Team 8. Memorial of the Defense. Pace / ICLN International Criminal Court Moot Court Competition North American Round. Submitted 5 January 2011

Transcription

1 Team 8 Memorial of the Defense Pace / ICLN International Criminal Court Moot Court Competition North American Round Submitted

2 Original: English No.: ICC-01/11 Date: PRE-TRIAL CHAMBER I Before: Registrar: Judges of the Pace ICC Moot Court Competition Registrar of the Court SITUATION IN BRISK IN THE CASE OF THE PROSECUTOR v. JOHN EVANS MEMORIAL OF THE DEFENSE The Office of the Defense Counsel Team 8 ICC-01/11 1

3 TABLE OF CONTENTS LIST OF ABBREVIATIONS... 3 INDEX OF AUTHORITIES... 4 STATEMENT OF FACTS... 7 ISSUES PRESENTED SUMMARY OF ARGUMENT JURISDICTIONAL STATEMENT ARGUMENT Subject Matter Jurisdiction Personal Jurisdiction Violations of John Evans Rights Representation of the Alleged Victims ICC-01/11 2

4 LIST OF ABBREVIATIONS Art. Article 8bis Article 15bis Facts and Procedural History ICC ICTR ICTY No. Rome Statute U.N. Article Amendment to the Rome Statute of the International Criminal Court on the Crime of Aggression, codified as document RC/Res.6 of the 13th Plenary Meeting of the Assembly of States Parties (11 June 2010), Annex I 2 & Annex II. Amendment to the Rome Statute of the International Criminal Court on the Crime of Aggression, codified as document RC/Res.6 of the 13th Plenary Meeting of the Assembly of States Parties (11 June 2010), Annex I 3. International Criminal Court Trial Competition Case, April 2011 International Criminal Court International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Number Text of the Rome Statute of the International Criminal Court circulated as document A/CONF.183/9 of 17 July 1998 and corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January United Nations ICC-01/11 3

5 Cases INDEX OF AUTHORITIES Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Advisory Opinion, 2002 I.C.J. 3 (Feb. 14) Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), 2002 I.C.J. 94 (October 10) Eritrea/Ethiopia, Partial Award, Ius Ad Bellum Ethiopia s Clams 1 8 at 10, 2006 I.L.M. 430 (Eritrea/Ethiopia Claims Commission Dec. 19, 2005), available at 14 Lubanga, Decision on the Schedule and Conduct of the Confirmation Hearing 4 (Nov. 7, 2006) Lubanga, Judgment of the appeals of The Prosecutor and The Defense against Trial Chamber I s Decision on Victims Participation of 18 January (July 11, 2008) The Prosecutor v. Germain Katanga, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case (May 13, 2008), 26 The Prosecutor v. Jean-Pierre Bemba Gombo, Decision on the Prosecutor s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo 24, ICC-01/05-01/08 (June 10, 2008) The Prosecutor v. Momir Nikolic,, Decision on Interlocutory Appeal Concerning the Legality of Arrest 19, IT-940-AR73 (June 5, 2003) The Prosecutor v. Thomas Lubanga Dyilo, Decision on victims participation 92, ICC-01/04-01/ (Jan. 18, 2008)... 24, 25, 26 The United States of America v. Goering, Judgment, 16 (Int l Military Trib. at Nuremberg Oct. 1, 1946), 17 Statutes Article , 23 Rome Statute, Article Rome Statute, Article Rome Statute, Article Rome Statute, Article Rome Statute, Article 61(5) Rome Statute, Article Rome Statute, Article , 26 Rome Statute, Article Rome Statute, Article 8bis... 12, 15, 18 ICC-01/11 4

6 Rome Statute, Articles STATUTE OF THE ICTR, Article 19, 26 STATUTE OF THE ICTY, Article 20, 26 Other Authorities Christian DeFrancia, Due Process in International Criminal Courts: Why Procedure Matters, 87 VA. L. REV. 1381, 1404 (2001)... 20, 21 Christine Gray, The Eritrea/Ethiopia Claims Commission Oversteps its Boundaries: A Partial Award, 17 EUR. J. INT L. L. 699, 713 (2006) Claus Kreß & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. INT L. CRIM. JUST. 1179, 1193 (2010) Dragana Radosavljevic, Mala Captus Bene Detentus and the Right to Challenge the Legality of Arrests, 29 LIVERPOOL L. REV. 269, 281 (2008)... 11, 20, 22 Enrico Milano & Irini Papanicolopulu, Territorial Disputes and State Responsibility on Land and at Sea, Paper Presented at... 13, 14 Kevin Jon Heller, Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression, 18 EUR. J. INT L. L. 477, 479 (2007) Kreß & von Holtzendorff Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal, 49 DEPAUL L. REV. 925, (2000) Salvatore Zappala, The Rights of Victims v. the Rights of the Accused, 8 J. INT L. CRIM. JUST. 137, (2009) Steven Feldstein, Applying the Rome Statute of the International Criminal Court: A Case Study of Henry Kissinger, 92 CAL. L. REV (2004)... 12, 13, 14 Rules RULES OF PROCEDURE AND EVIDENCE, Rule 2, IT/32/Rev. 43 (ICTY 2009)... 23, 24 RULES OF PROCEDURE AND EVIDENCE, Rule 85, ICC-ASP/1/3 (2002) Treaties American Convention on Human Rights, Article 8(2)(h), Nov. 22, 1969, 1144 U.N.T.S International Covenant on Civil and Political Rights art. 9, Dec. 16, 1966, 999 U.N.T.S , 22 U.N. CHARTER, Article U.N. Convention on the Law of the Sea, Article 87, Dec. 10, 1982, 1833 U.N.T.S Vienna Convention on Diplomatic Relations, Article 41, April 18, 1961, 500 U.N.T.S Resolutions G.A. Res (XXIX), Annex, U.N. Doc. A/RES/3314 (Dec. 14, 1974) ICC-01/11 5

