Prosecution - Memorial

TEAM CODE: TC 10_P

THE INTERNATIONAL CRIMINAL COURT AT THE HAGUE, NETHERLANDS BEFORE THE TRIAL CHAMBER

CASE NO. 69 OF 2016 (Under Article 13(b) of the Rome Statute)

The Prosecutor

... Prosecution

v. Kivuos Luhar, et al

…Defendant

WRITTEN SUBMISSIONS ON BEHALF OF THE PROSECUTION

SAARC MOOT COURT COMPETITION - 2016

TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………………………... 1 INDEX OF AUTHORITIES ………………………………………………………………………. 2 LIST OF ABBREVIATION ABBREVIATIONS S …………………………………………………………………….…7 STATEMENT OF JURISDICTIO JURISDICTION N ………………………………………………………………. 8 STATEMENT OF ISSUES ………………………………………………………………………... 9 STATEMENT OF FACTS………………………………………………………………................ 10 SUMMARY OF PLEADINGS ……………………………………………………………………. 12 PLEADINGS ……………………………………………………………………………………...

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PRAYER …………………………………………………………………………………………. ………………………………………………………………………………………….

39

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INDEX OF AUTHORITIES

CASES

Strugar , Case No. IT- 01-42-T (ICTY Trial Chamber-II, January 31, 2005). 1. Prosecutor v. Strugar

2. Fritzsche, IMT Judgment, 22 The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg Germany (1946).

3. Government of Israel v. Adolf Eichmann, 36 I.L.R. 5 (D.C. (Jm.) 1961). 4. Prosecutor v. Ahman Harun & Ali Kushyab, Case No. ICC-02/05-01/07 (Decision on the Prosecution Application under Article 58(7) of of the Statute, 27 Apr. Apr. 2007). 2007). 5. Prosecutor v. Akayesu, Case No. ICTR-96-4-T (ICTR Trial Chamber I, September 2, 1998). 6. Prosecutor v. Bagambiki, Case No. ICTR-99-46-T (ICTR Trial Chamber-III, February 25, 2004).

Blagojević & Jokić, Case No. IT-02-60-T (ICTY Trial Chamber-I, January 7. Prosecutor v. Blagojević 17, 2005). 8. Prosecutor v. Dario Kordic et al., Case No. IT-95-14/2-T (26 February 2001). al., Case No. IT-96-23/1-A (12 June 2002). 9. Prosecutor v. Dragoljub Kunarac et al.,

10. Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A (ICTY Appeals Chamber, December 17, 2004). 11. Prosecutor v. Kupreskic et al .,., Case No. IT-95-16-T, (14 January 2000). 12. Prosecutor v. Lubanga, Case No. ICC-01/04-01/06- 8 (Decision on the Prosecutor’s application for a warrant of arrest, 10 Feb. 2006). 13. Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-T (29 November 2002). 14. Prosecutor v. Nicolic, Case No. IT-94-2A (ICTY Appeals Chamber, February 4, 2005). 15. Prosecutor v. Niyitegaka, Case No. ICTR-96-14-A (9 July 2004). 16. Prosecutor v. Niyitegeka, Case No. ICTR-99-46-A (ICTR Appeals Chamber, July 7, 2006). 17. Prosecutor v. Ntakirutimana, Case No. ICTR-96-10-T and ICTR-96-17-T (ICTR Trial Chamber, February 21, 2003). 18. Prosecutor v. Radislav Krstic, Case No. IT-98-33-A. 19. Prosecutor v. Ruggiu, Case No. ICTR-97-32-T (ICTR Trial Chamber-I, June 1, 2001). 20. Prosecutor v. Semanza, Case No. ICTR-97-20-T (ICTR Trial Chamber, May 15,2003). 2


21. Prosecutor v. Seromba, Case No. ICTR-2001-66-I (ICTR Trial Chamber-I, December 13, 2006). 22. Prosecutor v. Stakić, Case No. IT-97-24-T (ICTY Trial Chamber-II, July 31, 2003). 23. Prosecutor v. Tadic, IT-94-1-AR72 (Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995). 24. Prosecutor v. Vasiljević, Case No. IT-98-32-A (ICTY Appeals Chamber, February 25,

2004 ). 25. Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A (ICTY Appeals Chamber, February 20, 2001). 26. Prosecutor v. Duško IT-95-8-1(Judgment on Defense Motions to Duško Sikirica et al, Case No .IT-95-8-1(Judgment Acquit). 27. Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08 ( Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute St atute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009). 28. Prosecutor v. Katanga et al .,., Case No. ICC-01/04-01/07. 29. Prosecutor v. v. Naletilic et al., Case No. IT-98-34-T (31 March 2003). Hassan Ahmad Ahmad Al Bashir , Case No. ICC-02/05-01/09-125 (Decision 30. Prosecutor v. Omar Hassan on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmed

