NUREMBERG MOOT COURT COMPETITION. The Office of the Prosecutor Team Number: 4 Year: 2015 Total Word Count: 3.494

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1 NUREMBERG MOOT COURT COMPETITION The Office of the Prosecutor Team Number: 4 Year: 2015 Total Word Count: 3.494

2 SUMMARY OF ARGUMENTS I. PROCEDURAL MATTERS A. THE PROSECUTION ACTED LEGITIMATELY BY INITIATING A PRELIMINARY EXAMINATION A.1 THE PRECONDITIONS TO THE EXERCISE OF JURISDICTION WERE MET A.2 - THE TWOFOLD REQUIREMENT IN ARTICLE 17 WAS RESPECTED A COMPLEMENTARITY (ARTICLE 17(1)(A) TO (C)) A GRAVITY (ARTICLE 17(1)(D)) B. THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION OVER THE CASE B.1 - JURISDICTION RATIONE TEMPORIS AND THE WITHDRAWAL (ART. 127, ROME STATUTE) B THERE WAS A MATTER UNDER CONSIDERATION BY THE COURT B.1.2 ICC HAS JURISDICTION OVER BOTH CRIMES II. MATERIAL ELEMENTS OF THE CRIMES AND FORMS OF LIABILITY A. MS. MINSA FACILITATED THE COMMISSION OF GENOCIDE A.1 - ELEMENTS OF THE CRIME (ARTICLE 6(A)) A OBJECTIVE ELEMENTS A SUBJECTIVE ELEMENTS A.2 - FORM OF LIABILITY (ARTICLE 25(3)(B)) A.3 - SELF-DEFENCE AND DURESS AS NON-EXONERATING CIRCUMSTANCES (ARTICLE 31(1)(C) AND (D)). B. MS. MINSA CONTRIBUTED TO THE COMMISSION OF A CRIME AGAINST HUMANITY B.1 ELEMENTS OF THE CRIME B OBJECTIVE ELEMENTS: THERE WAS A WIDESPREAD AND SYSTEMATIC ATTACK B OBJECTIVE ELEMENT: OTHER INHUMANE ACTS B SUBJECTIVE ELEMENTS B.2 - FORM OF LIABILITY (ARTICLE 25(3)(D)) B.3 - THE CODE OF MEDICAL ETHICS AS A NON-EXONERATING CIRCUMSTANCE

3 III. GROUNDS FOR CONFIRMATION OF CHARGES A. THE EVIDENTIARY THRESHOLD FROM ARTICLE 61(7) IS MET B. THE REQUIREMENTS FROM ARTICLE 17 ARE FILLED IV. CONCLUDING SUBMISSIONS

4 INTRODUCTION The dead cannot cry out for justice. It is a duty of the living to do so for them. Lois McMaster Bujold Pursuant to article 61(7) of the Rome Statute (Statute), the Chamber shall, on the confirmation of charges procedural stage, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. We respectfully submit that, at this procedural moment, this evidentiary standard is met. The Prosecution offers concrete and tangible proof demonstrating a clear line of reasoning underpinning is specific allegations 1 against Ms. Minsa, so that the charges presented must be confirmed, in accordance with article 61(7)(a) Statute. To that effect, we submit that (i) the Prosecution did not act with abuse of authority by initiating investigations proprio motu, and, thus (ii) the International Criminal Court has jurisdiction over the case, independently on the withdrawal. Furthermore, there are strong grounds for believing that the defendant is criminally liable (iii) for facilitating the commission of Genocide and (iv) for contributing to the commission of a Crime Against Humanity. 1 See ICC-01/04-01/ tEN, The Prosecutor v. Thomas Lubanga Dyilo, PTC I, Decision on the Confirmation of Charges, 29 January 2007, paras. 38-9; ICC-01/04-01/07-717, The Prosecutor v. Germain Katanga, PTC I, Decision on the Confirmation of Charges, 1 October 2008, paras

5 I. PROCEDURAL MATTERS A. THE PROSECUTION ACTED LEGITIMATELY BY INITIATING A PRELIMINARY EXAMINATION The Prosecution decided to open an investigation under its proprio motu powers following the statutory parameters since, after having received, analyzed and filtered information from different sources, it concluded (i) a potential case could arise under the ICC s jurisdiction and (ii) the case would be admissible. A.1 THE PRECONDITIONS TO THE EXERCISE OF JURISDICTION WERE MET The information on crimes allegedly committed in Arkania, before November 2010, indicated potential cases that could fall within the jurisdiction of the Court. The jurisdiction ratione temporis and ratione loci existed since Arkania was a State member and the withdrawal had not operated effects while the crimes were being committed. Furthermore, regarding to the jurisdiction ratione materiae, two potential crimes could be inferred from the situation: (i) persecution against the civilian population (article 7(1)(h) Statute) and (ii) incitement to Genocide (article 25(3)(e) Statute). Firstly, in October 2010, a State policy was designed at the highest level of Arkania State machinery and aimed at terminating any civilian resistance against the regime just established in that State. Thus, the information received indicated that a policy of systematic violence against the civilian population was being perpetrated by the Revolutionary Arkanian Party (RAP), providing a reasonable conclusion 2 that crime of persecution could arise in front of the Court. The civilian population, on political grounds, was the primary object of the attack, which was perpetrated by an organizational policy 3 that started controlling the Government of Arkania. Furthermore, there was a widespread attack, considering that the persecution against undesirable political elements achieved a national level. Even, the discourses that RAP was perpetrating could indicate a direct and public call for genocide, since members of RAP publicly reiterated its political program, on social media and television, which included the extermination of the Capu leaders. RAP did not engage in a vague suggestion 4, but in a direct appeal specifically provoking other people to engage in the criminal act. 2 See ICC-01/09-19, 31/03/2010, para See article 7(3) of the Elements of Crimes. 4 ICTR, AC, The Prosecutor v. Ferdinand Nahimana, Case No. ICTR A, para. 692.

