[COVER PAGE] TEAM TEN (10) DEFENCE COUNSEL PACE INTERNATIONAL CRIMINAL COURT TRIAL COMPETITION 2011

[COVER PAGE] TEAM TEN (10) DEFENCE COUNSEL PACE INTERNATIONAL CRIMINAL COURT TRIAL COMPETITION 2011 1

PACE INTERNATIONAL CRIMINAL COURT TRIAL COMPETITION WHITE PLAINS, NY 28 JANUARY 2011 30 JANUARY 2011 IN THE CASE OF THE PROSECUTOR v. JOHN EVANS DEFENCE MEMORIAL IN PREPARATION FOR THE CONFIRMATION HEARING OF JOHN EVANS TO BE HELD ON 17 MAY 2019. 2

TABLE OF CONTENTS LIST OF ABBREVIATIONS... 4! INDEX OF AUTHORITIES... 5! STATEMENT OF FACTS... 7! A.! Substantive Facts... 7! B.! Procedural History... 8! ISSUES BEFORE THE COURT... 10! I. Whether the Court may exercise jurisdiction over the case against Mr. Evans;... 10! II. Whether the arrest and ensuing detention of Mr. Evans was improper; and... 10! III. Whether victims B01 B20.000, through their sole legal counsel, have any right to participate in the proceedings against Mr. Evans.... 10! SUMMARY OF ARGUMENTS... 11! JURISDICTION OF THE COURT... 12! WRITTEN ARGUMENTS... 13! SUBMISSIONS... 28! CERTIFICATION... 29! 3

LIST OF ABBREVIATIONS 3314 United Nations General Assembly Resolution 3314 (XXIX) Amendments Amendments to the Rome Statute for the Crime of Aggression art. Article arts. Articles Clarifications Questions / Clarifications for the ICC Trial Competition Court Pre Trial Chamber 6 of the International Criminal Court GCs The Geneva Conventions of 12 August 1949 ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia ILC International Law Commission p. Page pp. Pages pmbl. Preamble R. Record Registrar Registrar of the Court Regulations Regulations of the Court Rome Rome Statute of the International Criminal Court RPE Rules of Procedure and Evidence of the International Criminal Court UDHR Universal Declaration of Human Rights UN United Nations UNGA United Nations General Assembly UNSC United Nations Security Council 4

INDEX OF AUTHORITIES I. International Criminal Court Statutes, Rules, and Regulations The Amendments to the Rome Statute for the Crime of Aggression, 11 June 2010. The Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90, 1 July 2002. The Regulations of the Court, ICC-BD/01-01-04, May 26, 2004. The Rules of Procedure and Evidence, ICC-ASP/1/3, 2000. II. Case Law Prosecutor v. Lubanga, 47 I.L.M. 972, Appeals Chamber: Decision on Victim Participation (11 July 2008). Prosecutor v. Dyilo, ICC-01/04-01/06 8, Decision on the Prosecutor s Application for Warrant of Arrest (10 February 2006). Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06-925,"Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the 'Directions and Decision of the Appeals Chamber' of 2 February 2007'" (13 June 2007). Prosecutor v. Nikolic, IT-940-AR73, Decision on Interlocutory Appeal Concerning the Legality of Arrest (5 June 2003). Prosecutor v. Dario Kordic & Mario Cerkez, Judgment, Case No. IT-95-14/2-T (26 February 2001). X. Ltd. And Y. v. United Kingdom, App. No. 8710/79, 28 Eur. Comm n H.R. Dec. & Rep. 77 (1982). III. The Record and Other Miscellaneous Documents Antonio Cassesse, International Criminal Law 41-43 (2d ed. 2008) Benjamin B. Ferencz, Enabling the ICC to Punish Aggression, 6 WASH. U. GLOB. STUD. L. REV. 551, 555 (2007). BLACK'S LAW DICTIONARY (9th ed. 2009). Claus Kreb, Definition of Concept of Legality, MAX. PLANCK (2010). Christoph J.M. Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE 285-86, 308, 371, 375 (Oxford ed. 2001). ICLN, Facts and Procedural History, 2011. [hereinafter R. ]. ICCPR, opened for signature 19 Dec. 1966, 999 U.N.T.S. 171, (entered into force 23 Mar. 1976) 5

Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, 8 11 June 2006, in Assembly of States Parties, 5th session 2006, Doc ICC- ASP/5/SWGCA/INF.1 (5 Sept. 2006), at paras 18, 20 cited in Andreas Paulus, Second Thoughts on the Crime of Aggression, 20 E.J.I.L 1117, 1121 (2009). Jonathan Doak, Participatory Rights for Victims of Crime: In Search of International Consensus, 15 CANCRIMLR 43, 52 (2010) Kenneth S. Gallant, THE PRINCIPLE OF LEGALITY IN INTERNATIONAL AND COMPARATIVE LAW 241 (2009). UDHR, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (10 Dec. 1948). United Nations Convention on the Law of the Sea, art. 3, Dec. 10, 1982, 1833 U.N.T.S. 397. Shaw, INTERNATIONAL LAW, 6th ed. (Cambridge: Cambridge University Press, 2008) at 279. 6