Al Bashir, 4 March 2009). ESSAYS, ARTICLES AND JOURNALS

1. Akhavan, “Enforcement of the Genocide Convention: A Challenge to Civilization”, Harvard Human Rights Journal 29 (1995). 2. Alexander Dale, “Countering Hate Messages that Lead to Violence: The United Nations’ Authority to Use Radio Jamming to Halt Incendiary Broadcasts”, 11 Duke J. Comp. & Int’l L. 109 (2001).

3. Alexander Greenawalt,“Rethinking Genocidal Intent: The Case for a Knowledge -based Interpretation”, (1999) 99 Columbia L Rev 2288. 4. Ameer Gopalani, “The International Standard of Direct and Public incitement to Commit genocide: An Obstacle to U.S. Ratification of the International Criminal Court Statute”, 32 Cal. W. Int'l L.J. 87 (2001).

5. Guglielmo Verdirame, “The Genocide Definition in the Jurisprudence of the Ad -hoc Tribunals”, 49(3) The International and Comparative Law Quarterly 578 (2000). 3


6. Joshua Wallenstein, “Punishing Words: An Analysis of the Necessity of the Element of Causation in Prosecutions for Incitement to Genocide”, 54 Stan. L. Rev. 351 (2001).

7. Kingsley Moghalu, “International Humanitarian Law from Nuremberg to Rome: The Weighty Precedents of the International Criminal Tribunal for Rwanda”, 14 Pace Int’l

L. Rev. 273 (2002). 8. Michael Akehurst, “Custom as a Source of International Law”, 47 Brit. Y.B. Int’l L. 1 (1974-75). 9. R. Murphy, “Gravity Issues and the International Criminal Court”, 17 C.L.F. 281 (2006). 10. Van Shaack, “The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot”, (1997) 106 Yale LJ 2259.

TREATISES AND DIGESTS

1. BRUNO SIMMA, The Charter of the United Nations: A Commentary (New York: Oxford University Press, 1994). 2. CARSTEN STAHN, The Law and Practice of the International Criminal Court (Oxford University Press, 1 st edition 2015). 3. GIDEON BOAS AND WILLIAM SCHABAS, International Criminal Law Developments in the Case Law of the ICTY (Leiden: Martinus Njoff Publishers, 2003). 4. IAN BROWNLIE, Principles of Public International Law (Oxford: Oxford University Press, 2003). 5. Oppenheim’s International Law (9th edn., R. JENNINGS & A. WATTS ED S., London: Peace, 1993). 6. OTTO TRIFFTERER , Commentary On the Rome Statute Of The International Criminal Court, (Hart Publishing, 2nd ed., 2008). 7. WILLIAM A. SCHABAS, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010). 8. WILLIAM SCHABAS, Genocide in International Law (Cambridge: Cambridge University Press, 2000).

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SHORT WORKS

1. FATOU BENSOUDA, Gender and Sexual Violence Under the Rome Statute , in From Human Rights to International Criminal Law: Studies in Honour Of An African Jurist, The Late Judge Laïty Kama, 401-417 (Emmanuel Decaux et. al. (eds.), Leiden/Boston, 2007). 2. M.H. ARSANJANI, Reflections on the Jurisdiction and trigger mechanisms of the International Criminal Court , in: Reflections on the International Criminal Court:

Essays in The Honour of Adriaan Bos (H.von Hebel et al. (eds.), TMC Asser Press, The Hague, 1999). 3. VELERIE OOSTERVELD AND CHARLES GARRAWAY, The Elements of Genocide, in The International Criminal Court: Element of Crime and Rules of Procedure and Evidence (Roy Lee et al. (eds.), New York, 2001). TREATIES

1. Convention on Prevention and Punishment of the Crime of Genocide, (1948) 78 U.N.T.S 277. UNITED NATIONS DOCUMENTS

1. Report of the Secretary-General Pursuant to Paragraph 5 of the Security Council Resolution 808 (1993), U.N. Doc. S/25704 (1993), para. 47. 2. Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law Commission on the Work of its Forty-Eighth Session, 1996, U.N. Doc. A/51/10 (1996). 3. Interim Report of the Commission of Experts Established Pursuant To Security Council Resolution 780 (1992), UN Doc. S/35374. 4. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General: Pursuant to Security Council Resolution 1564 of 18 September 2004 (Geneva, 25 January 2005). 5. Secretariat Draft Convention on the Crime of Genocide, U.N. Doc. E/447. 6. UN Doc. A/C.6/SR.128. 7. U.N. Doc. A/CONF.183/C.1/SR. 8. UN Doc. A/CONF.183/C.1/SR.4. 9. Basic Principles of a Convention on Genocide, UN Doc. E/AC.25/7. 5