6 Even the discourses perpetrated by Mr. Lona could indicate a potential case of this crime, since they created a violent atmosphere favorable to violence against the Capu 5. The atrocities committed against the civilian population, specially the Capu, were recognized by the Security Council of the United Nations through resolution 7568(2010) only one month after the preliminary examinations proprio motu had started, which reinforces the idea that the situation was serious enough and concerned the international interest. A.2 - THE TWOFOLD REQUIREMENT IN ARTICLE 17 WAS RESPECTED A COMPLEMENTARITY (ARTICLE 17(1)(A) TO (C)) Furthermore, in November 2010, there were no elements that indicated that Arkania was prosecuting or investigating the potential cases 6 in concern. There were no ongoing investigations or prosecutions, and nothing indicated they ever happened in the past. Thus, the analysis of inability and unwillingness does not apply. 7 A GRAVITY (ARTICLE 17(1)(D)) As stipulated in Regulation 29(2) of the Regulations of the Office, the non- exhaustive factors that guide the Office s assessment of gravity include the scale, nature, manner of commission of the crimes, and their impact 8. There was an attack perpetrated by the State against a religious group which constituted 29% of that population, added to a national persecution against the civilian population, which indicates not a peripheral 9 potential case, but sufficiently serious situation to justify further action by the Court. Lastly, there elements indicated that the commencement of formal preliminary examinations would be on the interest of justice See ICTY, TC I, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, para ICC-01/09-19, 31/03/2010, para See AC, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, ICC-01/04-01/ , para See Prosecutor v. Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/ Red, 8 February 2010, paras. 31; ICC-01/09-19-Corr, para. 188; ICC-02/11-14, paras See No.: ICC-02/11-14, 03/10/2011, para. 201 and No.: ICC-01/09-19, 31/03/2010, para No.: ICC-01/09-19, 31/03/2010, para. 63 and, No.: ICC-02/11-14, 03/10/2011, paras. 207 e 208.

7 B. THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION OVER THE CASE Considering that Ms. Minsa is a citizen of Arkania and that the crimes committed by the defendant fall within the jurisdiction of the Court, ICC has jurisdiction ratione loci/personae and ratione materiae over the case. B.1 - JURISDICTION RATIONE TEMPORIS AND THE WITHDRAWAL (ART. 127 ROME STATUTE) The Court was already analyzing the matter in Arkania before the withdrawal could operate any effects, since the Prosecution had started legitimate preliminary examinations. Thus, ICC has jurisdiction ratione temporis over both crimes committed in Arkania. B THERE WAS A MATTER UNDER CONSIDERATION BY THE COURT In accordance with article 34 Statute, the Office of the Prosecution ( OTP ) is an organ of the Court, as much as the Appeals, Trial or Pre-Trial Divisions. The term Court, used in article 127.2, that provides the preservation of ICC s jurisdiction over a matter, must encompass even acts taken solely by the Prosecution, as a preliminary examination. Such an interpretation comprises the spirit of the Statute's preamble. The determination to end the impunity of atrocities is the ideal that must guide the application of article of the Statute. The importance of sovereignty cannot be played by criminals as a tool against the administration of justice. By interpreting "the Court" as the whole criminal international system, the finality of this article to shield ICC's jurisdiction from maliciously motivated withdrawals will be achieved. B ICC HAS JURISDICTION OVER BOTH CRIMES Even considering that the crime against humanity happened after the withdrawal had already operated effects in the territory of Arkania, we respectfully submit it is covered by the jurisdiction ratione temporis. As we can infer from article 127(2) Statute, the withdrawal will not prejudice the continued consideration of a matter. There is a sufficient link between the crimes committed at the State Brain Disorder Research Center (SBDRC) and the matters which were already being considered by the Prosecution before September 2011, namely, the creation of the Presidential Special Force (PSF) and its deployment to cleanse the society of disabled persons. There is a logical progression of violence unleashed by the same political party against the civilian population in general, which lead to the creation of the SBDRC.

