APPEALS CHAMBER PACE LAW SCHOOL THIRD ANNUAL INTERNATIONAL CRIMINAL COURT MOOT COMPETITION, In the case of. Prosecutor

APPEALS CHAMBER PACE LAW SCHOOL THIRD ANNUAL INTERNATIONAL CRIMINAL COURT MOOT COMPETITION, 2007 In the case of Prosecutor v. Henry Lynch, Thomas Dane and Jackson Cray MEMORIAL SUBMITTED ON BEHALF OF THE PROSECUTOR GUJARAT NATIONAL LAW UNIVERSITY INDIA OFFICE OF THE PROSECUTOR

TABLE OF CONTENTS INDEX OF AUTHORITIES.......... III STATEMENT OF JURISDICTION...VII QUESTIONS PRESENTED...... VII STATEMENT OF FACTS........1 PLEADINGS........2 A. THE COURT HAS JURISDICTION OVER THE SITUATION REFERRED....2 1. ALBILION S REFERENCE TO ICC IS EXERCISE OF A VALID RIGHT CREATED BY A TREATY.........3 1.1 Albilion s referral to the Court is a valid exercise of its right as a state party.4 1.2 The character of crimes committed by the accused is sufficient to draw the jurisdiction of the Court...5 1.2.1 The confession of the accused further supports the reasonable apprehension and corroborates the commission of crime 5 1.2.2 The surrender of the accused is valid...6 1.2.3 Surrender is in interest of justice.7 1.3 The crimes committed by the accused constitute crimes against humanity as provided under Art 7 of the Statute.....7 1.4 The accused have committed war crimes as stated under Art 8 of the Statute...8 2. ALTERNATIVELY, IF ALBILION HAD CEASED TO BE A STATE PARTY TO THE ROME STATUTE BY VIRTUE OF THE ALBILIONESE CITIZEN PROTECTION ACT AND THE AGREEMENTS, THE SAID REFERENCE IS NEVERTHELESS INTRA VIRES THE ROME STATUTE UNDER ART 12(3) READ WITH ART 87(5) AND RULE 44 OF THE RULES OF PROCEDURE AND EVIDENCE...9 I

B. THE CASE IS ADMISSIBLE BEFORE THE ICC.10 3. THE DEFENSE IS BARRED TO RAISE ISSUES OF ADMISSIBILITY IN THIS APPEAL UNDER ART 18(4) READ WITH ART 82, PURSUANT TO SPECIAL REQUIREMENTS STIPULATED IN ART 18(7)...10 4. ALTERNATIVELY, IF THIS HONOURABLE COURT CONSIDERS THE DEFENSE S OBJECTION ON ADMISSIBLITY IN INTEREST OF JUSTICE THEN, THE SUBJECTIVE REQUIREMENTS IN ORDER TO DECLARE THIS CASE INADMISSIBLE BEFORE THE ICC ARE NOT FULFILLED.11 The subjective requirements under Art 17 are not fulfilled...11 Albilion and Tierna are unable to investigate and prosecute the accused.11 Tierna is unwilling to investigate and prosecute the accused 13 5. CUSTOMARY AND HISTORICAL EVIDENCE 13 6. ALBILION HAS WAIVED ITS RIGHT OF TRIAL 14 PRAYER FOR RELIEF.... 15 CERTIFICATION....... VIII II

INDEX OF AUTHORITIES STATUTES, CHARTERS & CONVENTIONS (1) ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, U.N. Doc. No. A/CONF. 183/0 (July 17, 1998)..[Cited as the Statute] (i) PREAMBLE....... 2, 3 (ii) ARTICLE 1........ 2 (iii) ARTICLE 5.......... 5, 9, 13 (iv) ARTICLE 7........ 2, 7 (v) ARTICLE 8........ 2, 8 (vi) ARTICLE 11....10 (vii) ARTICLE 12..........3, 9, 10 (viii) ARTICLE 13...... 4 (ix) ARTICLE 14......4 (x) ARTICLE 17.... 6, 11, 12, 13 (xi) ARTICLE 18...... 6, 10, 11 (xii) ARTICLE 19...... 6, 10, 11 (xiii) ARTICLE 20. 6 (xiv) ARTICLE 30. 7 (xv) ARTICLE 82... 10 (xvi) ARTICLE 87.9 (xvii) ARTICLE 127...4 RULES OF PROCEDURE AND EVIDENCE, ICC-ASP/1/3 (A) (2000) (xviii) RULE 44....... 9 (2) VIENNA CONVENTION ON THE LAW OF TREATIES, United Nations, Treaty Series, vol. 1155, p. 331 (May 23, 1969)...[Cited at VCLT] (i) ARTICLE 34...... 4, 6 (3) UN CHARTER (i) ARTICLE 2 6 (4) GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR (August 12, 1949)..7 III