STATUTES

1. International Criminal Court, Elements of Crime, 2011. 2. Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994). 3. Statute of the International Criminal Tribunal for the former Yugoslavia, U.N. Doc. S/RES/827 (1993). 4. The Rome Statute, 2002. INTERNET SOURCES

1. http://www.hiil.org 2. http://www.icc-cpi.int 3. http://www.iccnow.org 4. http://www.icty.org 5. http://www.ilsa.org 6. http://www.ssrn.com 7. http://www.un.org 8. http://www.unictr.org 9. http://www.westlawinternational.com

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LIST OF ABBREVIATIONS

Art.

Article

G.S.C.

Global Security Corp.

Hon’ble.

Honourable

I.C.C.

International Criminal Court

I.C.T.R.

International Criminal Tribunal for Rwanda

I.C.T.Y.

International Criminal Tribunal for the former Yugoslavia

I.L.C.

International Law Commission

Mr.

Mister

O.T.P.

Office of the Prosecutor

S.A.F.

Special Armed Forces

S.C.

Security Council

Sec.

Section

Statute

Rome Statute

U.N.

United Nations

Vol.

Volume

Z.L.F.

Zogmai Liberation Front

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STATEMENT OF JURISDICTION

It is hereinafter most respectfully submitted that the Prosecutor of this International Criminal Court has the jurisdiction to exercise this petition under Article 13(b) of t he Rome Statute of the International Criminal Court, 2004. Article 13(b) of the Statute states as follows -

“The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in accordance with the provisions of this Statute if:

[…] (b) A situation in which one or more of such cr imes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United

Nations.”

The Prosecution humbly submits to the jurisdiction of this Hon’ble Court.

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STATEMENT OF ISSUES

ISSUE 1: WHETHER THE HON’BLE COURT HAS JURISDICTION TO HEAR THE MATTER AND WHETHER THE MATTER IS ADMISSIBLE BEFORE THE COURT?

ISSUE 2: WHETHER THE DEFENDANTS ARE GUILTY OF COMMITTING GENOCIDE U NDER

ARTICLE 6 OF THE STATUTE?

ISSUE 3: WHETHER THE DEFENDANTS ARE GUILTY OF COMMITTING CRIMES AGAINST

HUMANITY U NDER ARTICLE 7 OF THE STATUTE?

ISSUE 4: WHETHER THE DEFENDANTS ARE I NDIVIDUALLY R ESPONSIBLE FOR COMMITTING

GENOCIDE A ND CRIMES AGAINST HUMANITY?

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STATEMENT OF FACTS

1. Pangaea is the largest continent comprising of over 80 States. On 26 January, 2000 the Xaroian Empire broke into three independent countries – Zogmai, Sonada and Tukhda. The Xaroian influence led to the introduction of democracy in the three Pangaean nations. 2. In 2004, Sonada witnessed a revolution. The army stepped in and took over the operations of the Government. On the other hand, Tukhda witnessed three successive inconsistent coalition governments only to witness the same fate as Sonada. The army took over the governance of Tukhda in 2007 and it appointed a 15-member Revolutionary Council headed by the Army Chief. 3. Kehsihba Mavihs, was a Xaroian Leader and was elected as the Prime Minister of Zogmai in the 2013 elections. He passed an ordinance to nationalize all mining activities in the country. However, the President of the country, Kivuos Luhar, acting in contravention to the provisions laid down in the Constitution rejected the request of the Cabinet. This led to separate factions of supporters for both the President and the Prime Minister. The state of affairs in Zogmai begin to retrograde. The Bawlis led by Luhar got utmost support of the neighbouring radical Bawli Leaders. The Prime Minister of Sonada, General Raknahj Atimorap, assisted the Bawli group of Zogmai by sneaking in arms, ammunitions and troops in civilian clothes. 4. On 25th day of August, 2014, Kehsihba Mavihs died when his car was ambuscaded. The Pro-Mavihs Xaroians believed that this was executed by the Pro-Luhar militants who had crossed the borders of Tukhda. A national emergency was proclaimed by the President, who appointed General Radam Idnar as the chief of the Zogmain armed forces by Luhar. He was authorised to take all the necessary actions required to suppress the civil war and extirpate all the pro-Mavihs militancy by the official order of 28th August, 2014. 5. Nayas Mavihs stepped into the shoes of the late Kehsihba Mavihs and took over the leadership of the Pro-Mavihs insurgents. He raided the cluster of nine villages in Chumta. The tribes of Chumta were believed to be the firm supporters of the President. The entire population of 15000 including women and children were beheaded. Even the UNESCO protected ancient Bawli temples were completely ruined. 6. Under the command of General Idnar, the SAF were led by Lt. General Tyrion Pega and partners of the GSC to mount an attack on the Xaroian villages of the Pekka region. Nayas