8 II. MATERIAL ELEMENTS OF THE CRIMES AND CRIMINAL RESPONSIBILITY A. MS. MINSA FACILITATED THE COMMISSION OF GENOCIDE A.1 - ELEMENTS OF THE CRIME (ARTICLE 6(A)) A OBJECTIVE ELEMENTS There are substantial grounds to believe that the gas vans were used, in the MTF, to murder members of a particular religious group, chosen by reason of their membership to this protective group 11, employing gas inhalation, in accordance with article 6(a) Statute. A SUBJECTIVE ELEMENTS Ms. Minsa not only knew and intended to contribute to the murder members of the Capu (since she is not covered by duress neither self-defense), but, still, aimed to exterminate this group. The special intent can be inferred (i) since she ratified an extremely violent document calling for the extermination of the leading members of the Capu and (ii) from the facts 12 that she kept being a member of the RAP while it was promoting a public incitement and reiterating on several occasions the genocidal idea of the political program. A.2 - FORM OF LIABILITY (ARTICLE 25(3)(C)) Ms. Minsa did abet with the commission of genocide by providing the means for its commission, being responsible for the functional efficiency of the gases and its distribution across the country. Moreover, Ms. Minsa shared the purpose of this group, as already addressed. A.3 - SELF-DEFENCE AND DURESS AS NON-EXONERATING CIRCUMSTANCES (ARTICLE 31(1)(C) AND (D)). In this regard, we respectfully submit that neither self defense nor duress can be alleged in order to exonerate Ms. Minsa s criminal liability. Regarding to the self-defense allegation, the lack of identity between the victims and the supposed aggressor precludes Ms. Minsa from alleging this exonerating circumstance 13. Even, the defendant did not act compelled by duress. Pursuant to article 31(1)(d) Statute, this reasoning can be divided in three different stages. 11 See ICTY, TC, Prosecutor v. Stakic, 31/07/2003, para 521; ICTY, TC, Prosecutor v. Kristic, 02/08/2001, para. 561; ICTY, TC, Prosecutor v. Jesilic, 14/12/1999, para ICTR, TC I, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, para See Kai Ambos, Treatise on International Criminal Law, Volume I: Foundations and General Part, page 338.

9 Firstly, there was no objective, imminent or continuing threat to Ms. Minsa s life. She was a member of RAP and never represented any of its group s targets. The absence of a real threat to her life, besides the fact that she had an important role in the MTF, is reinforced by the finding that when she had misunderstandings with the head of MTF, she was not murdered, but merely relocated to another work center. Thus, there is no evidence of a present threat exercising an overwhelming pressure 14 on Ms. Minsa. The facts presented to this Chamber absolutely indicate the possibility of a moral choice 15 for the defendant at this situation. We additionally submit that, in discordance with article 31(1)(d) Statute, Ms. Minsa did not react necessarily and reasonably in order to avoid the supposed threat. In Prosecutor v. Erdemovic, ICTY s Appeals Chamber concluded that duress can never be alleged by a soldier as an exonerating circumstance where innocent lives are at stake 16. Even though Ms. Minsa is a civilian, this reasoning applies to her situation, since even the lowest requirement for resistance does not legitimate the commission of genocide for almost one year continually. Thirdly and lastly, the defense of duress is not available where the party seeking to invoke it was, herself, responsible for the existence or execution of such order. This submission is even clearer in the french version Statute of article 31(1)(d)(ii): circonstances independantes de sa volonté. Ms. Minsa decided to joint and stay at a violent military group 17, so that she could foresee the order to commit an illegal act. As held by IMT, on United States v. Ohlendorf, One who embarks on a criminal enterprise of obvious magnitude is expected to anticipate what the enterprise will logically lead to Id, page See Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits, 62 S. CAL. L. REV. 1331, 1339 (1989). 16 ICTY, AC, Prosecutor v. Erdemovic, Case No. IT-96-22A, para See Kai Ambos, Treatise on International Criminal Law, Volume I: Foundations and General Part, page IMT, United States v. Ohlendorf, page 481.

10 B. MS. MINSA CONTRIBUTED TO THE COMMISSION OF A CRIME AGAINST HUMANITY B.1 ELEMENTS OF THE CRIME B.1.1 THERE WAS A WIDESPREAD AND SYSTEMATIC ATTACK The attack was systematic because it had a specific target, within the civilian population, and, thus, the individuals were not randomly selected 19. Furthermore, the attack was widespread because there was a multiple commission 20 of the atrocities. Until the moment, there are 320 known cases of human tests in Arkania, which resulted in the death of 80 people. Lastly, it is important to highlight that those requisites ( widespread or systematic ) are disjunctive 21 even though both requisites are present at this case. B OBJECTIVE ELEMENT: OTHER INHUMANE ACTS Ms. Minsa, by participating on the activities of the State Brain Disorder Research Center, which included drug-epileptics induction without subsequent treatment, resulting in death on the proportion of 25%, inflicted great suffering and serious injury to body and mental health by means of inhumane acts, being part of a greater attack. B SUBJECTIVE ELEMENTS Ms. Minsa s contribution was intentional and, as held by ICC on Prosecutor v. Callixte Mbarushimana 22, the form of liability in which she incurs only requires the knowing of the groupperpetrator s intentions, and not the sharing. B.2 CO-PERPETRATION B THE RETRACTION OF THE FORM OF LIABILITY ON ARTICLE 25(3)(A) The elements of proof that were obtained since January 2015 and the Confirmation of Charges audience lead the Prosecution to withdraw the form of liability contained on article 25(3)(a) Statute. The Prosecution does not possess sufficient elements of proof, until this moment, to establish substantial grounds to believe Ms. Minsa had joint control over the crime and was essential in order to frustrate its commission ICTY, Trial Chamber II, Prosecutor v. Fatmir Limaj, 30/11/2005, Case No.: IT T, para See Elements of Crimes, article 7(3). 21 See No.: ICC-01/09-19, 31/03/2010, para PTC I, Decision on the confirmation of charges in the case of The Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10, 16/12/2011, para See No. ICC-01/04-01/ tEN, 14/05/2007, para. 342.