7 Universal Declaration of Human Rights, Article 8, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) ICC-01/11 6

8 STATEMENT OF FACTS 1. Brisk and Ulva are two neighboring countries that suffer from a long history conflict and disputes. 1 Both are members of the United Nations and are parties to major human rights treaties, both became States parties to the ICC in 2004, and neither has lodged a declaration opting out of the crime of aggression pursuant to Art. 15bis (4) of the Rome Statute. 2 Ulva has a large coastline with five big seaports, whereas Brisk claims only a very small coastline with one port in the city of Gyst. 3 This coastline is also claimed by Ulva as part of its coastline, and 30 percent of the inhabitants are of Ulvan ethnicity. 4 Ulva is very concerned about responding to increased military activities in its claimed port of Gyst, including the strengthening of the Briskan navy In July 2016, elections were held in Ulva and the New Democratic Party (NDP) won the elections. 6 Benny Thompson became the new president. 7 Defendant John Evans, a close friend of Thompson s, became the leader of the NDP in parliament. 8 Evans is therefore not officially a part of the government, even though he makes comments on aspects of government policy After the Ulvan elections, a series of incidents led to a further deterioration of relations between Brisk and Ulva. 10 The Ulvan government was provoked by arms deliveries by superpowers to Brisk, and the tensions were further enhanced when President Thompson s two sons were arrested while studying in Brisk. 11 As a result of mounting tensions in its claimed territory, Ulva sent out its large and fully-armed fleet to blockade and protect the Port of Gyst on 12 February The fleet was instructed to use all necessary means to prevent every ship from entering or leaving the port of Gyst, and this instruction was supported by a collective 1 Facts and Procedural History 2. 2 Id. at 1. 3 Id. at 2. 4 Id. 5 Id. 6 Facts and Procedural History 3. 7 Id. 8 Id. at 4. 9 Id. 10 Id. at Facts and Procedural History 5. ICC-01/11 7

9 decision of the Ulvan government. 12 Brisk and its population claim that they have suffered from this blockade The blockade is the only hostile act that has occurred between the two States. 14 The blockade decision was taken by the Ulvan government pursuant to Article 73 of the Constitution of Ulva, which stipulates that a declaration of war requires two-thirds or votes in parliament. 15 Ulva never declared war, and maintains that the conflict with Brisk falls short of a war within the meaning of Article 73 of the Ulvan Constitution. 16 John Evans has repeatedly stated that this was a decision for the government to make, even though he has at times publicly supported President Thompson s Administration in its position in the conflict with Brisk The U.N. Security Council did not decide that an act of aggression occurred, even though on 1 April 2018 the U.N. Security Council determined by a unanimous vote in Resolution 8679 that the blockade amounted to a breach of and threat to international peace and security and condemned Ulva for its actions. 18 On 12 May 2018 the ICC Prosecutor announced his intention to start an investigation acting proprio motu into the conflict between Brisk and Ulva. 19 Following the ICC prosecutor s notification, the Security Council could conclude that Ulva had committed an act of aggression. 20 Six months later, on 11 November 2018, the ICC prosecutor, pursuant to Art. 15bis (8), requested authorization from the Pre-Trial Chamber to proceed with an investigation into the crime of aggression, and received authorization on 11 December On 15 January 2019 the Prosecutor, on the basis of his investigation, submitted to the Pre-Trial Chamber an application for an arrest warrant for Defendant John Evans. 22 The application alleged that from 12 February 2018 onwards, John Evans and others committed the 12 Id. at Id. at Id. at Id. at Facts and Procedural History Id. at Id. at Id. at Id. at Facts and Procedural History Id. at 14. ICC-01/11 8

10 crime of aggression (Article 8bis and Article 25 (3) (a) of the Rome Statute). 23 The Prosecutor submitted evidence that John Evans, being the political leader of the major government party in a Democratic State was with others in effective control over government decisions and failed to take the necessary and reasonable steps to alter Government decision-making On 15 February 2019 the Pre-Trial Chamber honored the application and issued an arrest warrant for Evans. 25 It requested Ulva and all other States parties to the Rome Statute to cooperate within their jurisdiction in the arrest and surrender of Evans. 26 On 19 February 2019, Ulvan President Thompson said that Evans, enjoying immunity as a member of parliament, could not be arrested and surrendered to the ICC On 24 February 2019, John Evans visited Konera, a country in the region that is not a State Party to the Rome Statute, for a meeting with friends. 28 During his visit, Evans went to a casino that was on the border with Arduum, which is a State Party to the Rome Statute. 29 Since gambling is illegal in Konera, the casino is organized so that the gambling takes place in Arduum, while the other facilities are located in Konera When Evans found out that the gambling was taking place on Arduum territory, he purposefully decided to wait in the bar for his friends thereby remaining in Konera. 31 While waiting, private security staff requested he come with them for a security check, but Evans refused to proceed into the gambling area that lies in Arduum s territory. 32 Unwilling to allow Evans to remain peacefully at the bar, the security officers took him by force against his will to 23 Id. 24 Id. at Id. at Facts and Procedural History Id. at Id. at Id. 30 Id. 31 Facts and Procedural History Id. ICC-01/11 9