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Mavihs, along with 150 of his supporters, somehow, managed to flee. A regiment of SAF led by Col. John Bolton, a partner in GSC, traced them down and killed them. 7. By the end of December, 2014, the civil war had taken away the lives of over a million in Zogmai. The majority of the victims were the Xaroians. Young Xaro boys were forced to convert and join the SAF. Xaro girls were kidnapped and were forced to cohabit with them so that they would bear Bawli children. Brutality crossed its limits as in some cases, the Xaroian children were forced to mutilate and murder their family members. Any hesitation would lead to death. 8. Acting under Article 99 of the UN Charter, the Secretary-General convened an emergency meeting of the Security Council. On the very first day of March, 2015, the Security Council finally acting under Chapter VII of the Charter, Resolution 1540, declared that a civil war existed in Zogmai and that; there have been commission of acts of genocide and crimes against humanity. All the parties to the conflict were commanded to abstain from any such atrocities. Further, a UN Peacekeeping Force for Zogmai (UNPFZ) was delegated to restore peace and security. 9. The Prosecutor of the International Criminal Court (ICC) carried out the investigation of the case in consonance with the Pre-Trial Chamber proceedings. Meanwhile, the Apex Court of Zogmai has been moved for a writ of mandamus by the Accused persons. A joint trial of all the Accused persons is scheduled to commence at The Hague from 26th February, 2016.

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SUMMARY OF PLEADINGS

ISSUE 1: THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION TO TRY THIS MATTER AND THE MATTER IS ADMISSIBLE

The jurisdiction of the ICC under Article 12, is automatically triggered if any acts falling under article 5 of the Rome Statute are committed by a national or over the territory, of a State Party. The State of Zogmai being a Party to the Rome Statute, brings the Accused persons directly under the jurisdiction of the International Criminal Court. Further, the matter is also admissible before the Court and does not fall under Article 17 of the Statute. The issue of Admissibility being an important facet of the working of the Court, prescribes two tests that are to be satisfied in order to proceed with a Trial. These are the tests of complementarity and gravity. Article 17(1) states that a case is inadmissible when it is being investigated or prosecuted by a State that has jurisdiction over it. In such circumstances the Court may only proceed where the State ‘is unwilling and unable genuinely’ to investigate or prosecute the case. In the present

case, the Accused persons have not been tried in the criminal courts of Zogmai and neither has any investigation or arrests been made. The State has remained inactive in relation to the case and is unwilling or unable, within the meaning of Article 17(l) (a) to (c), 2 and 3 of the Statute. Secondly, mass and widespread atrocities falling under Article 5, have been committed against the Xaroian population of Zogmai, by or under the command of the Accused persons, demonstrating sufficient gravity to proceed with a Trial. Hence, this case is admissible before the ICC.

ISSUE 2: KIVUOS LUHAR AND OTHERS ARE GUILTY OF GENOCIDE

The Accused persons in the present case had the intent to destroy, in whole or in part, the Xaroian population in Zogmai, and this is established by the fact that the Zogmain armed forces and the SAF had mounted attacks on Xaroian villages of Pekka region and destroyed the region completely. The majority of the people who were killed by the Zogmain armed forces and SAF were Xaroians. The accused knew that the Xaroians were a protected group under the Rome Statute. The armed forces have committed acts of killing the members of Xaroian group, have caused serious bodily or mental harm to them and have forcibly 12


transferred children to other group. Hence they are liable for committing genocide under Article 6 of the Rome Statute.

ISSUE 3: KIVUOS LUHAR AND OTHERS ARE GUILTY OF CRIMES AGAINST HUMANITY

The Accused persons in the present case have caused attacks that were widespread and systematic, in pursuance of State policy, which can be inferred from the Official order dated 28 August 2014, issued by President Luhar to suppress the civil war. Pursuant to this, the decisions taken by some of the Accused persons in suppressing the rebels and the civil war show that they had explicit knowledge that the Xaroians were being attacked. The crimes such as murder, torture, persecution and other sexual offences committed against the Xaroians, a civilian population clearly proves that the accused have committed crimes against humanity as per Article 7 of the Rome Statute.