11 B.2.2. MS. MINSA INCURRED ON THE FORM OF LIABILITY OF ARTICLE 25(3)(D) On the other hand, the contribution of Ms. Minsa can be perfectly filled by the form of liability contained in article 25(3)(d) Statute. This form of liability entails three objective and two subjective elements, as held by the Court on the case Mbarushimana 24. Regarding to the objective requirements, we observe that (i) a crime within the jurisdiction of the Court was being committed, as already advanced; (ii) the criminal group carried out a common purpose and (iii) Ms. Minsa contributed to the crime in a significant way, other than those set out in article 25(3)(a) to (c). In order to analyze the level of contribution in this issue, ICC held that there are standards that can be observed 25. Ms. Minsa complies with various of those standards, since (i) she sustained her contribution for a long time (more specifically, for almost for 03 years) even knowing about the effects of those experiments; (ii) she did no efforts to prevent the criminal activity; (iii) and, most importantly, she played an essential role with respect to the scope of the crimes committed. This because the objective to be achieve with those human experiments was to provide breakthrough insights on the medicines, and, for that objective, her contribution was very important, since she had the necessary expertise. The analysis of the level of contribution, thus, has the aim to prevent the Court from judging very minimum levels of assistance on those crimes 26, which is absolutely not the case for Ms. Minsa. Moreover, ICC concluded that it is possible that the contributions under article 25(3)(d) happen after the crimes have in fact have occurred, the exact context of this case, so long as the contribution had been agreed upon by the relevant group (...) and the defendant 27. Furthermore, as already explored, the two subjective elements required for this form of liability are filled. (i) The contribution was intentional and (ii) she knew about RAP s criminal intentions, in accordance with article 25(3)(d)(ii). B.3 - THE CODE OF MEDICAL ETHICS AS A NON-EXONERATING CIRCUMSTANCE Lastly, Ms. Minsa cannot allege the existence of a Code of Medical Ethics as an exonerating circumstance. It is important to establish that the Principles that guide medical research involving human subjects, which were firstly established on the post-nuremberg era, have turned into 24 PTC I, Decision on the confirmation of charges in the case of The Prosecutor v. Callixte Mbarushimana, No. ICC- 01/04-01/10, 16/12/2011, para No. ICC-01/04-01/10, 16/12/2011, para No. ICC-01/04-01/10, 16/12/2011, para No. ICC-01/04-01/10, 16/12/2011, para

12 customary law 28. After more than 50 years of progress, these rules are set as: i) a general practice ii) accepted as law by States. The WMA's Declaration of Helsinki (DoH), has been embodied in national and international instruments, laws, regulations and other non-binding texts of countries like Australia, China, Germany, Israel, Japan, New Zealand, Norway, Uganda and many others 29. The experiments were against the Principles on several points. Firstly, by targeting people with mental and physical disabilities 30 because they were considered inferior. Secondly, it is not clear that there was consent or authorization of the responsible 31. Thirdly, the subjects were left without treatment to the symptoms provoked and the research promoted a 25% death rate. This frontally contradicts medical responsibility to minimize possible harm to the environment UN, Statute of the International Court of Justice, Article HUMAN, Delon and FLUSS, Sev. The World Medical Association's Declaration of Helsinki: Historical and Contemporary Perspectives. 30 Paragraph 20 of DoH. 31 Convention on Human Rights and Biomedicine, article DoH, Paragraphs 8 and 11.

13 III. GROUNDS FOR CONFIRMATION OF CHARGES A. THE REQUIREMENTS FROM ARTICLE 17 ARE FILLED The facts indicate that, until the present moment, the State of Arkania or any other State that would normally exercise jurisdiction over the facts are not investigating neither prosecuting these facts. Furthermore, the gravity requirement concerning to the admissibility of charges against Ms. Minsa is filled in this case. As held by the Court, there is no limit on the kinds of defendant who meet this threshold and, thus, grave cases are not restricted to crimes committed by senior leaders 33. B. THE EVIDENTIARY THRESHOLD FROM ARTICLE 61(7) IS MET With basis on all the exposed, we submit there is consistent basis to meet the evidentiary burden of the substantial grounds to believe, since the Prosecution has demonstrated a clear line of reasoning underpinning each allegation and as presented concrete and tangible proof 34. Consequently, and considering the ICC has jurisdiction over this case, the charges presented against the defendant must be confirmed, so that the evidences can be deeply analyzed by the Chamber on Trial. 33 See, Case No. ICC-01/04-01/06, 10/02/2006 and annex I, paras.73 79; Case No. ICC-02/05-02/09, 08/02/2010, paras Case No. ICC-01/09, 31/03/2010, paras See No.: ICC-01/04-02/06, 09/06/2014, para 9; ICC- 01/05-01/08-424, 15/06/2009, para. 29; ICC-01/09-02/ Red, 23/01/2012, para. 52; ICC-02/11-01/11-432, 03/06/2013, para. 17.

