prosecution final

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STATEMENT OF JURISDICTION

Owing to the mandate of article 13(b) of the Rome Statute of the International Criminal

Court, this Hon’ble Court may exercise its jurisdiction in accordance with the provisions of

this Statute and try the accused persons jointly.

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TABLE OF CONTENTS

1) LIST OF ABBREVIATIONS ..................................................3

2) INDEX OF AUTHORITIES ……………………………………..4

3) STATEMENT OF FACTS ………………………………………..5

4) ISSUES …………………………………………………………………10

5) SUMMARY OF ARGUMENTS ………………………………...11

6) WRITTEN ARGUMENTS ……………………………………….13

7) PRAYER ……………………………………………………………….25

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1) LIST OF ABBREVIATIONS

1) ICC- International Criminal Court under the Rome Statute

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2) INDEX OF AUTHORITIES

Cases

1) Prosecutor v. Tadic, T-94-1-A, Judgement, 15/07/1999

2) Prosecutor v. Blaskic, IT-95-14, Judgement, 03/03/2000, paras. 75, 76 and 94

3) The Prosecutor v. Ivica Rajic, IT-95-12-R61, 108 ILR 141 at 162, para. 48.

4) The Prosecutor v. Milan Martic, IT-95-11-R61,108 ILR 39 at 435) CTR-95-1A-T 07/06/2001 para. 63.)

6) Case No. ICTR-97-1-T 21/05/1999 paras.93, 527.

7) Akayesu, ICTR T.Ch. I, 02.09.1998 para. 557

Articles, Reports

1) No. 7 of the Preamble of the ‘Convention on the prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction’ of 1993

2) From Victims’ Participation in the Investigations of the International Criminal

Court Susana SáCouto and Katherine Cleary* (Susana SáCouto is the Director

and Katherine Cleary is the Assistant Director of the War Crimes Research

Office, American University Washington College of Law)

3) The ICC, Bashir, and the Immunity of Heads of State - By Anthony Dworkin

and Katherine Iliopoulos

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3) STATEMENT OF FACTS

1. Nooba gained independence in 1950’s from a 200 years long colonial rule. The country

was portioned on the basis of religious demographics. This partition led to a short but bloody

civil war between two religious groups, i.e. Dijé and Hist. The country that seceded from

Nooba was Kimatan, bordering the northwest part of Nooba. After the huge migration during

and after the partition, Nooba had 81% Dijé, 14% Hist and 5% others, and Kimatan had 98%

Hist and 1% Dijé and 1% others.

2. A substantial minority of Hists lived in Sutasat, the northwest of Nooba. After the

partition, Kimatan laid its claims on Sutas, as majority of people in the area were Hists.

Nooba and Kimatan fought four wars over Sutas, i.e. in years 1957, 1965, 1971 and 1999.

3. Some Hists of Sutas, favoured accession of Sutas to Kimataan, and some favoured

complete independence. The dispute between the Government of Nooba and local Hists over

greater autonomy gained momentum in 1988.

CHRONOLOGY OF EVENTS:

1998:

In 1998, an internal conflict arose between Hists in Sutas and the Government of Nooba over

local elections. They complained about systematic discrimination and mistreatment by

Noobian authorities. In 1999, a series of demonstrations, strikes and attacks on the

Government of Nooba began.

2000:

Under the leadership of Luke Skittle, the Hists in Sutas organized a rebel group, which

favouredSutas accession to Kimatan, which called itself the Hist Liberation Front (HLF).

HLF launched a series of coordinated attacks against several major Noobian cities.

2003:

The conflict escalated. Nooba accused the Kimatan Government and Army of supporting and

training HLF to fight in Sutas.

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2009:

In October 2009, a general election took place in Nooba, in which the Dijé Peoples

Party ousted the Noobian Nationalist Party. On 24 October 2009, the new Prime

Minister of Nooba, Lama Suki of Dijé Peoples Party, in his victory speech to the

nation called upon the Dijé people to join hands to get rid of Hists from the country.

As a result, the tension between the two countries, Nooba and Kimatan increased.