STATEMENT OF FACTS A. Substantive Facts 1. Ulva, a nation with a democratic government and a parliament, has a long history of tension with the neighboring coastal nation of Brisk. (R. 2). Ulva has a large coastline with five seaports. (R. 2). While Brisk has a comparatively small coastline, it contains one major port in the city of Gyst. (R. 2). The record is silent as to the existence of or number of smaller ports in Brisk. The coastline of Brisk is a disputed territory, even though it is claimed by Ulva. (R. 2). Regarding the disputed territory, seventy percent of the residents are of Briskan ethnicity, while the record is silent as to their nationalities. (R. 2). 2. Ulva has become concerned with Brisk s recent increase in military activity. (R. 2). Specifically, the port of Gyst is currently being used to strengthen Brisk s navy, and Brisk has recently received arms deliveries from superpowers. (R. 2, 5). Despite their growing tensions, both Brisk and Ulva are parties to the United Nations ("UN") and major human rights treaties. Moreover, in 2004, both States became State parties to the Rome Statute and have not lodged any declarations within the meaning of Rome art. 15 bis(4). (R. 1). 3. Ulva s political structure is as follows: in July 2016, the New Democratic Party (NDP), one of two parties that collectively comprise the majority in Parliament, won the legislative elections. (R. 3). Mr. John Evans became the NDP leader and Mr. Benny Thompson, became Ulva s new president. (R. 3). While Mr. Evans role as the NDP leader in parliament was an influential one, he neither was, nor is, an official part of the Ulvan government. (R. 4). In addition to winning the 2016 elections, the NDP now occupies thirty percent of the seats in Ulvan parliament, while the Freedom Party (FP) occupies twenty one percent of the parliamentary seats. (R. 4). As such, the NDP and FP collectively constitute a majority in parliament, however the record is silent as to the sole majority party in the Ulvan Parliament (R. 4). 4. Since the July 2016 elections, the relationship between Ulva and Brisk has continued to deteriorate, in part due to the arrest and indictment of President Thompson s two sons in Brisk based on allegations of sexual abuse of minors. (R. 5). 5. Finally, and at issue, on 12 February 2018, pursuant to art. 73 of the Ulvan Constitution, the Ulvan Government authorized the entry of a fully-armed fleet into the territorial waters of 7

Brisk in order to prevent any and all ships from entering or exiting the port of Gyst. (R. 6, 7). This blockade was supported by the Ulvan Government, and the government ultimately contended that the conflict between Brisk and Ulva fell short of the constitutional meaning of war. (R. 6, 9). Although art. 73 of the Ulvan Constitution requires approval by a two-thirds majority of Parliament for a declaration of war to be issued and the opposition parties requested a vote, the Ulvan government ultimately did not vote on the issue. (R. 9). 6. While Mr. Evans publicly endorsed the Ulvan Government s position regarding the conflict with Brisk in the media and through public speeches, he continued to remind the public that the decision concerning the blockade was a decision reserved not for him, but for the Ulvan Government. (R. 10). 7. As a result of the blockade, from February 2018 until the date of the Confirmation Hearing on 17 May 2019, no ships entered or exited the port of Gyst. (R. 9). While the blockade remains the only hostile act between the two States, Brisk claims its population has suffered heavily as a result. (R. 7). B. Procedural History 8. On 12 May 2018, the ICC Prosecutor announced his decision to initiate a proprio motu investigation into the Brisk Ulva conflict, and on 15 May 2018, the Prosecutor notified the UN Secretary General of the situation before the Court per Rome art. 15 bis(6). (R. 11). 9. On 1 April 2018, the UN Security Council ("UNSC") unanimously voted that the blockade of the port of Gyst amounted to a breach of and threat to international peace and security. (R. 12). However, the UNSC has at no time made a determination as to whether the Ulvan Government committed an act of aggression. (R. 12). 10. On 11 November 2018, the date at least six months after the UNSC's inconclusive decision, the Prosecutor requested authorization from this Chamber to proceed with an investigation into the alleged crime of aggression, pursuant to Rome art. 15 bis(8). (R. 13). On 11 December 2018, the Prosecutor was granted authorization to proceed with the investigation into the alleged crime of aggression. (R. 13). 11. Based upon the results of the investigation, the Prosecutor applied for an arrest warrant for Mr. Evans on 15 January 2019. The application was honoured and the arrest warrant was issued on 15 February 2019. (R. 14, 16). The Prosecutor alleged in the application for the 8

arrest warrant that from 12 February 2018 onwards, Mr. Evans as political leader of the NDP along with others, committed the crime of aggression per Rome art. 8 bis and Rome art. 25(3)(a). (R. 14). Specifically, the Prosecutor submitted as evidence that Mr. Evans, as leader of major political party had effective control and failed to take the necessary and reasonable steps to alter Government decision-making. (R. 15). The arrest warrant instructed Ulva and all State parties to the Rome Statute to cooperate with the ICC in the arrest and surrender of Mr. Evans. (R. 16). On 19 February 2019, President Thompson stated publicly that Mr. Evans, as a member of parliament, enjoyed diplomatic immunity and could therefore not be arrested and surrendered to the ICC. (R. 17). 12. Mr. Evans was arrested on 28 February 2019. (R. 19). A day prior, Mr. Evans visited a casino bordering both Konera, a Non-State party to the ICC, and Arduum, a State party. While Mr. Evans was lawfully in a Koneran bar and cooperative, private casino security officers forcibly took him across the border and into Arduum. (R. 19). Following an identity check, Mr. Evans was arrested and taken into custody in Arduum on 28 February 2019. (R. 19). 13. On 1 March 2019, a surrender hearing was conducted in Arduum, during which Mr. Evans claimed that he was unlawfully arrested and abducted into Arduum. (R. 20). Despite this position, Arduum s Minister executed the arrest warrant pursuant to Rome art. 59(4). Subsequently, on 5 March 2019, Mr. Evans was surrendered to the ICC, and initially appeared before this Court on 7 March 2019. (R. 21). 14. Prior to the Confirmation Hearing, 20.000 Brisk nationals, not all of which were actual inhabitants of the port of Gyst, filed a request with the Pre Trial Chamber ("PTC") to be recognized as victims and to be afforded participatory rights during the proceedings against Mr. Evans. (R. 25). These victims, represented by one single legal representative, claimed that they were deprived of food and other resources as a result of the blockade and lived in fear of an Ulvan naval attack. (R. 25). On 2 April 2019, the alleged victims B01-B20.000 were granted provisional status as victims, and were attributed participatory rights limited to the first day of the Confirmation Hearing. 9