11 the security desk. 33 An identity check revealed that Evans was on an arrest list; security officers notified the police, and subsequently took him into custody in Arduum On 1 March 2019 a surrender hearing took place in Arduum pursuant to the ICC arrest warrant. 35 Even though Evans claimed that he had been unlawfully arrested and abducted to Arduum, both the national court and the responsible Minister indicated that their only choice was to execute the arrest warrant. They concluded that it was not open to them to challenge the warrant s validity. 36 On 5 March 2019, Evans was surrendered to the ICC, and the case was assigned to Pre-Trial Chamber 6 to hold a confirmation hearing within a reasonable time A few weeks before the confirmation hearing, which was scheduled for 17 May 2019, 20,000 Briskan nationals (primarily consisting of inhabitants of the Port of Gyst), filed a request to be recognized as victims and to participate in the proceedings against Defendant Evans. 38 These applicants were represented by one counsel, who claimed that they were deprived of food and other important resources and that they had been living in constant fear of attack by the Ulvan fleet. 39 On 2 April 2019, the Pre-Trial Chamber granted the applicants a provisional status of victims, B01 B20, The victims were attributed participatory rights, including the right to make submissions in relation to all point on the agenda for the confirmation hearing. 41 ISSUES PRESENTED 12. The Defense submits that the following issues exist to be decided by the Court at John Evans confirmation hearing: 1) Whether the Court should dismiss this case because it lacks subject matter and personal jurisdiction in this case; 2) Whether, regardless of whether the Court has jurisdiction, this case should be set aside and Defendant John Evans should be released due 33 Id. 34 Id. 35 Id. at Facts and Procedural History Id. at Id. at Id. 40 Id. at Facts and Procedural History 26. ICC-01/11 10

12 to the egregious human rights and procedural violations he has suffered at the hands of the State of Arduum and this Court when he was forcibly moved into their jurisdictions in order to be arrested; 3) Whether the victims B01 B20,000 should be given participatory rights, and if so, whether this includes any rights to make submissions of evidence in relation to any points on the agenda for the confirmation hearing. SUMMARY OF ARGUMENT 13. This case improperly comes before this Court after grave violations of Defendant John Evans individual rights. Evans, the leader of the New Democratic Party in Ulva, was wrongfully kidnapped and arrested in Arduum and accused of committing aggression against Brisk. 42 Because this Court lacks jurisdiction to hear the case, and because Evans procedural rights and human rights have been violated in the execution of his arrest and detention, Defendant Evans respectfully requests this Court to dismiss the charges brought against him and set him free. 14. The Court should dismiss this case because it does not have jurisdiction over the alleged crime. The Court lacks subject matter jurisdiction because the Prosecutor has not presented sufficient evidence to establish substantial grounds to believe that Ulva committed an act of aggression via the blockade because the relevant action occurred entirely in disputed territory. Even if the Court does find that the blockade was an act of aggression, it was not of sufficient character, gravity, and scale to constitute a manifest violation of the U.N. Charter, which is a precondition of this Court s subject matter jurisdiction over the crime of aggression. 15. Regardless of jurisdiction, this Court should release Defendant John Evans due to the egregious violations of his human rights and procedural rights that he has suffered during his arrest and detention. Evans was forcefully abducted in order to be arrested pursuant to an arrest warrant that was not granted on the grounds of sufficient evidence. Moreover, Evans was not given the right to challenge this warrant or appeal the finding of the national court in Arduum that his procedural and human rights were violated. Because the Court should not abide by the 42 Id. at 4 & 19. ICC-01/11 11

13 principle mala captus bene detentus, 43 Evans must be released in the interests of justice in order to maintain the legitimacy of this Court. 16. Finally, applicants B01 B20,000 should not maintain victim status because they have not suffered any cognizable harm before this Court. No crime is properly before this Court s jurisdiction, and even if the alleged crime is, it was not targeted at these victims. The harm that they have suffered is general in nature, and when weighed against the Defendant s rights to a fair trial does not merit their participation. If the Court finds that they are victims with the right to participation, the Court must still undertake its duty to limit the prejudice to the Defendant by only allowing them to participate in the stages of trial relevant to their harms, and by preventing them from introducing any additional evidence. JURISDICTIONAL STATEMENT 17. On 15 February 2019 the Pre-Trial Chamber ruled that the ICC appears to have jurisdiction; that the case appears to be admissible; that there is sufficient evidence; and that there are grounds to justify arrest and surrender. 44 Nevertheless, the defense maintains that the Court does not have jurisdiction over the crimes for which the Prosecutor seeks confirmation. All the grounds on which the court can base its jurisdiction do not exist in the case at hand, as will be explained below. ARGUMENT 18. At the Confirmation stage of the hearings, the Prosecutor must support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. 45 Here, the Prosecutor has charged Defendant John Evans with the crime of aggression. Therefore, in order to establish jurisdiction the Prosecutor must show that the 43 Literally meaning wrongly captured, properly detained, the phrase stands for the concept that a wrongful arrest should not prejudice a subsequent trial. However, this concept is contrary to the rights of criminal defendants under customary international law. See Dragana Radosavljevic, Mala Captus Bene Detentus and the Right to Challenge the Legality of Arrests, 29 LIVERPOOL L. REV. 269, 281 (2008). 44 Facts and Procedural History Rome Statute, Article 61(5). ICC-01/11 12