The Kimatan Government and Hist religious groups in Kamatan condemned Lama

Suki’s victory speech. The Kimatan army increased its activities around the border

under the command of Colonel Jingo Crackle, protector of Luke Skittle.

2010:

On 25 February 2010, a series of explosions took place throughout Sutas, each of

which targeted a police station, security installations manned by Noobian officers and

Dijé residential areas. HLF claimed responsibility for the bombings. Hundreds of Dijé

women were raped by HLF rebels. Tens of thousands of SutasDijés emigrated as a

result of violence.

The Prime Minister and Minister of Defence of Nooba, Lama Suki, deployed 600,000

army personnel in Sutas equipped with emergency powers. According to Hist people,

this led to constant harassment of the civilian population. The army personnel arrested

ten young civilians of the Hist religion under the suspicion of their involvement in

exploding bombs at one of the security posts in Sutas. The detainees were humiliated,

their hands and legs were tied, and they were kept in solitary confinement for endless

hours without food and water. The Amnesty International reported that the detainees

were choked to death using Chlorine and Chloropicrin.

A coalition of international human rights organisations including Human Rights

Watch, the International Federation for Human Rights, and the Amnesty International

reported the use of heavy arms, explosive and chemical weapons in populated areas

with no discrimination between civilians and army. The rebels are engaged in ethnic

cleansing by exterminating Sutas Dijés. Various reports claim that the Nooba troops

have been engaged in widespread humanitarian abuses and have engaged in

extrajudicial killings. The International Commission of Jurist reported that a Nooba

Army Unit is alleged to have forcefully entered in the houses of Hists people and

raped 30 to 100 women aged between 13 and 70. The Government's inability to

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protect the people from both its own troops and the rebel forces led to the erosion of

support for the Government.

(Note : Nooba and Kimatan both are members of the United Nations. Both are parties

to the Geneva Conventions of 1949, the Convention on the Prevention and

Punishment of the Crime of Genocide, 1948, the International Convention on Civil

and Political Rights, 1966 and other International Humanitarian Law Conventions

which prohibit the use of certain weapons during the hostilities. Nooba is not a

signatory to and thus also not a state party to the Rome Statute of International

Criminal Court, 1998; Kimatan has been a state party to the ICC Statute since August

2000.)

2013:

On 29 November 2013 the United Nations Security Council convened an emergency

meeting. Acting under Chapter VII of the United Nations Charter and Article 13 (b) of Rome

Statute, the Council vide Resolution 2019 referred the situation since 24 October 2009 to the

International Criminal Court (ICC) and urged all states to co-operate with the Court, whether

or not it was party to the Rome Statute. Nooba refused to recognise the court’s jurisdiction.

2014:

On 15 January 2014, the Prosecutor submitted to the Pre-Trial Chamber two

applications for an arrest warrant for Colonel Jingo Crackle and Lama Suki pursuant

to Article 58 of the Statute. The Prosecutor’s application was based on the following

charges:

Charges against Colonel Jingo Crackle

Since 25 February 2010 in Sutas, Colonel Jingo Crackle with HLF jointly committed, as a

joint criminal enterprise, within the meaning of Article 25(3) (a) of the Statute:

1. “Crimes against Humanity” under Article 7(2) of the International Criminal Court Statute

(the Statute);

2. “war crimes” by intentionally directing an attack against a civilian population as such or

against individual civilians not taking direct part in hostilities under Article 8(2)(b)(i) of the

Statute; wilful killings under Article 8(2)(a)(i); destruction of property under Article 8(2)(b)

(xiii) and committing rape under Article 8 (2)(b)(xxii) of the Statute;

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3. “Responsibility of the Commander and other superiors” of HLF and their actions in Sutas

under Article 28 of the Statute.

Charges against Lama Suki

Lama Suki was charged with the following crimes:

1. On 24 October 2009 and on subsequent dates Lama Suki committed incitement to

genocide under Article 6 and Article 25 (3) (e) of the Statute;

2. “war crime” of inhuman treatment and unlawful confinement of ten young civilian of Hist

religion in Sutas under Article 8 (2) (a) (ii)& (vii) of the Statute;

International Criminal Law Moot Court Competition, 2014

3. “Responsibility of the Commander” and the actions of the Noobian army in Sutas against

civilian population under Article 28 of the Statute; directing use of prohibited weapons under

Article 8 (2) (b)(xx) of the International Criminal Court.