ISSUES BEFORE THE COURT 15. The Defence respectfully submits that the following issues to this Honourable Court at the Confirmation Hearing of Mr. Evans: I. Whether the Court may exercise jurisdiction over the case against Mr. Evans; II. Whether the arrest and ensuing detention of Mr. Evans was improper; and III. Whether victims B01 B20.000, through their sole legal counsel, have any right to participate in the proceedings against Mr. Evans. 10

SUMMARY OF ARGUMENTS 16. The Defence respectfully contends: The Court does not have jurisdiction over the case against Mr. Evans as the Prosecution is unable to properly establish that the nature of the situation complies with the prerequisites to jurisdiction including ratione materiae, ratione loci, ratione temporis, and ratione personae. Specifically, the Prosecutor is unable to show that Mr. Evans acted with the requisite level of mens rea required by the Rome Statute, nor is his alleged omissions to stop the blockade of the port of Gyst, considered a crime of aggression within the jurisdiction of the ICC. Moreover, Rome art. 22(2) requires strict construction of the statutory language of the Statute, and since the definition of the act of aggression requires "planning, preparation, initiation, or execution," the alleged crime of omission does not fall within the jurisdiction of the court. Furthermore, the crime of aggression as defined Rome art. 8 bis(1) is overly vague in terms of the "character, gravity, and scale" of the "manifest violation of the UN Charter" and, thus, is in violation of nullem crimen. 17. Since there is no defined crime, there exists no reasonable evidence for which the Court may find criminal liability. Therefore, a warrant for arrest pursuant to such evidence is improper. Moreover, the arrest was not necessary pursuant to the Rome Statute. As such, Mr. Evans was forcibly arrested and transported against his will into the State of Arduum in violation of the UDHR, ICCPR, and Rome arts. 55 and 66. Moreover, due to the violation of Mr. Evan's right to a fair and impartial trial, the case against Mr. Evans should be dismissed pursuant to Rome art. 85(3), or in the alternative, Mr. Evans should be granted compensation for the grave and manifest injustice he has suffered. 18. The victims have failed to allege any incidents that can be causally linked to the alleged crime of aggression, and their participation would unduly violate Mr. Evans right to a fair and impartial trial and his rights as an accused. Furthermore, this Court has never before entertained a case of alleged aggression. By recognizing that grave crimes threaten the peace, security, and well-being of the world, the Court must not forget the rights of the accused to a fair and impartial trial and to remain innocent until proven guilty. 11

JURISDICTION OF THE COURT 19. The Court preliminarily ruled that the ICC has jurisdiction over this case (R. 23). The Court did not provide a rationale or analysis behind its decision, but did note that even if Mr. Evans was not legally arrested and detained, the jurisdiction of the Court would remain unaffected. (R. 23). 20. The Court does not have jurisdiction over the case against Mr. Evans as the Prosecution is unable to properly establish that the nature of the situation complies with the prerequisites to jurisdiction including ratione materiae, ratione loci, ratione temporis, and ratione personae. Rome art. 15 bis(4) states that the Court's exercise of jurisdiction over a state for the alleged crime of aggression may be proper, "unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar." In the present case, neither Ulva nor Brisk have lodged a Rome art. 15bis(4) declaration with the Court Registrar; therefore, the precondition to the Court's jurisdiction over the alleged crime pursuant to Rome art. 8 bis is proper. (R. 1). 21. Although neither state has lodged a declaration, the Prosecutor is unable to prove that the blockade embodied the character, gravity, and scale required by Rome art. 8 bis to constitute a crime of aggression. Moreover, the Prosecutor is unable to prove that Mr. Evans committed the material elements of the alleged crime of aggression with both intent and knowledge, nor does Mr. Evans have the requisite effective control over the Ulvan military pursuant to Rome art. 8 bis(1). Therefore, the Prosecutor cannot prove the existence of ratione personae and ratione materiae in the case against Mr. Evans, and the Defence respectfully requests the dismissal of the case. 12

WRITTEN ARGUMENTS I. THE EXERCISE OF JURISDICTION BY THE COURT IS IMPROPER BECAUSE THE CRIME OF AGGRESSION, AS DEFINED, VIOLATES THE PRINCIPLE OF LEGALITY, AND IN THE ALTERNATIVE THE CHARGES AGAINST THE ACCUSED ARE IMPROPER. 22. In order for the Court to have jurisdiction over aggression, the Court must find that the nature of the situation complies with the prerequisites to jurisdiction: ratione temporis, ratione loci, ratione personae, and ratione materiae. A. Ratione temporis (temporal jurisdiction) 23. The temporal jurisdiction of the Court is proper. Rome art. 11 provides the Court may exercise jurisdiction over a case only if a crime within the Court s jurisdiction was committed after the entry into force of the Rome Statute by a State Party. The States of Ulva and Brisk both became parties to the ICC in 2004. 1 The alleged crime at issue was committed on 12 February 2018, after the entry into force of the Rome Statute. Therefore, temporal jurisdiction of the Court is proper. B. Ratione loci (territorial jurisdiction) 24. Where the crimes within the Court s jurisdiction occur on the territory of a State party, or are committed by a national of a State party, the Court will have proper jurisdiction. 2 In this case, regardless of a determination of where exactly the crime occurred, both parties to the Brisk- Ulva conflict were States Parties to the Rome Statute and therefore satisfy ratione loci. C. Ratione materiae (subject-matter jurisdiction) 25. Aggression is one of four enumerated crimes that fall within the Court s subject-matter jurisdiction per Rome art. 5(1)(d). However, the fact that the case addresses one of the most serious crimes for the international community as a whole is not sufficient for it to be admissible before this Court. 3 Although required by Rome art. 61(5) at the Confirmation Hearing, the Prosecutor will be unable to support each charge with sufficient evidence to establish substantial grounds to believe that Mr. Evans has committed the crime charged and the case should be 1 R. 1. 2 Rome art. 12. 3 Prosecutor v. Dyilo, ICC-01/04-01/06 8, Decision on the Prosecutor s Application for Warrant of Arrest (10 February 2006) at 41. 13