(5) GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR (August 12, 1949) (i) ARTICLE 130 8 ADDITIONAL PROTOCOLS I (JUNE 8, 1977) (ii) ARTICLE 11(4).8 (6) CONVENTION ON THE PREVENTION AND PUNISHMENT OF CRIMES AGAINST INTERNATIONALLY PROTECTED PERSONS, INCLUDING DIPLOMATIC AGENTS, 1035 U.N.T.S. 167 (i) ARTICLE 6 6 (ii) ARTICLE 7 6 (7) CONVENTION ON THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF CIVIL AVIATION, SEPT. 23, 1971, 974 U.N.T.S. 177 (MONTREAL CONVENTION). (i) ARTICLE 5 6 (ii) ARTICLE 7 6 CASES (8) Ambetielos Case, Merits: Obligation to Arbitrate (Greece v. U.K.), 1953 ICJ 10, 18 (May 19).[Cited as Ambetielos Case] (9) Judgement of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg, September 30 and October 1, 1946, 38 (London His Majesty s Stationery Office 1946).[Cited as IMT Judgement] (10) Libyan Arab Jamahiriya v. United States of America, 1992 ICJ No. 88 pp. 114, 141 (separate opinion of Judge Shahabuddeen) [Cited as Lockerbie Case] IV

(11) Nicaragua v. U.S.A., 1986 ICJ 212...[Cited as Nicaragua Case] (12) Prosecutor v. Tadic, IT-94-1-T (May 7, 1997) (13) Prosecutor v. Tadic, IT-94-1-A (July 15, 1999)...[Cited as Tadic II] BOOKS & ARTICLES (14) Arsanjani, Mahnoush H.. The Rome Statute of the International Criminal Court, American Journal of International Law, Vol.93, 1999, p. 22 (93 Am. J. Int'l L. 22 1999) [Cited as Arsanjani] (15) Brown, Bartram S., United States Objections to the Statute of the International Criminal Court: A Brief Response, 31 N.Y.U. J. INT'L L.& POL. 855, 868-70 (1999) [Cited as Brown] (16) El Zeidy, Mohamed M., The Principle of Complementarity: A New Machinery to implement International Criminal Law, Michigan Journal of International Law, Summer 2002, pp. 869-975 (23 Mich. J. Int'l L. 869)...[Cited as El Zeidy] (17) Holmes, John T., The Principle Of Complementarity in International Criminal Court: The Making Of Rome Statute, Issues, Negotiations and Results, 1996, p. 41 (Ed. By Roy S. Lee)..[Cited as Holmes] (18) Linton, Suzannah, Safeguarding the Independence and Impartiality of the Extraordinary Chambers, Journal of international criminal Justice, Vol.4, May 2006, p.329.[cited as Linton] (19) Morris, Madeline, Terrorism and Unilateralism: Criminal Jurisdiction and International Relations, Cornell International Law Journal, 2004, pp. 473-489 (36 Cornell Int'l L.J. 473).....[Cited as Morris] V

(20) Oraá, Jamie, Human Rights in States of Emergency in International Law, 1992, p. 29 [Cited as Jamie] (21) Owada Hisashi, The Creation of The International Criminal Court: A Critical Analysis Dynamics of International Law in the New Millenium, Manak Publishers, 2004, p.93 (Ed. By R.K. Dixit, Jayaraj C.)...[Cited as Owada] (22) Schabas, William A., An Introduction to International Criminal Court, Cambridge University Press, First Edition, 2001, pp. 66, 67.[Cited as Schabas] (23) Schraf, Michael P., The United States and the International Criminal Court: the ICC s jurisdiction over the Nationals of non-state parties 64 L. & Contemp. Probs., (2001) [Cited as Schraf] (24) Terracino, Julio Bacio, National Implementation of ICC Crimes: Impact on National Jurisdiction and the ICC, Journal of International Criminal Justice, May 2007, pp. 421-440 (5 J. Int'l Crim. Just. 421)...[Cited as Terracino] (25) Timbreza, Lance Phillip, Captain Bridgeport And The Maze of ICC Jurisdiction Gonzaga Journal of International Law, Vol.10, 2007, p. 348-368 [Cited as Timbreza] (26) Wald, Patricia M., International Criminal Courts A Stormy Adolescence, Virginia Journal of International Law, Vol. 46 p. 319, 331, 332....[Cited as Wald] VI