ISSUE 4: THE ACCUSED ARE INDIVIDUALLY RESPONSIBLE FOR COMMITTING GENOCIDE AND CRIMES AGAINST HUMANITY

The Accused are persons who held high positions in the Government as well as the military. It is submitted that all the Accused persons have committed offences punishable by the Court, as per provisions of the Rome Statute either by committing the act, aiding the acts or by way of ordering/authorizing the acts as per Article 25 of the Rome Statute. Hence, each of them can be tried individually for crimes committed. The Accused persons being military commanders and superior officers of the military i.e. the Zogmain Armed Forces and the SAF, are additionally responsible for being tried for the crimes of genocide and crimes against humanity that were committed during the Zogmain civil war, as they failed to effectively stop the forces or the subordinates that they led or controlled, from committing such crimes.

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PLEADINGS

ISSUE 1: THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION TO TRY THIS MATTER AND THE MATTER IS ADMISSIBLE 1.

The International Criminal Court has jurisdiction to try the present matter as per Articles 5, 11, 12 and 13 of the Rome Statute. The case is also admissible before the Court as per provisions of Article 17 of the Rome Statute of the ICC.

1.1 THE ICC HAS JURISDICTION

2. To prove the jurisdiction of the ICC, three things must be met. Firstly, the offence

ratione materiae is found in the list of offences mentioned in Article 5. Secondly,

precondition for the ICC to exercise jurisdiction must be met. Thirdly, the case must be initiated as per the provisions of Article 13 i.e. triggering the jurisdiction of ICC. 1

1.1.1. JURSDICTION RATIONE MATERIAE 3. The jurisdiction of the International Criminal Court is determined by Article 5 of the

Rome Statute. Article 5 states that “The Court has jurisdiction in accordance with this

Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of ag gression.” The ratione materiae is satisfied if the alleged Acts of the Accused fall under any of the offences mentioned above. Hence, any Acts committed that falls under any of the above mentioned offences can be tried by the ICC. 4. All the Defendants i.e. President Luhar, Gen. Radam Idnar, Lt. Gen. Tyrion Pega, Lt.

Col. John Bolton and Chief Colonel D. C. Keviv have committed Acts amounting to the commission of offences of Genocide and Crimes against Humanity that are punishable under Articles 6 and 7 of the Rome Statute respectively. Hence, the ratione materiae is satisfied.

1 OTTO TRIFFTERER ,

Commentary On the Rome Statute of t he International Criminal Court , 548 (Hart Publishing,

2nd edn., 2008). 14


1.1.2. JURISDICTION RATIONE TEMPORIS 5. Article 11 of the Rome Statute deals with the jurisdiction of Court ratione temporis i.e.

the Rome Statute is applicable only in cases where the alleged offences punishable under the Rome Statute are committed in a State after the entry into force of th e Statute. This means that the Acts amounting to offences under the Statute after the coming into force of the ICC i.e. on 1 July, 2002 can be tried by ICC. Ar ticle 11 (2) states that “if a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State.” This essential means that if some State say State A becomes a

party to the Rome Statute on 1 August 2004, then the Rome Statute shall be applicable to crimes committed in that State only after 1 August 2004 and not from 1 July 2002. This is also an important aspect in deciding whether a case can be tried by the Court or not. 6. In the present case, it has been mentioned that Zogmai is a party to the Rome Statute

and all other relevant treaties. Hence it shall be so construed that the Rome Statute became applicable to Zogmai from 1 July, 2002. Hence the acts committed by the Defendants from August 2014 to December 2014 can be tried by the ICC as it has been established to have jurisdiction ratione temporis in the said matter.

1.1.3. JURISDICTION RATIONE PERSONAE AND RATIONE LOCI 7. There are certain pre-conditions to the exercise of jurisdiction by the International

Criminal Court.2 Article 12(1) states that a State that becomes a party to the Statute accepts the jurisdiction of the ICC for offences committed under Article 5. Hence, this necessarily means that any acts amounting to offences as per Article 5 of the Statute, regarding the State which has become a party to the Statute can be tried by the ICC. 8. Article 12(2)(a) deals with ratione loci. Any offences punishable by ICC if committed

on the territory of the State party or on board a vessel/aircraft belonging to the State Party, can be tried by the ICC exclusively. Apart from this Article 12(2)(b) deals with ratione personae i.e. jurisdiction relating to persons. It states that if the offences are