On 22 January 2014 the Pre-Trial Chamber issued arrest warrants for Colonel Jingo

Crackle and Lama Suki. It requested all other State parties to the Rome Statute to

cooperate within their jurisdiction in the arrest and surrender of Colonel Jingo Crackle

and Lama Suki.

On 1 February 2014, Lama Suki travelled to Zydan to participate in an annual summit

of group seven regional states. Although Zydan is a state party to the Rome Statute

since 2008, it did not arrest Lama Suki, taking the position that doing so would violate

his Head of State Immunity.

On 2 February 2014, Colonel Jingo Crackle visited Meran, a Hist majority country

and a non-state party to attend a multi religious conference. The conference venue

was on the border with Astram, a state party to Roman Statute. Colonel Jingo Crackle

remained in Meran territory, when he was approached by private security staff for a

security check. Understanding it to take place in Astram, he refused, and was thereby

forcibly removed, his name discovered on the ICC warrant when he was identified,

and taken into custody at Astram on 3 February 2014.

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On 4 February 2014, the accused claimed unlawful arrest and abduction to Astram in

a surrender hearing which the National Court and responsible Minister of Astram

rejected in light of Article 59 (4) of the Rome Statute.

The two cases have been brought by the Prosecutor before the Pre-Trial Chamber for

the confirmation of charges set out in the arrest warrant:

(i) The Prosecutor v. Colonel Jingo Crackle;

(ii) The Prosecutor vs. Lama Suki.

Prior to the confirmation hearing the Pre-Trial Chamber received 84 applications from

the residents of Sutas, nationals of Nooba claiming excessive atrocities from HLF. All

victims have been granted the right to participate in the confirmation hearing. The

victims under protection are referred to as nos. W01-W84.

4) ISSUES

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Prosecution vs Colonel Jingo Crackle

1) THE COURT HAS JURISDICTION TO TRY COLONEL JINGO CRACKLE AND THE

CHARGES ARE JUSTIFIED

2) THE ARREST WAS LEGAL

3) VICTIMS HAVE ANNOUNCED INTENTION TO PARTICIPATE IN THE

PROCEEDING AND GIVE ADDITIONAL EVIDENCE

Prosecution vs Lama Suki

1) THE CHARGES AGAINST LAMA SUKI CONSTITUTE A COGNIZABLE

CASE AGAINST HUMANITY UNDER THE STATUTE.

2) DOCTRINE OF HEAD OF STATE DOES NOT GRANT TOTAL

IMMUNITY

5) SUMMARY OF ARGUMENTS

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1) THE COURT HAS JURISDICTION TO TRY COLONEL JINGO CRACKLE AND

THE CHARGES ARE JUSTIFIED

It is stated that Kimatan carried out its activities on the border under the

leadership of Colonel Jingo Crackle. It is alleged that Colonel Jingo Crackle

was a protector of Luke Skittle who was the head of the HLF. Thus Jingo

Crackle had knowledge about the atrocities committed in Sutas by the HLF

and thus he was also criminally responsible for the same.

2) THE ARREST WAS LEGAL

the arrest was legal as the country that arrested Colonel Jingo Crackle was a

state part to the Roman ICC Statute and Colonel was on the soil of that

country. Furthermore there was an arrest warrant issued for Colonel Jingo

Crackle.



As victims suffered the damages and losses firsthand, the court would be in a

better condition to estimate the amount of loss and pain that was caused to

the victims. And proper justice would be done.


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1) THE CHARGES AGAINST LAMA SUKI CONSTITUTE A

COGNIZABLE CASE AGAINST HUMANITY UNDER THE

STATUTE.

Lama Suki was the head of the state. He was the Prime Minister and also the

Minister of Defense. He had the power, authority and responsibility to control

the operations of the military and also have a check on the abuse of the power

that is given to them. He was totally unsuccessful in carrying out the same .