14 Defendant John Evans planned, perpetrated, initiated, or executed an act of aggression which by its character, gravity, and scale constitutes a manifest violation of the Charter of the United Nations, while he was in a position to effectively exercise control over or to direct the political or military action of Ulva. 46 Because both the subject matter and personal jurisdictional requirements of the Rome Statue cannot be satisfied in this case, the Court cannot hear this case. Subject Matter Jurisdiction 19. An act of aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the Charter of the United Nations. 47 Although Article 8bis and United Nations General Assembly Resolution 3314 (XXIX) of December specifically mention that blockades qualify as an act of aggression, the blockade at issue in this case does not suffice to create jurisdiction because it did not violate the territorial integrity or political independence of Brisk. Ulva had a legitimate claim to the port of Gyst, and even if Ulva s claim to the port of Gyst is not valid, the ICC is not the proper tribunal to resolve this territorial dispute. Furthermore, should the ICC choose to rule against Ulva on the territorial dispute, Evans good faith mistake over the use of the blockade in disputed territory did not constitute a manifest violation of the U.N. Charter. 20. Unlike the International Court of Justice, which has jurisdiction over States and is a tribunal whose competence includes territorial disputes, this Court only has the power to exercise its jurisdiction over persons for the most serious crimes of international concern. 49 Although Article 59 of the ICJ statute makes clear that the common law notion of precedent (stare decisis) does not apply to decisions of the ICJ, its decisions do bind the parties to that particular controversy, and international lawyers commonly operate as though ICJ judgments had precedential value. 50 Therefore, the ICC should respect the holdings and the jurisdiction of the 46 Rome Statute, Article 8bis. 47 Id. 48 G.A. Res (XXIX), Annex, U.N. Doc. A/RES/3314 (Dec. 14, 1974). 49 Rome Statute, Article 1 (emphasis added). 50 See generally Steven Feldstein, Applying the Rome Statute of the International Criminal Court: A Case Study of Henry Kissinger, 92 CAL. L. REV (2004). ICC-01/11 13

15 ICJ. While this understanding was never codified in the Rome Statute, it was the understanding of the Rome Statute s framers that the Court would cooperate with other international tribunals Because Ulva has claimed a right to the territory in the port of Gyst, this Court cannot find that John Evans committed an act of aggression that violated the territorial integrity of Brisk without implicitly ruling on the territorial dispute between Ulva and Brisk. Since the ICC does not have jurisdiction over States, and should respect the jurisdiction of the ICJ over territorial disputes, it should decline to exercise jurisdiction over John Evans until a ruling has been made on the territorial dispute by the ICJ, rather than making this determination on its own. 22. Should the ICC choose to rule on the territorial dispute, it should find that the disputed territory in the port of Gyst belonged to Ulva and that the blockade constituted permissible selfdefense of that territory rather than an act of aggression. Even if the Court resolves the territorial dispute in favor of Brisk, the Court cannot hold any Ulvan actor, including defendant John Evans, responsible for a good faith mistake in his interpretation of a legitimate territorial dispute. 23. Customary international law provides that a State exercises sovereignty over its land territory and its jurisdiction in adjacent maritime zones. 52 Sovereignty includes the possibility of acting upon a territory and excluding other States from acting thereupon. 53 Moreover, Article 51 of the UN Charter provides that all members of the United Nations have the inherent right to act in self-defense on their territory. 54 The International Court of Justice recognized these rights in the dispute between Cameroon and Nigeria over the Lake Chad region in which Nigeria used force to secure its claim to the region. 55 In that case, Nigeria argued that a legitimate dispute existed between the two states, and that in Nigeria s opinion it used force only in self-defense to resolve internal problems in response to encroachment by Cameroon. 56 Although the ICJ only ruled on the boundary dispute, it granted Cameroon s claims and decided not to rule on whether Nigeria has illegally used force. This decision has been considered an acceptance of Nigeria s 51 See id. 52 Enrico Milano & Irini Papanicolopulu, Territorial Disputes and State Responsibility on Land and at Sea, Paper Presented at The State of Sovereignty Conference, Durham University (2009), ) 53 Id. 54 U.N. CHARTER, Article See Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), 2002 I.C.J. 94 (October 10). 56 Id. ICC-01/11 14