STATEMENT OF JURISDICTION THE PRESENT SUBMISSION ON BEHALF OF THE PROSECUTOR IS IN RESPONSE TO THE DEFENSE S APPEAL UNDER ART 18(4), 19 AND 82 OVER THE PRE TRIAL CHAMBER S RULING ON THE JURISDICTION AND ADMISSIBILITY OF THE PRESENT SITUATION REFERRED. THE PROSECUTOR SUBMITS TO THE COURT S JURISDICTION OVER THE MATTER OF INDICTED ACCUSED PERSONS, HENRY LYNCH, THOMAS DANE AND JACKSON CRAY. QUESTIONS PRESENTED A. WHETHER THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION OVER THE CASE REFERRED? B. WHETHER THE CASE IS ADMISSIBLE BEFORE THE INTERNATIONAL CRIMINAL COURT? VII

STATEMENT OF FACTS 1. Albilion, a European country and a hub of international commerce, ruled its occupied colony Tierna for almost 80 years. Albilion signed and ratified the Rome Statute of ICC in August, 1999 under the regime of the Prime Minister Essex. 2. In January, 2003 the newly elected Prime Minister Eiling resolved to unsign the Rome Statute. Albionese Parliament ceded to the pressure of Eiling and passed the Albionese Citizenry Protection Act (ACPA) that sought to immune Albilionese citizens and service persons from the jurisdiction of the ICC. One of the provisions of the ACPA even authorized use of force by Albilion to free Albilionese Citizen from the custody of the ICC. 3. Albilion started seeking agreements with other countries seeking immunity from the surrender of Albilion nationals by other State parties. More over resolution 2214 passed by the United Nations Security Council granted immunity to the nationals of the non-state party from the jurisdiction of the ICC. 4. St. Rache, capital of Albilion was a victim of a devastating attack on 17 th March, 2005, later termed as Bloody Thursday, resulting into 6666 deaths. Eighteen underground railway stations were bombed by the rogue members of the Tiernan Republican Army. TRA denied any responsibility and its leader Coogan promised to bring the accused persons to justice. 5. PM Eiling resolved to bring the accused to justice by any means necessary. The aftermath of the attack caused down fall of economy and outflow of international corporations from Albilion resulting in increasing unemployment. This led to the breakout of riots and a state of anarchy prevailed in Albilion. Indefinite state of martial law was declared on January 18, 2006. 6. Albilion, in an attempt to track down the accused persons increased the number of military personnel in Tierna. TRA successfully carried out guerilla warfare against Albilionese military that ended in hostage of Albilionese soldiers by Tierna. 7. Former Prime Minister Essex was reelected in April 2006 in Albilion. The ACPA was rescinded along with other non-transfer and surrender agreements with other countries. Also, TRA leader Coogan was elected as Prime Minister in free elections held in Tierna in May, 2006. 8. Albilion constabulary arrested Henry Lynch, Thomas Dane and Jackson Cray from St. Rache on 28 th August, 2006. The arrested confirmed TRA members confessed their role in the 1

bombings. On September 8, the accused persons were surrendered to ICC with the formal reference to the OTP by PM Essex. 9. The sectarian violence had resulted in assassination of the PM Essex and the destruction of Albilionese Parliament. UN peacekeeping force managed to control violence in December, 2006 after 67 days of armed conflict. 10. The prosecutor of ICC after initial investigation charged the accused with war crimes and crimes against humanity. Pre trial chamber admitted the matter. Representatives of the Tiernan Government appealed on this decision arguing that at the time of the attack Albilion was not party and therefore ICC lacks jurisdiction. Later, PM Coogan ordered immediate release and return of the interred Albionese military personnel in March, 2007. PLEADINGS [A] THE COURT HAS JURISDICTION OVER THE SITUATION REFERRED. 1. The gravity of situation referred and the impact of the heinous acts of the accused, Henry Lynch, Thomas Dane and Jackson Cray, are of a nature such that it warrants attention of the Court and adequate adjudication of the crimes. These crimes, committed by the accused, are within the jurisdiction of the International Criminal Court. The prosecutor submits that the ICC has jurisdiction over the acts of the accused as (1) The alleged crimes were committed on the territory of a State which has referred the matter to the Office of Prosecutor (OTP), (2) The crimes committed by the accused fall within the scope of Art 7 and 8 of the Rome Statute, (3) The crimes committed are crimes of utmost seriousness, of international concern and they violate principles of jus cogens and (4) The Courts of Tierna are unable as well as unwilling to prosecute the accused. 2. The ICC has been set up taking into consideration the objectives of international harmony and peace and to exercise jurisdiction over persons for the most serious crimes of international concern [Article 1 and Preamble of the Statute]. Crimes like Bloody Thursday irrefutably come under the purview of the International Criminal Court. The prosecutor requests the Court to uphold the decision of the Pre-Trial Chamber and dismiss the present appeal by the 2