2) DOCTRINE OF HEAD OF STATE DOES NOT GRANT TOTAL

IMMUNITY

The Doctrine of head of State does not grant total immunity. There are certain

crimes for which a person may be tried by the ICC even though he may be the

sitting head of state.

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6) WRITTEN ARGUMENTS


1) THE COURT HAS JURISDICTION TO TRY COLONEL JINGO CRACKLE

AND THE CHARGES ARE JUSTIFIED

a) Colonel Jingo Crackle was from Kimatan. Kimatan has been a state party to the

ICC Rome Statute since August 2000. Arrest warrant was issued by the court for

the arrest of Colonel Jingo Crackle as on 22nd January 2014. As Kimatan being a

state party to the ICC Roman statute, by Article 59(1) of the Rome ICC Statute, an

arrest or surrender must be done as per the laws . Therefore, Kimatan was liable to

arrest and surrender Colonel Jingo crackle in the first place as soon as warrants

were out.

The court had jurisdiction over Colonel Jingo Crackle because Kimatan itself had

accepted this jurisdiction. As the state was a pro Roman ICC statute state, the

jurisdiction applied in the same and thus arrest being taken place at any point of

time would be proper and lawful and would not give rise to any cause of action. In

the given scenario, we can see that Colonel Jingo Crackle was carried to Astram

by a private security agency. It is said that he was carried forcibly. We should

keep in mind is that though there might be a possibility of abduction and unlawful

transfer of Colonel Jingo Crackle to Astram, this does not bring doubt over the

nature of the charges or the progress of the proceeding of the ICC. We infer this

because of the liability of the sate of Kimatan to handover Colonel Jingo Crackle.

Even in the present scenario, the arrest of Colonel by the Astram authorities is

totally justified under article 59(4) of the Roman Statute.

b) The problem is an international one and therefore interference of ICC is justified

The Appeals Chamber of the ICTY in Tadic categorically noted that an internal armed

conflict becomes an international one, where “another State intervenes in that conflict

through its troops.” (Prosecutor v. Tadic, T-94-1-A, Judgement, 15/07/1999, para. 84.)

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1.The Appeals Chamber of the ICTY in Tadic, noted that control by a State over subordinate

armed forces, militias or paramilitary units can render the latter to be regarded a de facto

organ of the State (Prosecutor v. Tadic, T-94-1-A, Judgement, 15/07/1999, para. 137.)

However, the State need not issue specific orders or directions to each individual operation.

(Prosecutor v. Tadic, T-94-1-A, Judgement, 15/07/1999, para. 137.)

1. A Trial Chamber of the ICTY in Blaskic, seized on a range of factors to find ample proof

to characterize the conflict as international based on Croatia’s direct intervention in

Bosnia-Herzegovina. ( Prosecutor v. Blaskic, IT-95-14, Judgement, 03/03/2000, paras.

75, 76 and 94)

2. Thus we can say that as there was an involvement on part of kimatan into Nooba by way

of alleged help to HLF and also an alleged weapon flow across the border, this becomes a

matter of international interest and thus the interference of the ICC is justified.

c) The charges against Colonel Jingo Crackle are justified

Kimatan and Nooba have a long history of political unrest, wars and skirmishes

over the subject of Sutas. It has led to major loss of life and property and both the

countries have paid dearly for it. There have been previous allegations that the

Kimatan government and Army were supporting the HLF (Hist Liberation Front)

to fight in Sutas.

Due to the victory Speech of Lama Suki which was condemned by Kimatan

government and Hist religious groups, the Kimatan Army increased its activities

around the border under the command of Colonel Jingo Crackle. Colonel Jingo

Crackle was also known as the protector of Luke Skittle who was the head of the

HLF.

Thus there was a strong link between Colonel Jango Crackle and Luke Skittle. It

was by the help and under the guidance of Colonel Jingo Crackle that the HLF

had survived and was well equipped to combat with the Nooba army forces.

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This was the after effect of the victory speech of Lama Suki , in which he invited

all Dije people to come together and join hands and get rid of the Hists.