16 argument that its good faith mistake did not give rise to a violation of international law. 57 Similarly, here there is at least a legitimate dispute over the territory in Gyst, and the Ulvan government acted only in self-defense in response to provocations by Brisk This Court must distinguish the Nigeria case from the dispute between Eritrea and Ethiopia, in which an ad hoc Claims Commission established by agreement of the parties (which should carry less precedential weight than the ICJ, an organ of the U.N.), held that self-defense cannot be invoked to settle territorial disputes. 59 In that dispute, Ethiopia unsuccessfully argued that its use of force was intended to regain control over territory which belonged to it, but which had been under Eritrea s peaceful administration for years. The dispute involved a settled land boundary, whereas maritime boundaries have to be agreed upon by States whose potential areas overlap. 60 It is thus rare that a State would incur international responsibility for violating rules relating to title of maritime territory because there is rarely a clear allocation of such space Here, Ulva s blockade was used only in self defense to resolve the internal problems created in the disputed Port of Gyst as a result of the strengthening of the Briskan navy in the region, the importation of arms by Brisk, and increasing hostilities between the two countries which was provoked by Brisk. 62 The U.N. Charter maintains that force is justifiable in a limited number of instances to maintain international peace and security, including taking measures to engage in self-defense. 63 Even if unsanctioned by the Security Council, a use of force to settle a boundary dispute where the initiator has a reasonable claim and limited aims is one example of self-defense. 64 Therefore, even if the Court determines that Ulva did not have a rightful clam to the territory, there was at least a legitimate dispute over the territory. The Brisk-Ulva conflict is thus parallel to the Nigeria case, and the legitimacy of the dispute is enhanced because it is a maritime dispute. Thus, this court should follow ICJ precedent and U.N. principles and hold that 57 See Milano & Papanicolopulu, supra note 52; Christine Gray, The Eritrea/Ethiopia Claims Commission Oversteps its Boundaries: A Partial Award, 17 EUR. J. INT L. L. 699, 713 (2006). 58 See Facts and Procedural History 5 (noting that arms importation by Brisk elevated tensions in the region). 59 Eritrea/Ethiopia, Partial Award, Ius Ad Bellum Ethiopia s Clams 1 8 at 10, 2006 I.L.M. 430 (Eritrea/Ethiopia Claims Commission Dec. 19, 2005), available at 60 See U.N. Convention on the Law of the Sea, Article 87, Dec. 10, 1982, 1833 U.N.T.S See Milano & Papanicolopulu, supra note Facts and Procedural History See Feldstein, supra note 50, at See id. ICC-01/11 15

17 an act of aggression was not committed because the territorial integrity of Brisk was not violated. Even if the port of Gyst belonged to Brisk, Ulva s claims under the dispute were legitimate, and therefore its use of the blockade was made in a good faith effort of self-defense. 26. Even if the Court chooses to adjudicate the boundary dispute, rules against Ulva, and further finds that the dispute was so illegitimate that Ulva s blockade was an act of aggression in violation of the U.N. Charter rather than an act of self-defense, not every act of aggression constitutes a crime of aggression cognizable by this Court. An act must also be a manifest violation of the U.N. Charter of sufficient character, gravity, and scale in order to constitute the crime. 65 The criteria of gravity and scale capture the requirement that the crime must be of sufficient seriousness, while the character requirement acknowledges that the specific acts of aggression which fall into a grey area under permitted uses of force should not be included or charged as a crime of aggression Here, the Security Council deliberated over the issue and could not come to the conclusion that a manifest violation of the U.N. Charter had occurred. 67 If the violation truly were manifest, presumably the Security Council would have reached this conclusion. Moreover, the character of this act of aggression is not consistent with charging a crime, since Ulva s actions were taken in good faith regarding a grey area in the use of force. Moreover, the gravity and scale of the alleged act of aggression do not capture the requisite seriousness to constitute a crime. Ulva blockaded only a single port, which caused Brisk to suffer minimal economic harm. Neither is there any indication that the Ulvan Government intended to cut off all resources to the State of Brisk or to starve the population; importantly, if there were, John Evans was certainly not aware of this fact, as will be argued in the sections below. Moreover, only the small community in the disputed territory of Gyst (which includes 30% Ulvan citizens) claims to have suffered harm, rather than a large-scale group of exclusively Briskan nationals. Therefore, Ulva s actions in the current case, even if they constitute an act of aggression, do not constitute the crime of aggression that John Evans has been charged with because they were not of sufficient character, gravity, and scale to constitute a manifest violation of the U.N. Charter. 65 Rome Statute, Article 8bis. 66 Claus Kreß & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. INT L. CRIM. JUST. 1179, 1193 (2010). 67 Facts and Procedural History 13; Answers to Questions 13. ICC-01/11 16

18 Personal Jurisdiction 28. Article 25 of the Rome Statute, which sets out the requirements for criminal responsibility in proceedings by this Court, establishes no grounds of individual criminal responsibility that apply to Defendant John Evans. Therefore, the court has no personal jurisdiction to proceed in this case. 29. Article 25(3) sets out four possibilities for criminal responsibility. Under Article 25(3)(a), a defendant is responsible if he directly commits the crime, whether as an individual, jointly, or through another person. Here, Evans did not commit the alleged crime himself. Rather, the Ulvan navy was the actor directly responsible for the blockade that establishes the factual basis for the charges brought in this case Under Article 25(3)(b), a person is also responsible if he orders, solicits, or induces the commission of a crime. Here, the Ulvan government, led by President Thompson, unilaterally ordered the blockade without the direct or formal consent of Parliament or the NDP leader, Evans. 69 Although Evans supported the Government s position in the media, they cannot be construed as an inducement that caused the blockade because they came only after the government instituted the blockade. 70 Therefore it does not give rise to criminal responsibility. 31. Finally, under Article 25(3)(c & d) a person is responsible if he contributes in any way to the commission of a crime by a group of persons acting with a common purpose, provided such contribution is intentional, with the aim of furthering the criminal activity and in the knowledge of the intention of the group to commit the crime. Here, once again, Evans cannot be held responsible because he took no affirmative actions related to the blockade and did not consult with the government prior to its decision to institute the blockade. The only actions he did take, by supporting the Government in the media, were not intended to further any criminal activity because the Government maintained that the blockade did not constitute an act of aggression. 71 Therefore, Evans did not act with the requisite knowledge that any of his actions were potentially furthering a criminal activity, and the court cannot establish personal jurisdiction over him. 68 Facts and Procedural History Id. 70 Id. at Id. at 9. ICC-01/11 17