dismissed for lack of subject-matter jurisdiction. In the present case, Mr. Evans is charged with the commission of crime of aggression pursuant to Rome arts. 8 bis and 25(3)(a). The definition of the crime requires the showing by the Prosecutor of two components: (1) State act of aggression under Rome art. 8 bis(2), and individual crime of aggression under Rome art. 8 bis(1). i. There is no act of aggression 26. There is no State act of aggression because (i) Rome art. 8 bis(2) violates Rome art. 67(1)(i) by reversing the burden of proof, and (ii) Rome art. 8 bis(2) is modeled after General Assembly Resolution 3314, which was never intended to be a criminal statute. 27. Firstly, Rome art 8bis(2) violates Rome art. 67(1)(i) by reversing the burden of proof by requiring the accused to rebut the conclusive presumptions set forth in the enumerated list of acts that constitute a State act of aggression (Rome art. 8bis(2)(a-g)). Rome art. 67 sets forth the rights of the accused. Among its provisions, it guarantees that the accused shall not have imposed on him or her any reversal of the burden of proof or any onus of rebuttal. In the present case, the burden of proof is shifted to the accused to rebut the presumption that an act of aggression has occurred once the Prosecutor has determined which acts, if any, on the enumerated list the act in question falls under. Mr. Evans may not have the ability to overcome this burden, and thereby Mr. Evans is prejudiced with respect to a finding that an act of aggression had been executed. 28. Secondly, Rome art. 8 bis(2) reproduces more or less verbatim the 1974 General Assembly Definition of Aggression in 3314, 4 combining the general definition of acts of aggression in art. 2 of the GA definition with the enumerated list of acts of aggression in art. 3. The determination of whether an act of aggression has been committed under the U.N. Charter is evaluated by the U.N. General Assembly in light of all the circumstances of each particular case, and not conclusively presumed by falling within an enumerated list. 5 Also, 3314 was not intended to be a criminal statute, but rather form the basis of the determination of a State act of 4 G.A. Res. 3314 (XXIX), Annex, U.N. GAOR 29th Sess., Supp. No. 31, U.N. Doc. A/RES/3314, at 142 (14 Dec. 1974). 5 Id. 14

aggression for the Security Council. 6 29. In the event this Court does find determine Rome art. 8 bis(2) was proper, the facts still do not support the finding of an act of aggression by the State of Ulva. Under Rome art. 8 bis(2)(c) the blockade does not satisfy this provision which requires the State to blockade the port[s] or coasts of a State The record is silent as to the existence of other minor ports or length of the Briskan coastline, but declares only that the port of Gyst was the only major port and that the coastline was small. (R. 2). However, the provision requires that the ports, plural, be blocked off. Alternatively, under Rome art. 8 bis(2)(a) the Prosecutor would still not be able to show that an invasion or attack by Ulva was against the sovereignty, territorial integrity, or political independence had occurred. If the Prosecutor alleges an invasion against Brisk s territorial integrity, it is Mr. Evans contention that, while Ulva occupied Brisk s territorial waters, the coastline was disputed territory. (R. 2). 7 Therefore, the Prosecutor must prove that the invasion amounted to an invasion of Brisk s territory. ii. There is no crime of aggression 30. There is no crime of aggression because (i) Rome art. 8 bis(1) violates the principle of legality per Rome arts. 22-24; (ii) there is no individual criminal responsibility under Rome art. 25(3)(a) for the commission of the crime because in a democratic government, it is difficult to determine actual policy-making ability; and (iii) regardless, there is no causation. 31. Firstly, the definition of the crime of aggression violates the principle of legality per Rome arts. 22-24 and violates the right of the accused to fair notice of the charges against him per Rome art. 67(1)(a). The principle of legality is recognized by one hundred sixty-two, or approximately eighty-four percent of U.N. Member States as a general principle of law of civilized nations. 8 Also, as a general principle of international criminal law, legal clarity requires specificity in the construction of the law. 9 Accordingly, 6 Int l Law Comm n [ILC], Yearbook of the International Law Commission 50th Sess., A/CN.4/SER.A/1998/Add.1 (Part 1) at 68 (1998); see Benjamin B. Ferencz, Enabling the ICC to Punish Aggression, 6 WASH. U. GLOB. STUD. L. REV. 551, 555 (2007). 7 United Nations Convention on the Law of the Sea, art. 3, Dec. 10, 1982, 1833 U.N.T.S. 397. 8 KENNETH S. GALLANT, THE PRINCIPLE OF LEGALITY IN INTERNATIONAL AND COMPARATIVE LAW 241 (2009). 9 X. Ltd. And Y. v. United Kingdom, App. No. 8710/79, 28 Eur. Comm n H.R. Dec. & Rep. 77, 81 (1982); ANTONIO CASSESSE, INTERNATIONAL CRIMINAL LAW 41 43 (2d ed. 2008). 15