Colonel Jingo Charlie has been charged under Article 25(3)(a) which has held him

responsible for all the crimes and atrocities committed by Luke Skittle as he was

working under the supervision and guidance of Colonel Jingo Crackle.

A JOINT CRIMINAL ENTERPRISE EXISTED BETWEEN colonel Jingo Crackle

and Luke Skittle

3. By virtue of article 25(3)(a) of the Rome Statute, a person incurs criminal responsibility

and becomes liable for punishment if he inter alia commits a crime jointly with another,

regardless of whether the latter is criminally responsible.

The Appeals Chamber of the ICTY in Tadic determined that there was customary basis for

joint responsibility in the first category of co-perpetration, where all participants in the

common design possess the same criminal intent to commit a crime and one or more of them

actually perpetrate the crime with intent and the second category of co-perpetration where

crimes are committed by members of the group outside its common purpose but as a

foreseeable incident of it. (Tadic ICTY A.Ch. 15/07/1999, para. 220; Gacumbitsi ICTR A.

Ch. 7.7.2006, Separate Opinion of Judge Shahabuddeen, para. 40.)

4.

The actus reus is common to incur such responsibilities and it consists of a plurality of

persons; the existence of a common plan, design or purpose which amounts to or involves the

commission of an international crime and participation of the accused in such a common

design. (Tadic ICTY A.Ch. 15/07/1999, para. 227.)

The mens rea to incur the first category of responsibility is the intent to perpetrate a certain

crime (this being the shared intent on the part of all co-perpetrators). (Tadic ICTY A.Ch.

15/07/1999, para. 228.)

The mens rea to incur the second category of responsibility is the intention to participate in

and further the criminal activity or the criminal purpose of a group and to contribute to the

joint criminal enterprise or in any event to the commission of a crime by the group. In

addition, responsibility of a crime other than the one agreed upon in the common plan arises

only if, under the circumstances of the case, it was foreseeable that such crime might be

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perpetrated by one or other members of the group and the accused willingly took that risk.

( Tadic ICTY A.Ch. 15/07/1999, para. 228.)

5. There existed a joint criminal enterprise between Colonel Jingo Crackle and Luke Skittle.

This itself justifies all charges against Colonel Jingo Crackle as he was the one that

encouraged and alleged provide the resources to HLF in oreder to create unrest and

violence in the country.

Charge for Crimes against Humanity

Colonel Jingo Crackle is also liable to be found guilty of “Crimes against

humanity” under Article 7(2), which consists of attack, which are intentional and

directed to kill the civilian population. Bombs were planted targeting police

station, security posts manned by Nooban officers and Dije residential areas.

Though HLF claimed responsibility, the guidance from Colonel Jango Crackle

could not be doubted.

Charge for War Crimes

“War crimes” as under Article 8(b) describes various situations in which due to

the atrocities committed by HLF for which the person held responsible is Colonel

Jingo Crackle.

. THE ACCUSED PERSONS ARE GUILTY OF WAR CRIMES UNDER ARTICLE

8(2)(b)(i), 8(2)(a)(i), 8(2)(b)(iv), 8(2)(b)(xiii), 8(2)(b)(xxii) AND 8(2)(b)(xx) OF THE

ROME STATUTE.

6. The co-perpetrators are guilty of the war crimes under the articles of the Rome Statute

mentioned above by way of committing the crime through another person

A Trial Chamber of the ICTY in a proceeding under rule 61 of the ICTY Rules of Procedure

confirmed the indictment in Martic ( ICTY, Review of the Indictment, The Prosecutor v.

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Milan Martic, IT-95-11-R61,108 ILR 39 at 43.) and ruled that the prohibition on attacking

civilians was clearly stated in articles 51(2) and 85(3)(a) of Additional Protocol I [hereinafter

AP I] in relation to an international armed conflict. (ICTY, Review of the Indictment, The

Prosecutor v. Milan Martic, IT-95-11-R61, 108 ILR 39 para. 8 at 44; The Prosecutor v.

Ivica Rajic, IT-95-12-R61, 108 ILR 141 at 162, para. 48.