19 32. Even if the Court finds that Defendant John Evans contributed to an act of aggression under Article 25(3) because he did not attempt to alter the Government s decision, Article 25(3bis) requires more stringently that a person must be in a position to exercise effective control over the political or military apparatus of a state in order to incur criminal liability for the crime of aggression. The leadership requirement dates back to Justice Jackson s opening argument at the Nuremberg trials and is a fundamental prerequisite to establishing personal jurisdiction in charging a crime of aggression. 72 Moreover, the Special Working Group for the Crime of Aggression specifically did not recommend less restrictive language such as shape or influence in order to accord with the precedent set at the Nuremberg Military Tribunal requiring the Prosecution to establish the more restrictive control or direct requirement. 73 Accordingly, the Nuremberg Tribunal exonerated a German defendant who was clearly not one of the inner circle around Hitler which was most clearly involved with [his] common plan. 74 It also exonerated a defendant who was a member of the Reichstag from 1941 to 1945 and became Minister for Armaments, because he did not exercise sufficient control or leadership to accrue criminal responsibility for the crime of aggression In all of the cases under the Nuremberg Tribunal the court strived to draw an essential distinction between followers and leaders. 76 This Court must do the same thing in order to avoid making it too difficult to draw the line between the guilty and innocent among the Ulvan Government and the entire mass of the Ulvan people, including the Defendant John Evans. The Nuremberg Tribunal implied that this line is best drawn at those who are responsible for the formation and execution of policies, i.e., they exercise sufficient control to be included in the relevant discussions Here, Defendant John Evans was never in a position to exercise effective control over the blockade in question. The blockade decision was made unilaterally by President Thompson s 72 Kevin Jon Heller, Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression, 18 EUR. J. INT L. L. 477, 479 (2007). 73 Id. 74 The United States of America v. Goering, Judgment, 16 (Int l Military Trib. at Nuremberg Oct. 1, 1946), (hereinafter Nuremberg Judgment). 75 See Heller, supra note 72, at Id. 77 Id. ICC-01/11 18

20 Administration and other actors in the Ulvan military. 78 Although Evans and his party supported the decision, they did not vote to uphold the blockade, and they were not included in the deliberations by the Ulvan government. This is shown by the fact that the minority parties called for a vote following Article 73 of the Ulvan Constitution because they were excluded from the discussions and did not believe the blockade was valid under the Ulvan Constitution. 79 Although Evans and his party did not institute such a vote, they reasonably believed that the blockade did not constitute an act of war that required the approval of Parliament. Moreover, had a vote been taken, Evans fifty-one percent majority in Parliament would not have been able to institute the blockade even if it had desired to because a two-thirds majority vote is required under the Ulvan Constitution, further proving that Evans could not have exercised sufficient control While it is unclear whether or not Evans could have voted down the authority for the Government to continue pursuing the blockade, the ultimate authority to effectively exercise control clearly rested with President Thompson and his Administration in this case. There is thus no action that John Evans personally could have taken to prevent the blockade, especially because he was not involved in the discussions within the government to initiate the blockade. Therefore, Evans was not in a position to exercise effective control over the political and military apparatus of the state, and he cannot be held criminally responsible for the crime of aggression. 36. Article 32 provides that a mistake of fact shall be a ground for excluding criminal responsibility if it negates the mental element required by the crime. 81 Elements 4 and 6 of the crime of aggression require that the defendant was aware of the factual circumstances that establish that the use of armed force was inconsistent with the Charter of the United Nations and a manifest violation of the Charter. 82 The requirement that the use of force constitute a manifest violation of the Charter was included in order to protect defendants under a mistake of law defense before the ICC pursuant to a charge of aggression Facts and Procedural History Id. at Id. at Rome Statute, Article Rome Statute, Article 8bis. 83 Kreß & von Holtzendorff, supra note 66, at ICC-01/11 19