2

Rome Statute of the International Criminal Court, Article 12, U.N. Doc. A/CONF.183/9 (1998). [hereinafter

“Rome Statute”]

15


committed by nationals of States that are parties to the Statute, then the Court can automatically exercise jurisdiction upon those persons, no matter where the offences were committed. 9. The jurisdiction of the ICC will extend naturally to the State of Zogmai as per Articles

12(1) and 12(2)(a), as the offences are committed on the territory of Zogmai which is a party to the Rome Statute. The alleged commission of offences punishable by the ICC have been committed by persons who are nationals of Zogmai in the State of Zogmai. Hence the ICC has both jurisdiction ratione loci and ratione personae to try this matter.

1.1.4 TRIGGERING THE JURISDICTION 10. Article 13 of the Rome Statute deals with the provision that contains the triggering

mechanisms. It is referred to as triggering because the Court can exercise jurisdiction effectively only and only in case any of such mechanisms are employed. These mechanisms are said to provide the ICC with a certain requisite, to exert its jurisdiction over offences that a re punishable under the Rome Statute. Article 13 states that “the Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: a) 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 article 14; b) A situation in which one or more of such crimes appears to have been committed

is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or c) The Prosecutor has initiated an investigation in respect of such a crime in

accordance with article 15. ” 11. In any of the above mentioned three situations, the ICC can exercise its jurisdiction to

try and punish cases made punishable under the Rome Statute. Among the three mentioned above, the referral by the Security Council is important. Any referral that is made by the Security Council to the ICC must confirm to norms mentioned in Article 13(b) i.e. it must be made by the Security Council acting under Chapter VII of the Charter of the United Nations. Article 39 of the Chapter VII of the UN Charter states that “the Security Council shall determine the existence of any threat to the peace,

breach of the peace, or act of aggression and shall make recommendations, or decide 16


what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” Hence Article 13(b) means to say that a

referral can be made by UNSC to the ICC only and only if it has acted in accordance with provisions of Chapter VII. Therefore, there must be a situation in a State whose existence would, according to UNSC, lead to any threat of peace shall be determined by the Security Council. Such situations then shall be voted upon and a Resolution shall be passed by the UNSC declaring that such a situation exists. 12. In the present case, there were widespread attacks alleged to be committed by Zogmain

armed forces against the civilians present in the State of Zogmai. During the outbreak of the civil war, the Bawlis led by Luhar got support from radical Bawli leaders from neighboring places. The Prime Minister of Sonada, General Raknahj Atimorap assisted the Bawli group of Zogmai by sneaking in arms and ammunitions and troops in civilian clothes. The involvement and participation of mutineers from the States of Sonada and Tukhda in the civil war of Zogmai internationalized the issue. Hence, the UNSC acting under Article 39 of the Chapter VII of the UN Charter passed Resolution 1540 and declared that a civil war existed in Zogmai. Pursuant to this, a UN Peackeeping Force for Zogmai (U.N.F.P.Z.) was also deployed with the intent to restore peace and security. 13. Hence, the UNSC referral to the ICC of the situation in Zogmai is completely justified

and has triggered the jurisdiction of the ICC. Now the ICC can take up the matter and prosecute the criminals for commission of offences punishable under Article 5 of the Rome Statute.

1.2. THE MATTER IS ADMISSIBLE IN ACCORDANCE WITH THE R OME STATUTE

14. All matters shall be admissible before the ICC if the preconditions of jurisdiction have

been met in accordance with Article 12 & 13 of the Rome Statute. However, Article 17 of the Rome Statute illustrates those conditions under which a matter shall be inadmissible before the Court. 3The Article imposes three tests of admissibility which are, “complementarity”, double jeopardy and gravity. If these tests are not satisfied, then

the matter becomes inadmissible before the Court. Early discussions of Article 17 focussed on the issue of complementarity as if it were synonymous with admissibility. It has since become clear that in order to determine if a matter is admissible before the 3

Rome Statute, Article 17. 17


ICC, the issues complementarity and gravity have to be addressed. 4 Article 17 states that the ICC may not proceed with a case only when the concerned States are investigating or prosecuting in good faith. 5 However, this condition is not met in the present matter.

1.2.1 ARTICLE 17(1)(A) & (B) ARE NOT APPLICABLE IN THE PRESENT MATTER 15. Article 17 dealing with admissibility issues is the cornerstone of the Rome Statute.