)

In the context of the prohibition on the attack on civilians; even if an attack is directed against

a legitimate military target, the choice of weapon and its use are clearly delimited by the rules

of international humanitarian law. ( ICTY, Review of the Indictment, The Prosecutor v.

Milan Martic, IT-95-11-R61,108 ILR 39 at 47, para. 18.)

It is an integral part of customary international law that reprisals against the civilian

population as such, or against individual civilians are prohibited in all circumstances, even

when confronted by wrongful behaviour of the other party and it must be respected in all

armed conflicts. (ICTY, Review of the Indictment, The Prosecutor v. Milan Martic, IT-95-

11-R61,108 ILR 39 at 47.)

7. The attack on Dije residential areas in Sutas was wholly unjustified. Therefore, the co-

perpetrators are guilty of the war crime under article 8(2)(b)(i) of the Rome Statute.

Article 8(2)(b)(xviii) of the Rome Statute is based on the Geneva Protocol of 17/07/1925.

The Geneva Protocol is interpreted as containing the general prohibition of all forms of

chemical warfare. (M. Bothe, Das volkerrechtliche Verbot des Einsatzes chemischer und

biologischer Waffen (Koln, Bonn 1973) 86, 49.) As per the reports chemical weapons and

explosives were used not only in military but also in the civil areas thus leading to breach of

the iCC Roman Statute.

The ‘Convention on the prohibition of the Development, Production, Stockpiling and Use of

Chemical Weapons and on their Destruction’ of 1993 expressly recognises the prohibition of

the use of herbicides as a method of warfare. (No. 7 of the Preamble of the ‘Convention on

the prohibition of the Development, Production, Stockpiling and Use of Chemical

Weapons and on their Destruction’ of 1993.)

8. Therefore, the co-perpetrators are guilty of the war crime under article 8(2)(b)(xviii) of

the Rome Statute.

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9. Owing to the mandate of article 28(a) of the Rome Statute, Colonel Jingo Crackle incurs

criminal responsibility for all the crimes committed by Luke Skittle as he was under the

effective control and authority of Colonel Jingo Crackle.

2 ) THE ARREST WAS LEGAL

The arrest was totally legal as it took place in Astram. Though Colonel Jango Crackle

was forcefully carried till Astram and then arrested, it was not the Astram authorities

that were involved in this act and thus they are not responsible. Arrest took place due

to the arrest warrants those were issued in the name of the accused. Kimatan being a

party to the Rome Statue should have had to give up the colonel.

We should also take into account that the people carrying the colonel to Astram was a

private security agency, any damage that is to be sought and any suit for the same

does not come under the jurisdiction of the ICC Roman statute.



The protection of victims and their participation in the court proceedings will take

place as per procedure under Article 68 of the ICC Roman Statute.

ICC Victims’ Participation Scheme Motivated by Desire to Achieve Restorative Justice

The unprecedented provisions of the Rome Statute governing victims’ participation before

the International Criminal Court are largely a product of a much broader movement in recent

decades towards the achievement of restorative justice.9 Generally speaking, restorative

justice theory holds that justice should not only address traditional retributive justice, i.e.,

punishment of the guilty, but should also provide a measure of restorative justice by, inter

alia, allowing victims to participate in the proceedings and by providing compensation to

victims for their injuries.” While the concept of victims’ “participation” is not easily defined,

it has been described broadly as victims “having a say, being listened to, or being treated with

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dignity and respect.” Advocates of victims’ participation in criminal justice mechanisms

believe that participation has a number of potential restorative benefits, including the

promotion of victims’ “healing and rehabilitation,” through a “sense of empowerment and

closure” that is said to accompany victims’ participation. Additionally, some supporters of

victims’ participation claim that the participation of victims may assist courts “in making a

contribution to the reconciliation of a community or nation more generally.” Finally, groups

that supported a right of victims’ participation before the ICC argued that victims’

involvement will bring the Court’s proceedings “closer to the persons who have suffered

atrocities” and increase the likelihood that those most affected by criminal acts will be

satisfied that justice has been done.