[i]n its broadest sense, the principle of legality ( nullem crimen ) encompasses the following in respect of criminal provisions: (1) the principle of nonretroactivity per Rome arts. 24, 23 (nullum crimen, nulla poena sine lege praevia); (2) the prohibition against analogy per Rome arts. 22(2), 23 (nullum crimen, nulla poena sine lege stricta); (3) the principle of certainty Rome arts. 22(1), 23 (nullum crimen, nulla poena sine lege certa); and (4) the prohibition against uncodified, ie unwritten, or judge-made criminal provisions Rome arts. 22(2), 23 (nullum crimen, nulla poena sine lege scripta). In sum, this means that an act can be punished only if, at the time of its commission, the act was the object of a valid, sufficiently precise, written criminal law to which a sufficiently certain sanction was attached. 10 Nullem crimen violation: omission is not included in the definition 32. However, Rome art. 22(2) requires that the Statute be strictly construed. The definition of the crime of aggression per Rome art. 8 bis or any of the Amendments does not include criminal liability for an omission. The definition of the crime in Rome art 8 bis(1) specifically requires the planning, preparation, initiation or execution by a person in a position of effective control to exercise control over or direct a State act of aggression. These are all affirmative action verbs and do not include the failure to act. A construction otherwise would violate the principles of legality: certainty and the making of uncodified law. 11 33. In this case, Mr. Evans is charged with failure to take the necessary and reasonable steps to alter Government decision-making as the political leader of the major government party in a democratic state. (R. 15). Therefore, the charge against Mr. Evans does not comply with the Rome Statute and violate the principle of nullem crimen. 34. Despite the fact that the Court shall have jurisdiction over natural persons, including Mr. Evans, because he did not commit a crime within the jurisdiction of the Court, the requirement for rationae personae jurisdiction is not satisfied. Nullem crimen violation: Aspects of the definition are vague 35. A violation of the principle of nullem crimen exists in the vagueness of the definition. The phrases character, gravity and scale which constitute a manifest violation of the Charter of the United Nations are vague. Additionally, the phrase that states that an act of aggression can be established by the use of armed force that is in a manner inconsistent with the Charter of the United Nations is also vague. 10 Claus Kreb, Definition of Concept of Legality, MAX. PLANCK (2010). 11 See supra 11. 16

36. The definition does not criminalize actions in violation of a specific article(s) of the UN Charter (for example, art. 2(4) of the UN Charter against prohibition on use of force), but criminalizes violations of the entire UN Charter. This necessarily violates the principle of certainty required per Rome arts. 22(1), 23. Additionally, the meaning of manifest, while declared as an objective qualification per the Amendments, remains unclear. 12 The term was chosen after several alternatives, such as serious or flagrant, were discarded, but seems to have little meaning of its own. 13 As to character, gravity and scale this phrase too suffers from the same vagueness problem as the terms are not defined within the Rome Statute itself. Therefore, using the plain-meaning of these words, per the Vienna Conventions 31(1) 14 would open a plethora of potential meanings, all of which are subjective and insufficient to put an person on notice of the crime. 37. In Lubanga, the Court established the following dispositive test during the pretrial investigation to determine the existence of sufficient gravity: (i) the conduct which is the subject of the case must be either systematic or large-scale; and (ii) if so, whether such conduct caused social alarm in the international community. 15 38. The facts of this case state explicitly that the UNSC, to date, has not determined that a crime of aggression arose from the acts committed by the State of Ulva. 16 Moreover, while Gyst is the major port located on a relatively small Briskan coastline, the facts are silent as to any minor ports in the State. 17 Therefore, while the military deployment involved the entire port of Gyst, it did not involve the entire Briskan coastline. In addition, the record is silent on the effect of the Ulvan act on the other borders and points of entry into the State of Brisk. Therefore, the Court should find any conduct by the State of Ulva was neither widespread nor systematic towards the State of Brisk. 39. Mr. Evans further contends the act was not sufficient to cause international alarm. As stated 12 Amendments, Annex II 8 bis Introduction (3). 13 See Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, 8 11 June 2006, in Assembly of States Parties, 5th session 2006, Doc ICC-ASP/5/SWGCA/INF.1 (5 Sept. 2006), at paras 18, 20 cited in Andreas Paulus, Second Thoughts on the Crime of Aggression, 20 E.J.I.L 1117, 1121 (2009). 14 Vienna Convention on the Law of Treaties (1969). 15 Dyilo supra note 3, at 46. 16 R. 13. 17 R. 2. 17