representatives of the Tiernan Government in light of following submissions relating to the jurisdictional aspect of the Court. [1] ALBILION S REFERENCE TO ICC IS AN EXERCISE OF A VALID RIGHT CREATED BY A TREATY. 3. The referral by Albilion satisfies the preconditions that are stipulated in Art 12 of the Statute. Albilion has referred the instant situation as the preconditions laid down in Art 12(2)(a) are satisfied. Art 12(2)(a) states that the Court may exercise jurisdiction if a State is a party to the Statute when the conduct in question has occurred in the territory of the State. 4. The principle of jus loci delicti commissi provides an explanation in this regard. A sovereign State has the right to exercise criminal jurisdiction on the basis of its competence over its territory regardless of the nationality of the accused [Owada at 93]. However, with the development of International Humanitarian Law, abuses committed within national borders are no longer confined therein. The sovereignty of States remains an important international value, but the prerogatives it entails have been limited and redefined to accommodate the newly recognized values of international human rights. In this day and age, insistence on a traditional concept of State sovereignty is anachronistic, especially in a humanitarian context. Viewed from this perspective, a modest extension of the grave breaches can indeed be justified [Brown at 348]. 5. While Albilion has jurisdiction to try the case, as the crimes have been committed within its territory, it would impede the interests of justice if the traditional concept of sovereignty were adhered to. The delegation of jurisdiction to the ICC does not affect the territorial principle as States are entitled to delegate this jurisdiction to an international tribunal [IMT Judgment at 103]. 6. Every State has a duty to prosecute crimes of international concern, in accordance with the Principal of Universal Jurisdiction. The fact that Albilion is now a signatory State can be inferred from the facts when the Prosecutor of the Court charged the accused, on the basis that Albilion is a signatory State. As the Preamble to the Statute Affirm[s] that the most serious crimes of concern to the international community as a whole must not go unpunished and Recall[s] that 3

it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, it is the duty of Albilion to prosecute the accused for the crimes committed or surrender them to the ICC to maintain the sanctity of the Rome Statute. Further, Art 34(4) of The Vienna Convention on the Law of Treaties clearly states A treaty does not create either obligations or rights for a Third State without its consent. In this case Prime Minister Essex voluntarily accepted the jurisdiction of the Court hereafter creating both rights and obligations towards the Court with respect to the particular situation. 7. The ICC is entitled to exercise jurisdiction over the accused as the following jurisdictional requirements are satisfied. First, the conduct in question occurred on the territory of Albilion, demonstrating a territorial nexus to a party to the Rome Statute. Secondly, the crimes for which the accused are accused occurred after entry into force of the Rome Statute for Albilion. Finally the accused have been charged with the responsibility of crimes within the jurisdiction of the ICC. [1.1] ALBILION S REFERRAL TO THE COURT IS A VALID EXERCISE OF ITS RIGHT AS A STATE PARTY. 8. The Court may exercise its jurisdiction with respect to a crime referred to in Art 5 if, A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with Art 14 [Article 13(a) of the Statute]. Art 14 of the Statute provides that a situation may be referred when crimes are committed in the territory, which are within the jurisdiction of the Court. 9. In the present matter Albilion referred the situation of Bloody Thursday to the OTP on the basis that it is a State Party. Art 127 requires that a written notification be lodged with the Secretary-General of the United Nations. As the procedures established under Art 127 of the Statute of withdrawal are not satisfied, it cannot be assumed that Albilion is no longer a State Party to the Statute. 10. The referral also satisfies the second criterion mentioned above, i.e. of ratione temporis. The situation that is referred in this case had occurred on 17th March 2005, which is well within the Court s temporal jurisdiction. 4

[1.2] THE CHARACTER OF CRIMES COMMITTED BY THE ACCUSED IS SUFFICIENT TO DRAW THE JURISDICTION OF THE COURT. 11. At the stage of the determination of jurisdiction, the Court only has to look into the reasonable apprehension of crime committed by the accused as indicted by the Prosecutor. The issue of the ICC s jurisdiction is distinct from the merits of any claim of criminal responsibility before the ICC. This means that Albilion is not required to establish before this Court that is has an unassailable legal basis [Ambatielos Case at 18]. For instance, the ICJ considered the jurisdiction of an arbitral body in the Ambatielos case and effectively concluded that a claim of a sufficiently plausible character would establish that body s jurisdiction [Ambatielos Case at 18]. 12. The event of Bloody Thursday not only shocked Albilion but the entire world and was perpetrated by the accused Henry Lynch, Thomas Dane and Jackson Cray. The dreadful nature of the acts coupled with their intention to create havoc and colossal destruction clearly illustrate that the accused have committed atrocities that are against the international community as a whole. The killing of 6666 people amounts to crimes against humanity and war crimes as laid down under Art 5 of the Statute which are crimes within the jurisdiction of the Court. It is therefore submitted that the Court has subject matter jurisdiction in this regard. [1.2.1] THE CONFESSION OF THE ACCUSED FURTHER SUPPORTS THE REASONABLE APPREHENSION AND CORROBORATES THE COMMISSION OF CRIME. 13. The accused have committed crimes that are under the jurisdiction of this Court, which is substantiated, in the following arguments. On August 28, 2006, the Albilionese Constabulary arrested three Tiernan nationals Henry Lynch, Thomas Dane and Jackson Cray in St. Rache. After six days of interrogation the accused confessed to being the masterminds of Bloody Thursday. Factually, the accused have confessed to the crime, now coupled with satisfaction of the Court s jurisdiction. The combination of law and fact here has left the Prosecutor and the Pre-Trial Chamber with no doubts regarding the jurisdiction of the case and the subsequent 5

