ is the high degree of organization, and that

features such as patterns, continuous commission, use of resources,

planning, and political objectives are important factors.

4. Attack:

The term ‘attack’ is not used in the same sense as in the law of war

crimes. An ‘attack’ need not involve the use of armed force, and can

encompass mistreatment of the civilian population. It refers to the

broader course of conduct, involving prohibited acts, of which the acts

of the accused form part.

The ICC Statute and Tribunal jurisprudence indicate there must at

least be multiple acts or multiple victims in order to warrant the label

‘attack directed against a civilian population’.13 These acts may be all

of the same type or of different types, for example murder, rape and

deportation. This requirement of ‘multiple acts’ does not mean that

‘widespread’ is a requirement in all cases. Both terms measure scale,

but ‘multiple’ is a low threshold and ‘widespread’ is a high threshold.

From the above discussion it can easily be deduced that the situation

in our case clearly falls within “crimes against humanity”.

13 Art. 7(2)(a) of the ICC Statute; Tadic´ ICTY T. Ch. 7.5.1997 para. 644; Akayesu ICTR T. Ch. I 2.9.1998 para. 205.

PRAYERS:

In light of the questions presented, arguments advanced and

authorities cited the agent for the Applicant State most

humbly and respectfully prays before this Hon’ble Court, that

it may be pleased to adjudge and declare:

1. That the acts of the respondent state amount to gross

violation of fundamental human rights.

2. That the respondent state has violated the basic and

fundamental norms of International community.

3. That the Respondent State has been guilty of “crimes

against humanity” and should be punished for it.

The Applicant State additionally prays that the Court may

grant any provisional relief that it may deem fit. The Court may

also make any such order as it may deem fit in terms of equity,

justice and due conscience.

And for this act of kindness the Respondent State shall as duty

bound ever humbly pray.

Respectfully submitted,

..….……...…………………………

TABLE OF CASES:

1. United States v. Flick IX LRTWC 1.

2. United States v. Weizsäcker, (the ‘Ministries Trial’) 14TWC 1.

3. United States v. Ohlendorf et al. 4 TWC 411.

4. United States v. Altstötter et al. (the ‘Justice Trial’) VI LRTWC 1.

5. Tadic´ ICTY T. Ch. II 7.5.1997.

6. Akayesu ICTR A. Ch. I 1.6.2001.

7. Kunarac ICTY T. Ch. II 22.2.2001.

8. Nahimana, ICTR A. Ch. 28.11.2007

9. Situation in Darfur (Al Bashir arrest warrant case) ICC PTC-I,

4.3.2009.

10. Kordic´ ICTY T. Ch. 26.2.2001.

11. Blaškic´ ICTY T. Ch. I 3.3.2000.

12. Ntakirutimana ICTR T. Ch. I 21.2.2003.

13. Nahimana, ICTR A. Ch. 28.11.2007.

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