Paragraph 10 of the P reamble and the Article 17(1) state that the ‘ICC established under this statute shall be complimentary to nati onal criminal jurisdictions’, Article 1 reiterates this and Article 17(1) states that a case is inadmissible when it is being investigated or prosecuted by a state that has jurisdiction over it, or when the case has already been investigated and the state has decided not to prosecute. In such circumstances the court may only proceed where the State ‘is unwilling and unable genuinely’ to investigate or prosecute the case. 6 16. The principle of “complementarity” contained in article 17 para 1 (a) and/ (b) is one of

the “underlying principles” of the statute. 7The Pre-Trail Chamber 1, has spoken of complementarity as being the “first part of the admissibil ity test”.8The aim of the statute

is not to negate State sovereignty, but provides for inbuilt safeguards to preserve national interests and judicial integrity on the domestic level. 9 17. Before Prosecutor Luis Moreno-Ocampo took over, in July 2003, the Office of the

Prosecutor commissioned an expert study on what it termed “complementarity in practice”. Several prominent authorities on international criminal law, both academics

and practitioners, participated in preparing a report. 10

4

Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-8 (Decision on the Prosecutor’s application for a warrant of arrest, 10 Feb. 2006) , para 29. (“Lubanga”) 5 Lubanga 6

Rome Statute, Article 17. M.H. ARSANJANI, Reflections on the Jurisdiction and trigger mechanisms of the International Criminal Court , in: REFLECTIONS ON THE INTERNATIONAL CRIMINAL COURT: ESSAYS IN THE HONOUR OF ADRIAAN BOS 67 (H.von Hebel et al. (eds.), TMC Asser Press, The Hague, 1999). 8 Lubanga, at para 29. 9 TRIFFTERER, supra note 1 at 606. 10 International Criminal Court Office of the Prosecutor , Informal Expert paper: The principle of Complementarity in practice , 2003 (March 30, 2009), https://www.icc-cpi.int/iccdocs/doc/doc654724.PDF. 7

(“Informal Expert Paper”) 18


“[…] to decline to exercise jurisdiction in favour of prosecution before the ICC is a step

taken to enhance the delivery of effective justice, and is thus consistent with both the letter and spirit of the Rome Statute and other international obligation with respect to core crimes. This is distinguishable from a failure to prosecute out of apathy and or a desire to protect perpetrators, which may be properly be criticised as inconsistent with the fight against impunity.” 11 18. In effect, the experts had developed a theory of “uncontested admissibilit y” by which a

state respected its obligations to prosecute by failing to prosecute. A state would be judged by its compliance with the duty to prosecute by an analysis of its motives rather than its actions. The Prosecutor himself began to endorse this philosophy, by which the Court’s operations might result from co operation rather than antipathy .”12 19. In Lubanga, the Pre-Trial Chamber determined that no State with Jurisdiction over the

case against Mr. Thomas Lubanga Dylio is acting, or has acted, in relation to such case. Accordingly, in the absence of any acting State, the Chamber need not make any analysis of unwillingness or inability. 13 Similarly, with respect to one of the two Sudanese arrest warrants, the pre-Trail Chamber appeared to accept the Prosecutor submission that, despite the fact that Ali Kushyab had been arrested and was under investigation with respect to the incidents in Darfur, “the investigation undertaken by the Sudanese authorities did not encompass the same conduct which is the subject of the application before the Court” 14 As for the other accused, “there was no indication

that Ahmad Harun is under investigation, nor was there any indication that any prosecution had been initiated against him before national jurisdiction for any crime relating to the situation in Darfur, Sudan” 15 20. Pursuant to the “uncontested admissibility” theory develope d by the Office of the

Prosecutor, the complementarity test is satisfied by inactivity rather than by an overt display of the States unwillingness or inability to proceed. There is no reference to “inactivity” of the national justice system in article 17 para 1. Nevertheless, the concept

has been recognised by one of the Pre-trial Chambers. In Lubanga, Pre-Trial Chamber 11 Informal

Expert Paper supra note 10 at 19. on some policy issues before the Office of the Prosecutor, (September 2003), :http://www.icccpi.int/NR/rdonlyres/1FA7C4C6-DE5F-42B7-8B25- 60AA962ED8B6/143594/030905_Policy_Paper.pdf, p.5. 13 Lubanga, at para 40. 14 Prosecutor v. Ahman Harun & Ali Kushyab , Case No. ICC-02/05-01/07 (Decision on the Prosecution Application under Article 58(7) of the Statute, 27 Apr. 2007) , para 24.(“Kushyab”) 15 Ibid; Prosecutors report to the Security Council: U.N.Doc. S/PV. 5687, p.3. 12Paper