charges framed. The accused therefore cannot challenge the jurisdiction of this Court as they have confessed to the crimes committed. [1.2.2] THE SURRENDER OF THE ACCUSED IS VALID 14. The prohibition of a war crime is a rule of jus cogens [Art 2 of UN Charter and Nicaragua case]. The aut dedere aut judicare principle is commonly used to designate the alternative obligation concerning the treatment of an alleged offender. The obligation may be found in Art 9, entitled Obligation to extradite or prosecute, contained in the Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission as its forty-eighth session in 1996. It states: Without prejudice to the jurisdiction of an International Criminal Court, the State Party in the territory of which an individual alleged to have committed a crime set out in Articles17, 18, 19 or 20, is found shall extradite or prosecute that individual. The Rome Statute in this regard, also gives a choice between exercising jurisdiction over an offender by the State itself or having him surrendered to the jurisdiction of the International Criminal Court. 15. Surrender of a national of another State to an International Tribunal does not violate any principle of International Law nor does it constitute a breach of an international obligation [IMT Judgement, Schraf at 64]. ICC s jurisdiction over non-party nationals argues, when the crime is committed on the territory of a State Party, it is that the territorial State has delegated its territorial jurisdiction to be exercised by the ICC [Scharf, at 63]. Further States under Customary International Law are entitled to try foreign nationals without the consent of concerned nation [Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons: Art 6, 7; Convention on the Suppression of Unlawful Acts against the Safety of Civil Aviation: Art 5, 7]. 16. The surrender of the accused to the ICC is valid, as the accused have confessed to the crimes committed. Albilion only surrendered the accused after their admission of guilt. The surrender of the accused also can in no manner be interpreted as creating obligations to Third States, in this case, Tierna. The surrender is therefore not violative of Art 34 of The Vienna Convention on the Law of Treaties [Brown at 868]. It is submitted that it is the right of Albilion 6

to prosecute the accused based on the territorial principle and the surrender of the accused is in furtherance of this right. [1.2.3] SURRENDER IS IN INTEREST OF JUSTICE. 17. Albilion and Tierna being party to a dispute cannot prove to provide a fair trial. The best choice would be an impartial independent tribunal [Lockerbie Case, in a separate dissenting opinion of Judge El-Kosheri emphasized on a trial by independent forum apart from parties to dispute]. [1.3] THE CRIMES COMMITTED BY THE ACCUSED CONSTITUTE CRIMES AGAINST HUMANITY AS PROVIDED UNDER ART 7 OF THE STATUTE. 18. The tragedy of Bloody Thursday led to the guerilla war campaign against Albilion that finally resulted in the declaration of independence in Tierna. Thus the act of the bombings was committed in relation to the armed conflict that took place later. Bloody Thursday could be considered to be an initiation of a liberation war, i.e. an international conflict. Hence, the bombings were a grave breach of the Geneva Conventions as they were a part of an international conflict, against persons protected by the Geneva Conventions. Civilians are classified as protected persons under the Fourth Geneva Convention of 1949. 19. The accused have committed crimes against humanity of murder as defined in Art 7(1)(a) of The Statute. Art 7(1) lays down that the attack must be directed against a civilian population. The accused bombed eighteen underground railway stations, which resulted in the death of 6666 Albilionese citizens. The clause knowledge of the attack in the definition is also satisfied. Art 30 of the Statute provides for the material elements that are required to be satisfied in order to prove the mental element and knowledge of a crime. 20. Art 30(2) states that a person has intent where: A person means to engage in the conduct and the person means to cause that consequence or is aware that it will occur in the ordinary course of events [Article 30(2)(a)&(b)]. Here the accused had every intent to engage in the conduct of attacking the civilians and they were also fully aware what the consequence of their 7