From Victims’ Participation in the Investigations of the International Criminal Court

Susana SáCouto and Katherine Cleary*

(Susana SáCouto is the Director and Katherine Cleary is the Assistant Director of the

War Crimes Research Office, American University Washington College of Law)

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1) THE CHARGES AGAINST LAMA SUKI CONSTITUTE A COGNIZABLE

CASE AGAINST HUMANITY UNDER THE STATUTE.

Lama Suki was the one to incite genocide through his victory speech. The statements

made by Lama Suki were contrary to the constitution of Nooba and it did disturb the

harmony within the state which gave rise to grave after-effects. He in his victory

speech criticized the previous government on its way to deal only HLF is done. He

also called upon the Dje religious people to join hand against the Hists.

Under Article 6 and also under Article 25(3)(e) Lama Suki was liable for genocide, as

the rebellion was based on religious groups, Lama Suki and his troops targeted the

Hists and thus gave rise to genocide.

LAMA SUKI IS GUILTY OF THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO COMMIT

GENOCIDE.

The statements made by Lama Suki triggered HLF thus being the cause of action to the chain

of events that occurred post his victory speech

1) The calling by lama Suki to all the Dje people to join hands against the Hist led to

a situation of unrest in the country. This was a hate speech as Lama Suki

mentioned that the Dje should come together and get rid of the Hists.

2) A Trial Chamber of the ICTR in Prosecutor v. Bagilishema, noted that the intent of an

accused person should be determined above all, from his words and deeds and should

be evident from patterns of purposeful actions. (ICTR-95-1A-T 07/06/2001 para.

63.)

Thus in this case we can clearly see that the words gave out the intent and also it showed

that there was a feeling of hatred in the mind of Lama Suki for the Hists. Later on when

he ordered troops to stabilize the situation the troops started extra judicial killings and

they started ill treating the local Hist. This was due to the orders of Lama Suki. This

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3) A Trial Chamber of the ICTR in Prosecutor v. Kayishema and Ruzindana, held that

intent can be inferred either from words or deeds and may be demonstrated by a

pattern of purposeful action and the use of derogatory language towards members of

the target group can be a relevant indicator. (Case No. ICTR-97-1-T 21/05/1999

paras.93, 527.)

4) The use of such language while instructing the public throws light on the fact that

Lama Suki had the specific intent to commit the crime of genocide, which is further

strengthened by the fact that he led Nooban troops too Sutas and also gave them

special emergency powers which would help them exploit Hists thus leading to their

harassment and termination.

5) A Trial Chamber of the ICTY in Akayesu observed that the direct element of

incitement to commit genocide should be viewed in the light of its cultural and

linguistic content. (Akayesu, ICTR T.Ch. I, 02.09.1998 para. 557)

6) A Trial Chamber of the ICTR in Akayesu observed that the element of public

incitement requires communicating the call for criminal action to a number of

individuals in a pubic place or to members of the general public at large. (Akayesu,

ICTR T.Ch. I, 02/09/1998 para. 555)

The victory speech incident resembled the same thing.

GUILTY OF WAR CRIMES

Lama Suki was guilty of war crimes under article 8(2)(a)(ii)&(vii) which wa due to the

unlawful confinement of ten young civillians of Hist religion in Sutas. They were also

humiliated and given inhuman treatment. Though tere actions were carried by the military, he

was responsible for inciting the military by giving a public hate speech against the Hist and

also passing a message to get rid of the hist.

It can be safely inferred that the motivation of these actions of the military was derived from

the speech of Lama Suki. As a learder, he must be held responsible and prosecuted for the

same.

LAMA SUKI INCURS CRIMINAL RESPONSIBILITY BY VIRTUE OF ARTICLE 28(a) AND

28(b) RESPECTIVELY.

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Lama Suki was the prime Minister and the minster of defense of Nooba. The Nooban army

was under his effective command and control. As a result of his failure to exercise control

properly over them, they committed the said war crimes and crimes against humanity. He

either knew, or in the alternative ought to have known that the forces were committing such

crimes because of the victory speech that he delivered against the Hists. He took no necessary

or reasonable measures within his power to prevent or repress the atrocities of the Nooban

army. There was no investigation being done about the same.