14 IV. CONCLUDING SUBMISSIONS Wherefore in light of the questions presented, arguments advanced and authorities cited, the Prosecution respectfully requests this Court to confirm, in accordance with article 61(7)(a) Statute, the following counts against Ms. Minsa: I. Facilitation of the commission genocide under articles 6(a) and 35(3)(c) Statute; II. Contribution to the commission of a crime against humanity under articles 7(1)(k) and 25(3)(d) Statute; On Behalf of the Prosecution

15 NUREMBERG MOOT COURT COMPETITION The Defense Counsel Team Number: 4 Year: 2015 Total Word Count: 3.497

16 SUMMARY OF ARGUMENTS I. PROCEDURAL MATTERS A. THE LACK OF JURISDICTION DUE TO THE WITHDRAWAL A.1 - THE ABSENCE OF A MATTER UNDER THIS COURT S APPRECIATION (ARTICLE 127(2) STATUTE) UNTIL SEPTEMBER 2011 A.2 - THERE IS NO LINK BETWEEN THE CHARGES OF CRIMES AGAINST HUMANITY AND THE COMMENCEMENT OF THE INVESTIGATION B. PROSECUTOR S ABUSE OF AUTHORITY IN PROPRIO MOTU INVESTIGATION B.1 - THERE WERE NO REASONABLE BASIS TO COMMENCE INVESTIGATIONS IN DISCORDANCE WITH 53(1)(A) STATUTE B.2 - THE PROPRIO MOTU INVESTIGATION DID NOT RESPECT THE PRINCIPLE OF COMPLEMENTARITY (ARTICLES 17(1)(A) AND 53(1)(B) STATUTE) B.4 - CONSEQUENCES OF THE ABUSE OF AUTHORITY AND THE IMPOSSIBILITY OF ADMITTING THE EVIDENCES OBTAINED IN ACCORDANCE TO ARTICLE 69(7)(B) STATUTE II. THE LACK OF SUBSTANTIAL GROUNDS TO CONFIRM CHARGES AGAINST MS. MINSA A. THE ABSENCE OF GROUNDS FOR GENOCIDE A.1- DURESS AS A GROUND FOR EXCLUDING CRIMINAL RESPONSIBILITY B. THE ABSENCE OF GROUNDS FOR CRIMES AGAINST HUMANITY B.1 - THE COMPLIANCE OF THE CONDUCTS WITH THE CODE OF MEDICAL ETHICS B.2 - THE INADEQUACY OF THE CRIMINAL LIABILITY UNDER ARTICLE 25(3)(A) STATUTE B.3 - THE INADEQUACY OF THE CRIMINAL LIABILITY UNDER ARTICLE 25(3)(D) STATUTE III. GROUNDS FOR ADMISSIBILITY OF CHARGES A. THE LACK OF THE GRAVITY REQUISITE IN THE CASE UNDER ARTICLE 17(1)(D) STATUTE IV. SUBMISSIONS 2

17 INTRODUCTION It is better to risk saving a guilty person than to condemn an innocent one. (Voltaire) The present case shows up as a real emblematic situation, by which we can analyze series of procedural irregularities taken by the Prosecutor during the beginning of the investigations that lead us to this case. Besides that, we shall observe that Ms. Minsa was just an ordinary person, victim of a bigger plain perpetrated by RAP and its main leaders. Thus, the present case must not be admitted by this Court in respect with art. 61(7)(b) Statute. 3

18 I. PROCEDURAL MATTERS A. THE LACK OF JURISDICTION DUE TO THE WITHDRAWAL A.1 THE ABSENCE OF A MATTER UNDER THIS COURT S APPRECIATION (ARTICLE 127(2) STATUTE) UNTIL SEPTEMBER 2011 After the presidential elections, the State of Arkania decided on withdrawing its membership from the Rome Statute (Statute). Before the vacancy period of ICC s jurisdiction, there was no matter under appreciation of the Court, and, thus, the retaining of jurisdiction provided in art. 127(2) Statute does not apply to this case. The facts indicate that, before September 2011, the only procedural step related to ICC was taken solely by the Prosecution, which, acting with abuse of authority, decided to commence preliminary examinations on November At this procedural stage, the Office of the Prosecutor (OTP) does not even enjoy full investigative powers, but merely gathers more additional information regarding to a situation 1. Given that the Chamber had no contact with that matter, it is impossible to argue that there was a matter under consideration by the Court. The decision on commencing preliminary examinations is not even subjected to the Chamber s review, and such a superficial contact with the facts, which is not even taken by the Decision-Making Organ of ICC, cannot be considered to fill the requirement from article Hence, this Court has no jurisdiction over the present case. A.2 - THERE IS NO LINK BETWEEN THE CHARGES OF CRIMES AGAINST HUMANITY AND THE COMMENCEMENT OF THE INVESTIGATION Even if it was considered that there was a matter under consideration by the Court at the time, such matter would not encompass any crime against humanity. The investigation started in concern to eventual attacks 2 perpetrated against the Capu community, which is the only group that could be allegedly targeted before November The supposed crime on the State Brain Disorder Research Center (SBDRC) was placed against a different group, for different purposes. Therefore, it would not be sufficiently linked 3 with the situation that gave rise to the beginning of the investigation. 1 Policy Paper on Preliminary Examinations, ICC-OTP November 2013, para See Pre-Trial Chamber III, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Côte D Ivoire, No.: ICC-02/11-14, 03/10/2011, para See Decision on the Prosecutor's Application for a Warrant of Arrest against Callixte Mbarushimana, 28/09/2010, ICC-01/04-01/