acts would lead to. The bombing of eighteen underground railway stations implies that it was a planned attack and that the accused had full knowledge of their actions and that their acts would lead to large-scale destruction of persons and property. The International Criminal Tribunal for Yugoslavia in its judgment in Prosecutor v. Tadic, stated that in addition to the intent to commit the underlying offence the perpetrator must know of the broader context in which his acts occur. [Tadic II at 656] [1.4] THE ACCUSED HAVE COMMITTED WAR CRIMES AS STATED UNDER ART 8 OF THE STATUTE. 21. Art 8(2)(a) of the Statute defines the meaning of war crimes. The accused have committed war crimes of willful killing under The Statute. Willful killing against any protected persons or property laid down in the Geneva Conventions constitute a war crime. Willful killing is defined in the Third Geneva Convention of 1949, Art 130 as, willfully causing great suffering or serious injury to body and health. The Additional Protocol I to the Geneva Conventions clarifies the term grave breaches under Art 11(4) as any willful act or omission which seriously endangers the physical or mental health or integrity of any person would constitute a grave breach of this protocol. 22. The accused have also violated Arts 8(2)(b)(i) and 8(2)(b)(iv) of the Statute which are acts intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities and intentionally launching an attack in the knowledge that the attack will cause incidental loss of life or injury to civilians or damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. 23. The acts committed by the accused clearly fall under the above definitions. The aspects of intention and knowledge have been satisfied in the previous issue. There is no question of a military advantage that can be anticipated here as the bombings are in no way connected to any military aspect. They are not TRA sponsored, as they were not carried out in furtherance of any military campaign or plan. This satisfies the clause, clearly excessive in relation to the direct overall military advantage anticipated. The bombing of the eighteen underground railway 8

stations was willful and has caused damage clearly excessive in relation to the direct overall military advantage anticipated. The attacking of civilians is clearly prohibited in international customary law and it is respectfully submitted that the accused is guilty of the above-mentioned crimes. 24. The present situation in Albilion however is not conducive to try crimes of such international importance. The attack led to a series of events, which ultimately resulted in riots, as well as the destabilization of the economy. The referral to the Court is thus justified and is in the best of interests as the perpetrators of the crime would be best brought to justice in an independent international organization. It is hardly conceivable that a grave emergency would not affect the whole nation, for instance grave disturbances of public order taking place in a dependent territory of a State, which do not affect the nation as a whole [Jamie at 29]. Thus, it seems that in a country facing a state of emergency because of the collapse of an individual region s judicial system, the entire national judicial system would be compromised [El Zeidy at 875]. [2] ALTERNATIVELY, IF ALBILION HAD CEASED TO BE A STATE PARTY TO THE ROME STATUTE BY VIRTUE OF THE ALBILIONESE CITIZEN PROTECTION ACT AND THE AGREEMENTS, THE SAID REFERENCE IS NEVERTHELESS INTRA VIRES THE ROME STATUTE UNDER ART 12(3) READ WITH ART 87(5) AND RULE 44 OF THE RULES OF PROCEDURE AND EVIDENCE. 25. In the alternative, the Prosecutor submits that if the Honorable Court finds that Albilion had ceased to be a State Party to the Statute then it is most humbly argued in interest of justice and humanity that the present reference by Albilion be treated as one under Art 12(3).There is a reasonable likelihood that the accused would go unpunished if the matter would be relinquished to Tiernan Courts. An Art 12(3) declaration results in the extension of the personal, temporal and territorial jurisdiction scope of the ICC s jurisdiction. Rule 44(2) of the Rules of Procedure and Evidence provide that a State which has made a declaration under Art 12(3) has consequently accepted the jurisdiction With respect to the crimes referred to in Art 5 of relevance to the situation and the provisions of Part 9, and any rules there under concerning State Parties. 9

26. The ratione temporis jurisdiction of the Court is not violated by a declaration pursuant to Art 12(3). Art 11(1) states that The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. As the crime in question was committed on 17 th March 2005, it is well within the jurisdiction of the Court as the Statute came to effect on 1 st July 2002. 27. The conditions for the exercise of jurisdiction under Art 5 and for the preconditions under Art 12(3) have been satisfied. The criterions for ratione loci, temporis, and materiae have also been met in the light of the stated arguments. 28. Albilion therefore has total competency to refer the situation to the Prosecutor in either scenario irrespective of whether it is a State Party or not, as all the required conditions laid down in the Statute have been complied with. Furthermore it is in the best interests of justice that Albilion has delegated its territorial jurisdiction to the ICC. Albilion is now in a state of destruction and the situation persisting is likely to have an adverse effect on the trial of the case. The possibility of a fair trial can be best met in the ICC and the victims can also acquire adequate compensation for the losses suffered. [B] THE CASE IS ADMISSIBLE BEFORE THE ICC. [3] THE DEFENSE IS BARRED TO RAISE ISSUES OF ADMISSIBILITY IN THIS APPEAL UNDER ART 18(4) READ WITH ART 82, PURSUANT TO SPECIAL REQUIREMENTS STIPULATED IN ART 18(7). 29. The Rome Statute provides for appeal against the Pre-Trial Chamber s ruling on jurisdiction and admissibility. This appeal may be brought by any State concerned [Art 18(4), (7) of the Statute]. The Statute expressly bars objection to admissibility issues in the appeal under Art 18(4) read with Art 82. Art 18(7) clearly lays down that the issues of admissibility under Art 19 can not be raised in an Art 18(4) appeal except on the grounds of additional significant facts or significant change of circumstances. The facts do not show any such change in either country. Therefore, as the express condition precedent stipulated in Art 18(7) is absent, the defense is barred to raise any issue of admissibility and the original ruling of Pre-Trial Chamber on admissibility to admit the case stays final. 10