Thus, Lama Suki incurs criminal responsibility for the act of the Nooban army. He had also

willfully or carelessly allowed the army to carry on with the atrocities and no action were

taken to condemn the crimes against humanity and war crimes that were being committed

during this period.

2) DOCTRINE OF HEAD OF STATE DOES NOT GRANT TOTAL IMMUNITY

The ICC, Bashir, and the Immunity of Heads of State - By Anthony Dworkin and

Katherine Iliopoulos

The International Criminal Court announced on March 4, 2009 that it was issuing an arrest

warrant against Sudanese President Omar al-Bashir for masterminding a campaign of crimes

against humanity and war crimes by government troops and Arab militias in the Darfur

region. The announcement, coming eight months after the Court’s prosecutor requested an

arrest warrant, marks the first time that the ICC has sought the arrest of a sitting head of state.

The Court decided not to proceed with the charges of genocide, ruling that there did not exist

reasonable grounds upon which a finding could be made that al-Bashir had the necessary

genocidal intent.

Following the announcement, al-Bashir suspended the operation of 13 aid organizations in

Sudan, saying they had cooperated with the ICC by supplying information. He later said that

he wanted all foreign aid organizations to leave within a year. The ICC’s announcement and

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the Sudanese response have generated much debate, but there has been comparatively little

discussion about how al-Bashir might be delivered to the Court.

The Arrest Warrant and the Personal Immunity of Incumbent Heads of State

Announcing its decision to issue an arrest warrant, the Court’s Pre-Trial Chamber I asked the

Court’s registrar to prepare a request for cooperation for President al-Bashir’s arrest and

transmit it to Sudan, to all States Parties to the Rome Statute, to all United Nations Security

Council members that are not party to the Statute, and to any other State as may be necessary.

The Registrar duly prepared communications to Sudan, the States Parties, and to those

members of the Security Council not party to the Statute. Presumably it is keeping open the

option of sending a communication to any other state if the need arises.

Welcoming the announcement, the Court’s Prosecutor Luis Moreno-Ocampo said that Sudan

was obliged under international law to execute the warrant of arrest on its territory, and that

“as soon as Omar al-Bashir travels through international air space, he can be arrested.”

However the question of al-Bashir’s arrest may be more complicated than the Court’s

requests and the prosecutor’s statement suggest, because of his position as Sudan’s head of

state.

Under international law, the doctrine of sovereign or diplomatic immunity means that certain

holders of high-ranking office in a State such as the Head of State enjoy immunities from

jurisdiction in other States, both civil and criminal. That means that national courts are unable

to try a high official of another state who is suspected of committing crimes – no matter how

serious – as this would constitute a violation of state sovereignty. The United Nations is

based on the principle of the sovereign equality of all member states, whereby a state is not

permitted to interfere in affairs that are within the domestic jurisdiction of another state.

Sovereign immunity covers both a head of state and the state itself. Personal immunity only

extends to incumbent heads of state; in the case of DRC v Belgium, the International Court of

Justice said this was necessary in order for the head of state to be able to exercise his

functions effectively.

There is little question that al-Bashir could be prosecuted before the ICC. According to Pre-

Trial Chamber I, “al-Bashir’s official capacity as a sitting Head of State does not exclude his

criminal responsibility, nor does it grant him immunity against prosecution before the ICC.”

There are many precedents for international courts issuing indictments against sitting heads

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of state, and Article 27 of the Rome Statute of the ICC explicitly provides that the Statute

applies equally to all persons without distinction based on their official capacity.

Thus even in the present case, though Lama Suki being the sitting head of the state, he can be

brought under the jurisdiction of the ICC and tried.

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7) PRAYER

Therefore in the light of the questions presented, arguments advanced and authorities cited,

this Hon’ble court may be pleased to adjudge and declare that:

The accused Colonel Jingo Crackle and accused Mr. Lama Suki have violated the

aforementiond articles of International Criminal Court Statutes and are guilty for the same.

RESPECTFULLY SUBMITTED,

COUNSEL FOR THE ACCUSED PERSON

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prosecution final

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