19 B. PROSECUTOR S ABUSE OF AUTHORITY IN PRELIMINARY EXAMINATIONS The Prosecutor did not observe the legal framework for the commencement of a preliminary examination, contained in article 53(1) Statute 4. Furthermore, the facts indicate that between November 2010 and January 2015, the Prosecution did not submit a request for authorization for the commencement of an investigation 5, with basis on the reasonable basis to proceed standard. The lack of authorization for the commencement of the investigation is an omission that damages the entire procedure and specially the credibility of the evidences obtained by its means 6. B.1 THERE WERE NO REASONABLE BASIS TO COMMENCE INVESTIGATIONS IN DISCORDANCE WITH 53(1)(A) STATUTE In November 2010, in Arkania, there was no potential case 7 of any crime within this Court's jurisdiction. The political rivalry developed after the presidential elections did not indicate sufficient elements to infer that any of the crimes listed in the article 5 Statute would be potentially committed. Judge Hans-Peter Kaul, in its dissent vote in the Decision on the Authorization of an Investigation into the Situation in the Republic of Kenya 8, emphasized the difference between international crime of concern to the international community as whole, for which ICC is the appropriate forum and the common crimes, albeit of serious nature, that must be prosecuted by the national systems. While situation in Kenya, also shaped after elections, had already caused the death of at least a thousand of persons, followed by the physical injury of more than 3,500 persons approximately 350,000 persons displaced 9, in Arkania the situation was limited to speeches related to an economic crisis and civil protests with no injuries. Therefore, the situation, in November 2010, did not indicate a potential case of interest of this Court. 4 ICC-OTP November 2013, para See article 15(4) Statute and Rule See article 69(7)(b) Statute. 7 No.: ICC-02/11-14, 03/10/2011, para. 24 and No.: ICC-01/09-19, 31/03/2010, para ICC-01/09-19, Dissenting Opinion of Judge Hans-Peter Kaul, 31/03/2010, para ICC-01/09-19, para

20 B.2 - THE PROSECUTION DID NOT RESPECT THE PRINCIPLE OF COMPLEMENTARITY (ARTICLES 17(1)(A) AND 53(1)(B) STATUTE) AND THE SITUATION LACKED ON GRAVITY Apart from the lack of jurisdiction and reasonable basis, article 53(1)(b) was disregarded, as the investigation did not consider the issues of admissibility under article 17 Statute. The investigation started merely one month after the civilian hostilities took place, which impeded Arkania from proceeding with its own investigations. Comparatively, the proprio motu investigation on the situation of Kenya started only on 31 March 2010, while the conducts happened from June 2005 to November The inaction of Kenya was certain, as almost five years have passed from the beginning of the occurrences and the commencement of the investigations. This is not the case for Arkania. Moreover, the Prosecutor did not notify the State of Arkania about the beginning of the investigation, in discordance to article 18 Statute. Thus, as the investigation in the present case was premature and unmotivated, it was impossible to determine eventual inaction of Arkania on investigating the situation. B.3 - THE SITUATION LACKED ON GRAVITY UNDER ARTICLE 17(1)(D). Even if the Chamber considers there is a potential case for any crime under the jurisdiction of this Court, the quantitative and qualitative requisites 11 under article 17(1)(d) Statute, which concerns to the sufficient gravity of the situation, were not fulfilled. At November 2010, there was not a sufficient context of violence against neither the Capu, nor the civilian community. The complete lack of casualties and physical aggression, before November 2010, indicate a case that would be peripheral 12 in front of the Court. B.4 - THE IMPOSSIBILITY OF ADMITTING THE EVIDENCES OBTAINED IN ACCORDANCE TO ARTICLE 69(7)(B) STATUTE As a consequence of the abuse of authority, the investigation as a whole is compromised. The provisions stipulated in order to restrict the Prosecutor s investigative powers are not merely concern of procedure. By ratifying the Statute, Arkania agreed on its submission to the jurisdiction of ICC whereas the rules and regulations set by the Statute were respected. 10 ICC-01/09-19, para PTC I, Decision on the Confirmation of Charges, No.: ICC-02/05-02/ Red, 08/02/2010, para See No.: ICC-02/11-14, 03/10/2011, para. 201 and No.: ICC-01/09-19, 31/03/2010, para

21 Thus, the evidences presented to support this case must not be admitted by this Court, with respect to the article 69(7)(b) Statute, since they were obtained with by means of the violation of this Statute and compromise the very integrity of this proceeding. 7