[4] ALTERNATIVELY, IF THIS HONOURABLE COURT CONSIDERS THE DEFENSE S OBJECTION ON ADMISSIBLITY IN INTEREST OF JUSTICE THEN, THE SUBJECTIVE REQUIREMENTS IN ORDER TO DECLARE THIS CASE INADMISSIBLE BEFORE THE ICC ARE NOT FULFILLED 30. Under the rubric of admissibility in Art 17, the Rome Statute reflects the balance and the complex relationship between national legal systems and the ICC [Schabas at 66]. The Rome Statute simply confirms the recognized principle that individuals are subject to the substantive and procedural criminal laws applicable in the territories in which they act, including laws arising from treaty obligations. [Timbreza at 351] The complementarity principle is intended to preserve the ICC s power over irresponsible States that refuse to prosecute those who commit heinous international crimes. Thus, the ICC may assert its jurisdiction only when it identifies a gap in State jurisdictions, a gap created by the lack of repression [EL Zeidy at 869, 902]. In order to effectively challenge admissibility of this case to the ICC, the representatives of Tiernan Government would have to prove that the case does not meet the requirements of admissibility under Art 19(2)(b) of the Rome Statute. Art 19(2)(b) requires that in order to be inadmissible, a case meets the requirements of Art 17 [Art. 19(2) of the Statute]. [4.1] THE SUBJECTIVE REQUIREMENTS UNDER ART 17 ARE NOT FULFILLED. 31. Art 17 states that a case is inadmissible in the ICC where the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution [Article 17(1)(a) of the Statute]. The prosecution hereby contends that the above mentioned requirements, to rule this case inadmissible before the Court, are not fulfilled. The prosecution in its subsequent submissions asserts why the case is not inadmissible. [4.2] ALBILION AND TIERNA ARE UNABLE TO INVESTIGATE AND PROSECUTE THE ACCUSED. 32. The State must be unable to obtain an accused or key evidence and testimony, and its inability must relate to the total, substantial collapse, or unavailability of its judicial system 11

[Holmes at 41]. In order to be able genuinely to carry out the investigation or prosecution, a national judicial system must not have suffered a substantial or complete collapse of the institutions of the country, including its judicial system [Article 17(3) of the Statute]. 33. A substantial collapse involves one of the following: (i) The State is unable to obtain the accused (ii) The State is unable to obtain the necessary evidence and testimony (iii) The State is unable otherwise to carry out the proceedings [Article 17(3) of the Statute] 34. Certainly, the state of collapse during the conflict and post-occupation would be long lasting; the rebuilding effort that is now necessary will take years, not months. As was the case in the Democratic Republic of the Congo, there is no evidence of Tierna or Albilion having a reasonable prospect for reviving or establishing a functioning judicial system within a reasonable time. [Arsanjani at 22] 35. Both Albilion and Tierna are neither able to sufficiently guarantee the stability of its judicial system, nor can they assure the adequacy of conditions and safeguards that would meet minimum international human rights standards to satisfy the Court. Therefore, the Chamber must deny the request for deferral. To guide its inquiry, the Court is instructed by Art 17(3) in its objective evaluation of inability. The text requires that the Court consider whether there has been a total or substantial collapse which causes the national judicial system to be unable to adequately prosecute. The effects of such a collapse may include, but are not limited to, a judiciary s inability to obtain custody of the accused, necessary testimony or evidence [Article 17 (3) of the Statute]. This lack of adequate national legislation may restrict the willing State to prosecute. This is the current situation of France in relation to war crimes, of Mexico with regard to crimes against humanity, or of Venezuela for the crime of genocide [Terracino at 11]. 36. At this time, both Albilion s and Tierna s Government are newly elected and are still in a post-conflict period of transition. Similarly it is likely that victims and witnesses would be put in danger if they are compelled to adduce evidence in domestic courts of either country and moreover, witnesses will not be accessible to Tiernan courts. 37. In addition Tierna is not a party to the Rome Statute and therefore its domestic legal system considerably lacks recognition of severe international crimes (Art 5 crimes) and 12