21 37. Here, if the Court determines that the factual circumstances establish the crime of aggression, Defendant John Evans was not aware of these factual circumstances and therefore should be excused from responsibility. Evans believed that the blockade was a decision for the government to take and that did not require input from or the consent of Parliament. 84 He reasonably believed that this use of force was justified over the territory claimed by Ulva in selfdefense, and if not in self-defense then as an action that falls short of an act of war or aggression. Therefore, Evans cannot be found criminally responsible because of his mistake of fact. Violations of John Evans Rights 38. As set forth in the sections above, the Court should declare this case inadmissible for lack of jurisdiction. Nevertheless, even if the Court does not find those arguments compelling, the Court must still consider whether there are any circumstances which would warrant setting aside jurisdiction and releasing the accused. 85 In the present case there are circumstances that warrant setting aside jurisdiction, because John Evans was abducted and forcefully moved to Arduum in order to be arrested. 86 In addition, there were insufficient grounds for the Court to issue the arrest warrant, and Evans was not given the right to appeal the decision that was improperly made by Arduum when he challenged the arrest warrant. Because the initial arrest and subsequent holding regarding the warrant were unlawful violations of John Evans human rights and procedural rights, all proceedings after that arrest, including his surrender to this Court, constitute a continued violation of those rights. Therefore, in the interests of justice, the Court should set aside jurisdiction and release John Evans. 39. Human rights must be respected by the Court pursuant to Article 21(1) of the Rome Statute. Moreover, both Ulva and Brisk are parties to major human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR). 87 Article 9 of the ICCPR provides that everyone has the right to liberty and security of person and that no one shall be subject to 84 Facts and Procedural History The Prosecutor v. Momir Nikolic,, Decision on Interlocutory Appeal Concerning the Legality of Arrest 19, IT- 940-AR73 (June 5, 2003). 86 Facts and Procedural History Id. at 1. ICC-01/11 20

22 arbitrary arrest or detention. 88 Article 9 further states that no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 89 Furthermore, without the authorization of the Security Council, the consent of the territorial state, or a situation that qualifies as self-defense, the forceful abduction of an accused in order to serve an arrest warrant is a violation of international law and the rights of the accused. 90 Under international law, states may exercise police powers within the territory of another state only with the consent of the host state. 91 The unconsented exercise of such powers constitutes an infringement of the sovereignty and territorial integrity of the host state in violation of the U.N. Charter and customary international law. 92 Anyone seized in such a situation, therefore, is unlawfully seized. 40. While there is some precedent for the principle mala captus bene detentus, which provides that a person, even though unlawfully seized, may subsequently be detained legally, it is widely denounced in the international community. 93 The Human Rights Committee, which monitors the implementation of the ICCPR, has ruled on multiple occasions that transborder abductions violate Article 9 of the Covenant. 94 And while luring may be considered a legitimate tactic in war crimes cases, forceful apprehension without the permission of the State in whose territory the arrest takes places (in other words, kidnapping) would not likely pass muster under international legal norms Moreover, the underlying logic of the Rome Statute appears to establish a greater sense of custodial responsibility for the actions taken at its behest, increasing the likelihood that the ICC will be an institution that ensures that its allies practice the humanitarian laws they seek to 88 International Covenant on Civil and Political Rights art. 9, Dec. 16, 1966, 999 U.N.T.S. 171 (hereinafter ICCPR ). 89 Id. 90 See Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal, 49 DEPAUL L. REV. 925, (2000). 91 Id. at Id. (citing U.N. CHARTER Art. 2(4)). 93 See Radosavljevic, supra note 43, at Scharf, supra note 90, at Christian DeFrancia, Due Process in International Criminal Courts: Why Procedure Matters, 87 VA. L. REV. 1381, 1404 (2001). ICC-01/11 21

23 enforce. 96 Thus, the Article 55 protects the rights of persons during an investigation to be free from unlawful or arbitrary arrest, as well as not to be subject to coercion, duress or threat to any other form of cruel, inhuman or degrading treatment. 97 The Rome Statute also hints at enforcing a strong relationship between the actions of custodial states and the jurisdiction of the ICC by granting a right to compensation for any victim of an unlawful arrest or detention These precedents establish that the Court must dismiss a case where, as here, the defendant has been abducted in violation of international law, in order to avoid sanctioning human rights violations. John Evans right to liberty was violated when he was forcefully abducted from Konera, taken into Arduum, and subsequently arrested, all against his will and without the consent of Ulva, Konera, or the Security Council. 99 Therefore, the Court must refuse to exercise jurisdiction due to the manner in which Evans was brought into its jurisdiction. 43. Article 58 requires the Prosecutor to show reasonable grounds to believe that the person committed a crime within the jurisdiction of the court before the Court can grant an application for a warrant. In applying this standard, the Court has looked to the reasonable suspicion standard articulated in Article 51(c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 100 In order to meet this standard, the Prosecutor must have shown some facts or information which would satisfy an objective observer that the person concerned Here, John Evans has denied any wrongdoing, and no act of aggression has been committed. Moreover, the Government, rather than John Evans, is the party responsible for the blockade that forms the basis of this charge, and there is no evidence to suggest that Evans has taken any action related to the blockade. 102 Therefore, the warrant was improperly issued and Evans must be released. 96 Id. at Rome Statute, Article Rome Statute, Article Facts and Procedural History The Prosecutor v. Jean-Pierre Bemba Gombo, Decision on the Prosecutor s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo 24, ICC-01/05-01/08 (June 10, 2008). 101 Id. 102 Facts and Procedural History 6. ICC-01/11 22