22 II. THE LACK OF SUBSTANTIAL GROUNDS TO CONFIRM CHARGES AGAINST MS. MINSA A. THE ABSENCE OF GROUNDS FOR GENOCIDE The prerequisites for the commission of genocide were not met, as it will be demonstrated. Ms. Minsa was also a potential victim of the Revolutionary Arkanian Party (RAP) hostilities and cannot be held liable for its crimes. Respectfully, this Defense withdraws from the self-defense submission, since there is no identity between the victims and the one aggressors concerning to this topic. A.1 - DURESS AS A GROUND FOR EXCLUDING CRIMINAL RESPONSIBILITY Ms. Minsa acted under duress and, thus, has no criminal responsibility for acts taken in the MTF, since: (i) she faced a threat of imminent death; (ii) her acts were necessary and reasonable to avoid the threat and (iii) she was not responsible for the threat situation 13. Firstly, there was an objective threat to Ms. Minsa s life. At that time, the targets of RAP were no longer limited to the Capu community, since the PSF had already been deployed to "cleanse the society" from all "politically undesirable elements". The situation in Arkania had escalated in such way that all persons who opposed the regime could be qualified as targets. Due to this situation not even Ms. Minsa, who once supported RAP, could consider herself safe. Thus, the threat of Ms. Minsa s life existed on a subjective and objective perspective. It existed subjectively, since she was aware of circumstances beyond her control that could harm her. It also existed objectively because there were sufficient chances that her refusal to take the position in the MTF would cause such consequences. Hence, all conducts taken by Ms. Minsa fill the first element required by the duress defense and thus, she had no moral choice 14 of refusing to collaborate with RAP. The impossibility of using other means to avoid such situation is also met. Ms. Minsa had never occupied a commander position inside RAP s hierarchy. The defendant was an ordinary person and as such, could only be held accountable for conducts expected from every other regular person. It lacks on reasonableness to expect that a regular person should rebel against RAP and risk to be murdered as an undesirable political element. As held by the Judges McDonald and Vohrah, at their Separate Opinion, on the case 13 As set on Article 31(1)(d) Statute. 14 See Kai Ambos, Treatise on International Criminal Law, Volume I: Foundations and General Part, page

23 Prosecutor v. Erdemović, the requirement for resistance for a civilian is lower if compared to a soldier 15. Thus, she acted according to the necessity to avoid the harm. Secondly, Ms. Minsa acted reasonably and necessarily. In accordance with the dissenting votes of Judge Casesse 16 and Judge Stephen 17 on Erdemović s case, the proportionality analysis is strictly connected with the idea that the crime would be committed no matter what. This because there is no balance of a life on the expense of others, but merely a choice between dying or not dying while the crime would be committed anyway by the perpetrator group. This is exactly what we observe in this case. Ms. Minsa's hypothetical refusal from working in the Medical Task Force would not have prevented the genocide from occurring, since she was a fungible and unnecessary part on the genocidal plan. The harm caused would be the same and she would have subjected herself to the threat of being another victim. Lastly, Ms. Minsa did not place herself into the threat situation. Even though Ms. Minsa ratified the political program in 2006, it did not anticipate all the political and social consequences of the election of Mr. Gome. The escalation of violence was not planned on the document, which did not predict the elimination of the Capu as a whole. Thus, Ms. Minsa is not criminally responsible for the charges of genocide within article 31(1)(d) Statute, since her acts were motivated by an objective and imminent threat to her life. B. THE ABSENCE OF GROUNDS FOR CRIMES AGAINST HUMANITY B.1 - THE COMPLIANCE OF THE CONDUCTS WITH THE CODE OF MEDICAL ETHICS Firstly, the Court shall observe that Ms. Minsa s objective conducts did not constitute other inhumane actions, nor did they cause any suffering or injuring to the persons involved at the research. Ms. Minsa was responsible for the autopsy of the deceased persons and in particular, the removal of the brain for scientific research purposes. Her access to the experiment was limited to the study of organs of corpses, which does not constitute an inhumane act 18 and is permitted by the Code of Medical Ethics of Arkania. 15 ICTY, AC Decision, No.: IT-96-22, Joint Separate Opinion of Judge McDonald and Judge Vohrah, 07/10/1997, para No.: IT-96-22, Separate and Dissenting Opinion of Judge Cassese, para No.: IT-96-22, Separate and Dissenting Opinion of Judge Stephen, para See ICTY, Prosecutor v. Tadic, TC, para

24 The national Code of Medical Ethics is the only instrument applicable to Arkania given that the State is not abided to any international instrument on the issue of bioethics. As a matter of fact, there is still no international consensus over the limits of scientific research with human subjects, as UNESCO acknowledged on Even if international soft law instruments over the matter 20 were to be taken into consideration, Ms. Minsa should not be held accountable for the selection of subjects to the study, nor the medication given, since she could not interfere on such aspects of the experiment. B.2 - THE INADEQUACY OF THE CRIMINAL LIABILITY UNDER ARTICLE 25(3)(A) STATUTE Ms. Minsa was only responsible for the autopsy of the deceased, which is not a crime under the Statute. She cannot be held responsible for the whole experiment as a crime against humanity because her conducts do not meet the elements held in the case Prosecutor v. Thomas Lubanga Dyilo 21 as necessary for co-perpetration form of liability based on the joint control over the crime. Ms. Minsa had no potential of frustrating the commission of the medical experiment in the SBDRC by not performing her tasks. Her contribution was not essential to the crime, thus failing the second objective element. Furthermore, Ms. Minsa does not fulfill the mental elements required by the coperpetration. Although aware of the test-persons selection and drug-inducing experiments, she did not mean to cause such consequences to that persons, nor she coadunate with the main-perpetrator s intent. The other two subjective elements are neither present. Once Ms. Minsa did not share the intent of committing the crime with the main perpetrators, it is illogical to say that there was a mutual agreement - acceptance - about such plan, or, even, joint control over its execution. B.3 - THE INADEQUACY OF THE CRIMINAL LIABILITY UNDER ARTICLE 25(3)(D) STATUTE This Court has established in Prosecutor v. Callixte Mbarushimana 22 the elements which must be observed for contribution under article 25(3)(d). As the non-compliance with any of the elements is already sufficient to impede the recognition of this form of liability, it will be demonstrated that the third objective element set was not fulfilled. 19 IBC. SHS/ETS/02/CIB-9/5. Report of the IBC on the Possibility of Elaborating a Universal Instrument on Bioethics. Paris, 13 June Such as the Nuremberg Principles (1948), the Declaration of Helsinki (1964), the International Ethical Guidelines for Biomedical Research Involving Human Subjects (1992) and the Universal Declaration on Bioethics and Human Rights. 21 PTC I, Decision on the Confirmation of Charges, No.: ICC-01/04-01/06, 29/01/2007, para ICC-01/04-01/10, para