supra, the UNSC did not make a determination regarding whether the acts by the State of Ulva in the present case suffice as an act of aggression. 18 Moreover, the case against Mr. Evans is brought before the Court by the Prosecutor proprio motu and not by any other State or IGO. 19 Therefore, unless the Rome Statute intends the power of the Prosecutor to extend to that of a linchpin determinant of international alarm, the acts by the State of Ulva are not of sufficient gravity to warrant the Court s jurisdiction over this case. 40. Moreover, the Amendments to the Elements of the Crime provide that there is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations is required. 20 Such a provision directly conflicts with the definition of an act of aggression in the Amendments, which requires the accused to determine whether the acts of the State constitute a manifest violation of the U.N. Charter. Thus, contradiction within the Statute itself renders the Amendments impermissibly vague in violation of the principle of legality. 41. Additional vagueness is found in the supporting evidence of the Prosecutor who accuses Mr. Evans of failure to take necessary and reasonable steps. (R. 15). However, the word necessary is subjective. How is one to apprise ones self of what is necessary? 42. Secondly, there is no individual criminal responsibility under Rome art. 25(3)(a) for the commission of the crime because in a democratic government, it is difficult to determine actual policy-making ability, or effective control. The Prosecutor went on to charge Mr. Evans with failure to take necessary and reasonable steps to alter Government decision-making. 21 However, Ulva is a democratic government. 22 As such, in most democratic societies it is almost impossible to pinpoint responsibility for a certain action to just a few individuals since large numbers of bureaucrats are usually involved in preparing and shaping decisions. 23 43. In the present case, the Accused was a party leader of a major party. 24 As a major party 18 R. 13; see Rome art. 15(1). 19 R. 11 15; see Rome art. 15(1). 20 Amendments, Annex II 8 bis Introduction (2). 21 R. 15. 22 R. 15. 23 Matthias Schuster, The Rome Statute and the Crime of Aggression: The Gordian in Search of a Sword, 14 Crim.L.F. 1, 21 (2003). 24 R. 15. 18

leader in a democratic parliamentary system, he is limited as to the amount of influence he can wield over parliamentarians who vote freely and cumulatively. And, while the Record states that [a]lthough not officially a part of the Government... Mr. Evans is very influential on every aspect of the Governmental policy, 25 no other facts explicitly establish the scope of Mr. Evans authority within the Ulvan Government or parliament. 44. In Kordic, the ICTY found that substantial influence alone is not sufficient to establish individual criminal liability. 26 The Trial Chamber was of the view that Kordi! did not fulfill the element which has become the most essential requirement of superior responsibility, that of effective control. The fact that the accused had had substantial influence over the events in Central Bosnia did not, in and of itself, indicate the degree of control sufficient to hold a person responsible under the doctrine of superior responsibility. 27 45. Thirdly, and in the event this Court determines an act of aggression has occurred, the Accused is not criminally liable for the commission of the crime where he lacked the mens rea for the offense. The mens rea required for the crime of aggression is set forth in Amendments Annex II Elements of the Crime of Aggression 4 and 6 which require the perpetrator be aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations and be aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations, respectively. 46. In this case, the Accused could not possibly have been aware of the extent of the blockade that it would affect 20.000 alleged victims and have lasted one year and three months. Also, no facts exist to establish that Mr. Evans intended to engage in any conduct considered unlawful by this Honourable Court, or that Mr. Evans had any intent to cause harm to Briskan nationals and inhabitants. Moreover, a unilateral declaration merely supporting a government is insufficient to establish an individual s authority in a State, in contrast to a unilateral declaration made on behalf of the State or its people. 28 In its 2006 report to the General Assembly, the ILC cited the ICJ judgments which held that statements from which it [could] be inferred that any legal undertaking was intended to exist are necessary to determine the legal effect of unilateral 25 R. 4. 26 Prosecutor v. Dario Kordic & Mario Cerkez, Judgment, Case No. IT-95-14/2-T (26 February 2001). 27 See id. 28 Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda), 2006 I.C.J. New Application 126, 48 (3 Feb. 2006). 19

declarations. 29 Thus, to determine whether statements by an individual are made unilaterally on behalf of the State, the intent of the individual to bind the State is necessarily inferred from the statements themselves. For the aforementioned reasons, the Defence respectfully contends this Court lacks subject-matter jurisdiction and should therefore dismiss all charges. iii. Affirmative defence in the alternative 47. Per Rome art. 31(1)(3) the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in Article 21. 48. In this case, the Defence contends that the blockade was done lawfully pursuant to art. 1 of the UN Charter to protect against a threat to the peace of Ulva. The UN Charter is a treaty and, as such, is set forth in Rome art. 21(b). Brisk had received arms from superpowers and had been strengthening its navy, in light of increasing tensions between the two countries exacerbated by territorial boundary dispute. (R. 5). These circumstances lend themselves to an inference. The inference being an eventual use of armed force against Ulva. Therefore, it is Mr. Evans contention that Ulva was acting lawfully under UN art. 1 to prevent the unlawful use of armed force against it, thereby preserving the peace. 49. Therefore, this Court lacks subject-matter jurisdiction and should therefore dismiss all charges. II. THE ARREST AND DETENTION WAS IMPROPER BECAUSE JOHN EVANS WAS FORCIBLY COERCED INTO THE TERRITORY OF ARDUUM. 50. Upon application by the Prosecutor, the Court issues an arrest warrant for an individual if the Court finds (1) reasonable evidence that the person has committed a crime within the Court s jurisdiction; and (2) the arrest of the individual is necessary. 30 As established supra, the crime of aggression as defined violates the statutory principle of legality, 31 and the jurisdiction of the Court over this case is thereby improper. Thus, where a crime remains undefined due to ambiguous construction, no crime exists within the Court s jurisdiction. Since there is no 29 Rep. of the Int l Law Comm n, general princ. 3, 58th Sess., 1 May 9 June, 3 July 11 Aug. 2006, U.N. Doc. A/61/10; GAOR, 61st Sess., Supp. No. 10 (2006). 30 Rome art. 58(1)(a). 31 Supra, 28 32. 20