24 45. The national court in Arduum concluded that, pursuant to Article 59(4), it was not open to them to hear John Evans challenge the warrant s validity at his surrender hearing. However, the Court failed to recognize that even though it cannot challenge the warrant s validity, it must assure that the defendant has been arrested in accordance with proper process and the person s rights have been respected. Therefore Arduum not only violated John Evans human rights as stated, but it also violated his procedural rights because it failed to grant him an appeal to a higher court, 103 as the American Convention on Human Rights specifically provides for Here, this Court cannot ignore these violations by the national court of Arduum. The principle mala captus bene detentus is widely recognized to be inconsistent with human rights, criminal process rights, and justice. 105 Thus, this Court must set aside jurisdiction and release John Evans in order to respect his human rights and procedural rights. 47. As argued in the Sections above, the defense maintains that John Evans did not have a position of sufficient control within the Ulvan government to be held responsible for the crime of aggression. However, should this Court find that Evans role as leader of Parliament gave him sufficient control to establish criminal responsibility, then Evans likely has immunity from prosecution as a head of state. In that case, his arrest would violate Article 41 of the Vienna Convention on Diplomatic Relations, which has been accepted has an international customary rule, that heads of state enjoy immunity while they are still in office and therefore cannot be arrested by another state for crimes they have allegedly committed. 106 The immunity is in effect while the heads of state exercise their duties, while travelling in order to perform them The defense acknowledges that Article 27 allows the Court to issue an arrest warrant for sitting heads of state. 108 However, pursuant to Article 98(1), the Court may not require a State to 103 Id. at See American Convention on Human Rights, Article 8(2)(h), Nov. 22, 1969, 1144 U.N.T.S. 123 (the right to appeal a judgment to a higher court); ICCPR, supra note 88, at Article 14 (right to a fair hearing); Universal Declaration of Human Rights, Article 8, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) (right to a fair public hearing). 105 See Radosavljevic, supra note 43, at See Vienna Convention on Diplomatic Relations, Article 41, April 18, 1961, 500 U.N.T.S See Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Advisory Opinion, 2002 I.C.J. 3 (Feb. 14). 108 Rome Statute, Article 27. ICC-01/11 23

25 act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state (a non-state party to the ICC) John Evans was abducted and subsequently arrested while he was visiting Konera, a non- State party to the ICC. 110 Therefore, Konera s responsibility to respect this immunity, as well as Arduum s action of abducting Evans from a state where he likely enjoyed immunity, provide a further reason why his arrest was an illegal act that violated Evans procedural rights. Although the defense acknowledges that John Evans was visiting Konera for a private meeting with friends, there is no indication that this meeting did not pertain to his role as head of Parliament. 111 Moreover, the only reason he was taken to Arduum and arrested was because of the arrest warrant outstanding against him due to his official capacity. Therefore, John Evans should be released because he enjoys immunity as a head of state, and that right was violated. Representation of the Alleged Victims 50. Article 68 allows the court to permit the views and concerns of victims, where their personal interests are affected, provided they participate in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 112 These views must therefore be presented in accordance with the Rules of Procedure and Evidence. 113 Most importantly, Rule 85 of Procedure and Evidence requires a showing that applicants have suffered harm as a result of the commission of any crime within the court. 114 Moreover, the word victim should be understood in the historical context of international tribunals such as the ICTY, which in Rule 2 of its Rules of Procedure and Evidence defines the victim as [a] person against whom a crime over which the tribunal has jurisdiction has allegedly been committed Therefore, the Defense first maintains that B01 B20,000 should be denied participatory rights because no crime is properly before the jurisdiction of the court in the current matter. However, assuming that the alleged crime of aggression is within the jurisdiction of the Court, 109 Id. at Article Facts and Procedural History Id. 112 Rome Statute, Article Id. 114 RULES OF PROCEDURE AND EVIDENCE, Rule 85, ICC-ASP/1/3 (2002) (hereinafter ICC RPE ). 115 RULES OF PROCEDURE AND EVIDENCE, Rule 2, IT/32/Rev. 43 (ICTY 2009) (hereinafter ICTY RPE ). ICC-01/11 24

26 they should still be denied participation rights because they have not suffered any harms that merit the status of victims. Although harm is not defined in Rule 85, the court has interpreted it to include physical, mental, emotional or economic loss. 116 However, Pursuant to Article 68 (3), victims personal interests cannot be based on general interests of victims that are affected by overall stages of ICC proceedings. 117 Instead, the Court has held that this loss must be of a personal, rather than collective nature Although the starvation of a population might be significant enough to qualify as a harm contemplated under Rule 85, the claims of food deprivation by the victims here appear to be generalized grievances. These harms also do not merit granting B01-B victim status because these applicants were not the specifically targeted victims of the alleged crime. 119 Moreover, the victims claim of living in fear of an attack by the Ulvan fleet is also a collective harm that could not have materialized for each of the individual victims in a way that can be proved before the court. 120 Even though this Court recognized the possibility of suffering a psychological harm, it only recognized that possibility in relation to an actual act done that directly caused the harm. 121 Moreover, if the Court chooses to recognize this kind of harm, it will lead to a slippery slope that could potentially grant any person claiming to suffer any intangible harm a right before the court. 53. Only those victims who can show a link between their specific personal interests and the issues or items of evidence that are the subject of the trial can be granted participating status. 122 Participatory rights should only be granted to victims in relation to specific procedural activities or items of evidence, and in light of the specific personal interests of those requesting to participate The Prosecutor v. Thomas Lubanga Dyilo, Decision on victims participation 92, ICC-01/04-01/ (Jan. 18, 2008). 117 Id. at Lubanga, Judgment of the appeals of The Prosecutor and The Defense against Trial Chamber I s Decision on Victims Participation of 18 January (July 11, 2008). 119 Cf. ICTY RPE, supra note 115, Rule Facts and Procedural History Cf. Lubanga, supra note 116, at Id. at 2, 95 96, , and Id. at (confirmed in Lubanga, supra note 118, at 104). ICC-01/11 25