25 This point concerns to the existence of a significant contribution that happens in any other way than those set in article 25(3)(a) to (c) Statute. Inside this objective element, it must be addressed whether Ms. Minsa s conducts were significant as a part of the criminal context, since it is known that not any infinitesimal contribution 23 must be criminally liable. The Court stipulated 24 some points to determine the level of contribution of a conduct, such as: (i) any efforts made to prevent criminal activity or to impede the efficient functioning of the group's crimes, (ii) whether the person creates or merely executes the criminal plan, (iii) the position of the suspect in the group or relative to the group and (iv) the role the suspect played vis-à-vis the seriousness and scope of the crimes committed. Referring to such points, the defense submits that: (i) Ms. Minsa did efforts to prevent the criminal activity, since she showed resistance to RAP s actions by having a dispute with the head of MTF; (ii) she merely executed the criminal plan, she had no power over others that could prevent them from committing such conducts with the selected test-persons, nor she had any influence over the criminal plan developed on the research centers (iii) According to her position, she had a very low significance, being a medical assistant only responsible for the autopsy of the deceased persons and (iv) she was a fungible instrument RAP was using through coercion in order to achieve its greater plan. Thus, we submit that neither of the forms of criminal liability are adequate for the conducts of Ms. Minsa in concern to the charges of crimes against humanity. 23 ICC-01/04-01/10, para ICC-01/04-01/10, para

26 III. GROUNDS FOR ADMISSIBILITY OF CHARGES A. THE LACK OF THE GRAVITY REQUISITE IN THE CASE UNDER ARTICLE 17(1)(D) STATUTE It is known that during the Statute development, article 17(1)(d) held that the crime should be of sufficient gravity, but such term was later replaced by the word case 25, which to the understanding that during the admissibility of charges, it is necessary the analysis of the defendant s individual conducts inside the criminal context, not the criminal context itself. Thus, the mere existence of a core crime is not enough to justify this Court s action. The gravity criterion is brought so the Court may focus its resources on the investigation and prosecution of the main responsible for the crimes. It prevents the Court from analyzing peripheral cases. For a comparative analysis, in the case Prosecutor v. Paško Ljubičić 26, ICTY held that the conduct of a military commander, responsible for the planning and executing a series of attacks against Bosnian Muslim population which caused the death of 100 civilians, torture of a high number of men and the destruction of villages -, were not of the gravity degree required by the Court to prosecute him. Ms. Minsa s level of contribution concerning the crimes here analyzed was of the lowest standards. She was a subordinate following superior s orders, a non-essential tool to crimes that would have occurred either with or without her. By not filling the gravity requisite, brought under article 17(1)(d), this Court must determine this case inadmissible. 25 ICC-01/04-01/10, 16/12/2011, para Referral Bench, Decision to Refer the Case to Bosnia and Herzegovina pursuant to Rule 11bis, No.: IT PT, 12/04/2006, para

27 IV. PLEADINGS Respectfully, this Defense Counsel submits that this Court shall determine that the present case is inadmissible due to the lack of jurisdiction in respect to the withdrawal. Specially about the charges related to crime against humanity. The evidences obtained by the proprio motu investigation shall not be admitted, in respect to the article 69(7)(b) of the Statue, once they were obtained in discordance with the Statute, damaging the integrity of this procedure. There are no reasonable grounds for charging Ms. Minsa for the crime of genocide, because her conducts were under duress, in accordance with article 31(1)(d) Statute. There are no reasonable grounds for charging Ms. Minsa for committing crimes against humanity, because her participation was so insignificant, that neither the forms of criminal liability brought under article 25(3)(a) and 25(3)(d) are adequate, and also because the compliance of the experiments with the Code of Medical Ethics made Ms. Minsa believe that the conducts taken by her were legal. The present case lacks on gravity. And finally, it must observed that the confirmation of the present charges will not allow this Court to reach its main objective, which concerns to the effective prosecution of the most serious crimes that ravages the world, because since the first moment we are dealing with a mere piece inside of someone else's bigger plain. For all those reasons, the Court must determine the present inadmissible, in accordance to the art. 61(7)(b) of the Statute. 13