subsequently it cannot punish the accused for crimes against humanity and war crimes as specified in the charge-sheet submitted by the OTP. The prosecution of these crimes is as per the rule of jus cogens and a deferral would violate this rule. [4.3] TIERNA IS UNWILLING TO INVESTIGATE AND PROSECUTE THE ACCUSED. 38. To be considered willing to genuinely prosecute a case, a State must ensure that its national criminal prosecution would comply with the principles of due process recognized by international law [Article 17(2) of the Statute]. As a means of providing a defendant with a fair and impartial trial, the Rome Statute provides some express procedural protections within its provisions. If defendants are prosecuted in either of country, there is reasonable likelihood of deprivation of fair trial and a due process observance. 39. Mere declaration; not assuming responsibility and blanket statement of bringing culprits to justice by the then de facto head of Tierna are not sufficient within the scope of Art 17 to render this case inadmissible. Mr. Coogan, Prime Minister and then TRA leader, had made a public statement claiming to bring masterminds to justice soon after the attacks. But till date, they have not carried out any kind of search operation or investigation in that direction even after formation of the de jure Tiernan Government in May 2006. There is a lapse of more than 23 months after tragic event of Bloody Thursday and neither TRA nor the Tiernan Government subsequently did anything to find the masterminds of attack. This may also be characterized as unjustified delay [Article 17(4) of the Statute]. [5] CUSTOMARY AND HISTORICAL EVIDENCE 40. Customary practice suggests that newly formed nations or nations which have just overcome arm conflict are not able to provide sufficient safeguards for fair trial guarantee. Historically, war-wrecked States cannot effectively investigate or try a case due to their lack of resources and will, as well as an educated judiciary and established rule of law [Wald at 319]. In its failed efforts to hold similar judiciary proceedings, Indonesia exemplifies the troubles that occur when States assume such a burden. [Wald at 331-332]. In its assumption of jurisdiction 13

over prosecuting crimes committed during its recent civil strife, Indonesia demonstrated a new State s complete lack of judicial capacity [Wald at 331-332]. Similarly, Serbia, Croatia, and the Srbska Republica have proven their inability to hold proper proceedings against the accused. Cambodia also has shown the shortcomings of domestic courts to handle those accused of war crimes. [Wald at 331-332]. In many countries, such as Cambodia, the reasons for the abysmal state of post-conflict legal and judicial system are complex that is derived from history, culture, socio-political conditions, and basic human and infrastructural capacity. [Linton at 329] In addition eminent scholar Scharf argues that since various treaties permit prosecution of nationals of non-parties, they constitute a precedent for the ICC with respect to the conferral of jurisdiction over nationals of non-parties [Scharf at 103]. [6] ALBILION HAS WAIVED ITS RIGHT OF TRIAL. 41. The principle of complementarity recognizes Albilion s primacy over jurisdiction, but it does not oblige Albilion to try the crime within Albilion. By referring the situation of Bloody Thursday, Albilion has waived its right of first trial and has itself surrendered the accused persons to the ICC. 42. The argument that the accused may still be tried in the domestic courts of either country despite blatancy is without merit. It is hardly conceivable that a grave emergency would not affect the whole nation, for instance grave disturbances of public order taking place in a dependent territory of a State, which do not affect the nation as a whole [Jamie at 29]. Thus, it seems that in a country facing a state of emergency because of the collapse of an individual region s judicial system, the entire national judicial system would be compromised [El Zeidy at 875]. 14

PRAYER FOR RELIEF In the light of the submissions advanced before this Court, it is most humbly prayed to rule in the interest of humanity that: (1) THE RULING OF THE PRE TRIAL CHAMBER BE UPHELD. (2) THE PETITION BY THE TIERNAN REPRESENTATIVES BE DISMISSED IN LIMINE. (3) THE COURT HAS JURISDICTION OVER THE SITUATION AND CASE IS ADMISSIBLE BEFORE IT. (4) THE ACCUSED HENRY LYNCH, THOMAS DAN AND JACKSON CRAY BE PROSECUTED IN THE INTERNATIONAL CRIMINAL COURT BY THE TRIAL CHAMBER. 15

CERTIFICATION We hereby certify that the memorial for GUJARAT NATIONAL LAW UNIVERSITY is the product solely of the undersigned and that the undersigned have not received any faculty or other assistance, other than that allowed for in the Rules, in connection with the preparation of this memorial. Date: September 3, 2007 Mr. Bijan Brahmbhatt Team member Mr. Shamik Bhatt Team member Ms. Megha Chandra Team member Ms. Sheetal Ramdas Team member VIII