defined crime, there exists no reasonable evidence for which the Court may find criminal liability. Therefore, a warrant for arrest pursuant to such evidence is improper. 51. Notwithstanding the illegality of evidence of an undefined offence, the Rome Statute also requires that the arrest be necessary: (i) To ensure the person's appearance at trial; (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances. 32 52. Since 12 February 2018, the State of Ulva has not removed the military vessels from the port of Gyst in its conflict with Brisk. Therefore, in theory, the commission of the act as defined by the Amendments continues, and the individual responsible for the act implicitly continues to commit the crime as defined. Pursuant to Rome, art. 58(b)(3), where commission of the crime continues, necessity of the arrest is proper over such crimes within the Court s jurisdiction. As established supra, Mr. Evans is accused of committing a crime that is not within the jurisdiction of the Court because the Amendments violate the principle of legality. Therefore, the Defence respectfully contends the arrest of John Evans was not necessary pursuant to the Rome Statute, and therefore unlawful. In addition, Mr. Evans' arrest was unnecessary as there is no substantive proof that the arrest was necessary to ensure his appearance at trial, nor was there any evidence to show Mr. Evans would attempt to obstruct or endanger the investigation by the Prosecutor. Additionally, it was the collective Ulvan government and not Mr. Evans, in his individual capacity, which had the capability of affecting the alleged blockade. (R. 10). Therefore, the arrest and subsequent detention of Mr. Evans was unnecessary as there was no factual evidence to show that such an arrest and detention was necessary to ensure his presence at trial, prevent obstruction of the investigation, or prevent the continuation of the blockade. 53. The ICTY established the Court s ratione personae jurisdiction over an individual depends upon any circumstances relating to the accused which would warrant setting aside jurisdiction 32 Rome art. 58(1)(b). 21

and releasing the accused. 33 Additionally, the Regulations of the Court 34 provide an individual accused of a crime by the Court shall be notified by way of personal service of... warrants of arrest.... 35 In the present case, nothing in the facts states Mr. Evans was personally served with his warrant for arrest by the Prosecutor, nor is there evidence to establish the Prosecutor effected such notification, pursuant to Regulation 31(4) of the Court. Therefore under the given facts, service of process upon the accused was improper leading to the unlawful arrest of John Evans. 54. The Rome Statute grants extensive protection to the rights of the accused, in accordance with international human rights and due process norms, including the Universal Declaration of Human Rights ("UDHR") and the ICCPR. 36 From the time the Prosecutor initiated an investigation into the alleged crime of aggression, Mr. Evans should not have been subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment. 37 Accordingly, coercion is defined as compulsion by physical force or threat of physical force. 38 55. The circumstances surrounding the forcible transfer of Mr. Evans across national borders, which subsequently led to his arrest and detention, has fatally tainted the Prosecutor's case and the case should be dismissed. Mr. Evans was lawfully in the State of Konera where he consented to an identification check by a private security officer in the casino. Before exiting the territory of Konera, Mr. Evans withdrew his consent to accompany the security staff and was thereafter taken by force into the State of Arduum, a State Party to the Rome Statute. 39 Such procedures violated Mr. Evans' protection from coercion during the prosecutorial investigation pursuant to Rome art. 55. 33 Prosecutor v. Nikolic, IT-940-AR73, Decision on Interlocutory Appeal Concerning the Legality of Arrest at 19 (5 June 2003). 34 Regulations, 31(3) (4). 35 Regulations, 31(3)(a). 36 ICCPR, arts. 13 14,19 Dec. 1966, 999 U.N.T.S. 171; UDHR, pmbl., arts. 9 10. 37 Rome art. 55(1)(b). 38 Black's Law Dictionary (9th ed. 2009). 39 R. 19. 22

56. Moreover, the UDHR, having the status of customary international law, 40 provides that no one shall be subjected to arbitrary arrest, detention, or exile, 41 and every person has the right to freedom of movement and residence within the borders of each state, and every person has the right to leave any country, including his own, and return to his country. 42 In the case at hand, Mr. Evans was arbitrarily detained by the security guards in Konera and was deprived of his right to freedom of movement as he was forcibly transferred across state borders in order to effectuate the arrest warrant issued by the ICC. Furthermore, the ICCPR recognizes the civil and political rights of all individuals, and the obligation of states to observe and protect such rights. 43 Thus, Mr. Evans, an alien legally within the territory of Konera, should not have been expelled from the country without the proper showing of a lawful or a compelling reason of national security to do so. 44 Due to the fact that there was not a compelling reason to forcibly transfer Mr. Evans across the border into Arduum, Konera violated the human rights of Mr. Evans. 57. Pursuant to the Rome Statute, the Prosecutor must respect the statutorily defined rights of the accused. 45 Moreover, the Court may determine a final decision of acquittal or a termination of the proceedings following a grave and manifest miscarriage of justice. 46 The ICCPR and the Rome Statute further provide an enforceable right to compensation for an individual who has been unlawfully detained or arrested. 47 Therefore, where the Prosecutor procedurally disregards the rights of the accused, a grave miscarriage of justice may have been committed and the charges must be dismissed. 58. In the alternative, due to the grave and manifest miscarriage of justice against Mr. Evans, RPE 175 provides that the amount of compensation granted should reflect the consequences of the grave and manifest miscarriage of justice on the personal, family, social, and professional situation of the person filing the request. 40 See generally, Shaw, INTERNATIONAL LAW, 6th ed. (Cambridge: Cambridge University Press, 2008) at 279. 41 UDHR, art. 9 42 UDHR, art. 13 43 ICCPR, pmbl., 19 Dec. 1966, 999 U.N.T.S. 171. 44 ICCPR, art. 9., 19 Dec. 1966, 999 U.N.T.S. 171. 45 Rome, art. 54(1)(c). 46 Rome, art. 85(3). 47 Rome, art. 85(1); ICCPR, art. 9., 19 Dec. 1966, 999 U.N.T.S. 171. 23

59. John Evans was forcibly arrested and transported against his will into the State of Arduum. Furthermore the unlawful arrest was due to erroneous charges brought by the Prosecutor. For the aforementioned reasons, the Defence respectfully requests this Honourable Court grant the immediate release of Mr. Evans and enforce his right to compensation pursuant to Rome, art. 85. III. VICTIMS B01 B20.000 DO NOT HAVE SUFFICIENT RIGHT TO PARTICIPATE IN THE PROCEEDINGS WITHOUT PREJUDICE TO JOHN EVANS. 60. Although PTC 6 granted victims B01-B20.000 initial participatory rights in the case of Mr. Evans, including the right to make submissions in relation to all points on the agenda for the first day of the Confirmation Hearing, the victims participation in the case would unduly prejudice Mr. Evans rights as an accused and his right to a fair and impartial trial. In turn, the Defence respectfully asks this Honourable Court to reject the application of B01 B20.000 as these victims have failed to allege any incidents that can be causally linked to the alleged crime of aggression, and their participation would unduly violate Mr. Evans right to a fair and impartial trial and his rights as an accused. 61. According to RPE 85(a), the term victim is reserved for natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court. In order for an individual to be classified as a victim for the purpose of the underlying proceedings (i) the applicant must be a natural person; (ii) the applicant must have suffered harm; (iii) the crime from which the harm resulted must fall within the jurisdiction of the Court; and (iv) there must be a causal link between the crime and the harm. 62. If the Court does not feel that the victims meet the standard set forth in RPE 85(a), the Court may reject the application of the victim. 48 Moreover, the Court may rule on the relevance and admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence. 49 63. Although the crime of aggression does not, in itself, require a showing of an injury caused by the aggression, in order to come before the ICC only those victims who are able to 48 RPE 89(2) 49 Rome art. 69(4) 24

demonstrate a direct link between the harm and the crimes in the arrest warrant will be entitled to participate in the proceedings at that stage. 50 64. In the present case, the twenty thousand individuals seeking further participatory rights are nationals of Brisk who primarily reside in the areas of the port of Gyst. 51 Although the blockade by the Ulvan navy occurred in the port of Gyst, the residents of Gyst have not established that they were personally harmed by the actions of Mr. Evans, that the alleged omissions by Mr. Evans constitutes a crime within the jurisdiction of the Court, nor have they established a direct link between the alleged crime and the harm suffered, including the alleged deprivation of resources and the alleged invocation of fear caused by the presence of the Ulvan navy in the port. 65. Furthermore, the ICC faces a case of first impression, as this Court has never before entertained a case of alleged aggression; and by recognizing that grave crimes threaten the peace, security, and well-being of the world, the Court must not forget the rights of the accused to a fair and impartial trial and to remain innocent until proven guilty. 52 For example, both Rome art. 67 and the ICCPR declare that everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law 53 and everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 54 66. Although the Court grants victims the right to participate in the proceedings against Mr. Evans by expressing their views and concerns through their own legal representatives, this right needs to be balanced with the prejudice that their participation will cause the accused. Although victim participation may take place at all stages of the court proceedings, Rome art. 68(3) only allows for the participatory rights of victims if exercising the rights would be in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial. Although the Rome Statute allows for the victims views to be presented and 50 The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008, ICC-01/04-01/06-1432 1 (11 July 2008). 51 R. 25. 52 Rome, pmbl.; Rome art. 66(1); ICCPR, art. 14(2). 53 ICCPR, art. 14(1) 54 ICCPR, art. 14(2) 25

considered, the participatory rights are conditioned upon the PTC's satisfaction that the rights of the accused are protected. 55 67. In order to balance the harm suffered by the applicants against the rights of the accused, the Court evaluated the following factors to determine victims participation in the case against Thomas Lubanga Dyilo: (1) the harm suffered by victims must have been personal; (2) the harm suffered by victims may have been direct or indirect; and (3) the personal interests of the victims must be linked with charges against accused. 56 Thus, only those applicants who establish all three prongs may be granted participatory rights. In this context, the trial chamber determines the participation of persons affected by the alleged crime as charged. 57 Considering the rights of Mr. Evans, specifically his right to remain innocent until proven guilty, the victims are unable to express their views and concerns in relation to the burden of proof of guilt as it is the sole responsibility of the Prosecutor to prove the case. 58 Moreover, the dissenting opinion of Judge Georghios M. Pikis concerning the Decision of the Participation of Victims on Appeal held that victims are not legitimised to participate in proceedings relating to the propriety of the course of the judicial process. 59 68. The alleged victims have chosen to have one legal representative who will be responsible for presenting the views and submissions of the twenty thousand individuals when their interests are likely to be affected. 60 Moreover, the victims and their legal counsel are able to participate in the trial three ways: to attend and participate in the proceedings; to question a witness, an 55 Jonathan Doak, Participatory Rights for Victims of Crime: In Search of International Consensus, 15 CANCRIMLR 43, 52 (2010). 56 Rome art. 66; Prosecutor v. Lubanga, 47 I.L.M. 972, Appeals Chamber: Decision on Victim Participation 981 (11 July 2008). 57 Prosecutor v. Lubanga, 47 I.L.M. 972, Appeals Chamber: Decision on Victim Participation (11 July 2008) at 62. 58 Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06-925,"Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the 'Directions and Decision of the Appeals Chamber' of 2 February 2007'" (13 June 2007). 59 Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06 OA 12, "Dissenting Opinion of Judge Georghios M. Pikis concerning the 'Decision on the Participation of Victims in the Appeal'" (29 August 2008). 60 Rome art. 68(3). 26