19


1 said: “The first part of the test relates to the national investigations, prosecutions and

trials concerning the case insofar as such case would be admissible only if those States with jurisdiction over it have remained inactive in relation to that case or are unwilling or unable, within the meaning of Article 17(1) (a) to (c), 2 and 3 of the Statute”

16

21. In the present matter, the State of Zogmai has not initiated any investigation or trial

proceedings against the Accused persons. There has been a complete lack of activity on the behalf of the judicial system of Zogmai. The State of Zogmai is under the veil of a National Emergency, which leaves little room for the Judiciary to undertake any form of investigation or Trial. Further, by December 2014, the lives of several Zogmai citizens, a majority of which were Xaroians, were lost. The declaration of a civil war by the United Nations Security Council was made in March 2014 and investigation by the Office of the Prosecutor was commenced soon thereafter. During this period, there were no initiatives undertaken by the State of Zogmai to undertake domestic proceedings or investigations and the Accused persons were neither detained nor were they arrested. This shows the complete lack of willingness and ability of the State of Zogmai to undertake domestic proceedings. 22. Determination of unwillingness must be done in accordance with article 17(2) of the

Rome Statute. Article 17(2) sub paragraph 1, states that if a State is engaging in an investigation or a Prosecution, but is in fact having a sham proceeding to shield the person concerned from criminal responsibility for crimes within the jurisdiction of the Court, such a matter shall be admissible. 17 Further, if the ICC determines that the proceedings were not or are not being conducted independently or impartially and are in fact being conducted in a manner, which is in the circumstances, is inconsistent with an intent to bring the person to justice the case will be admissible. 18The filing of a writ of mandamus before the Apex Court of Zogmai, by the Accused persons, is only an attempt to shield the accused persons from a Trial at the ICC. It is merely a ploy to delay the proceedings, which clearly indicates a violation of due process as required in Article 17(2), making the matter admissible before the ICC. 23. In addition, the act of the Apex Court, by appointing a law officer to as an amicus curia,

during the proceedings at The Hague, demonstrates the assent of the Court in conducting

16

Lubanga, at para 29. supra note 1 at 619

17TRIFFTERER , 18

Ibid. 20


the proceedings at the ICC. Thus, the overt acts of the Sate of Zogmai, imply the presence of “uncontested admissibility”, in accordance with Article 17.

1.2.2 THERE IS SUFFICIENT GRAVITY TO JUSTIFY THE TRIAL 24. The final ground of inadmissibility is where the case is not of sufficient gravity to justify

further action by the ICC. Article 17 para (d) of the Rome Statute states that a case may be declared inadmissible when “it is not of sufficient gravity to justify further action by the Court”19 The Pre-Trial Chamber I in the Lubanga case accorded considerable

attention to the issue of gravity, which it treated as the second prong of admissibility determination. It held that: “The Chamber holds that the following two features must be considered. First, the

conduct which is the subject of a case must be either systematic (pattern of incidents) or large scale. If isolated instances of criminal activity were sufficient, there would be no need to establish an additional gravity threshold beyond the gravity-drive selection of crimes included within the material jurisdiction of the Court. Second, in assessing the gravity of the relevant conduct, due consideration must be given to the “social alarm”

such cond uct my have caused in the international community.” 20 The Pre-Trial Chamber said that the “social alarm” component was particularly relevant, “due to the social alarm in the international community”. 25. The present matter fulfils the criteria of having sufficient gravity, as required to bring a

matter before the ICC. The two features as held in the Lubanga case are present. Firstly, there has been a systematic and widespread killing, torture and eradication of the Xaroian population. Xaroian children have been enlisted as child soldiers in the SAF and have been forced to mutilate and kill their own parents. Xaroian women have been forcefully married to and impregnated by, the Bawali men, all of which have been undertaken and headed by the Accused persons. These incidents are not sporadic in nature and are not isolated incidents. Secondly, the incidents and crimes committed by the accused persons in accordance with Article 5, have caused social alarm in the international Community, causing several human rights violations as well as

19 R.

Murphy, Gravity Issues and the International Criminal Court , 17 C.L.F. 281 (2006). Lubanga, at para 40

20

21


endangering international peace and security. Thus, the present matter does not fall under article 17 (1) for being inadmissible due to insufficient gravity.

1.2.3 THERE CAN BE NO CHALLENGE TO THE JURISDICTION OR ADMISSIBILITY UNDER ARTICLE 19 OF THE STATUTE 26. Article 19 of the Statute regulates the context within which challenges to jurisdiction

and admissibility may be raised by a party having interest in the matter’, ac cording to

the Appeals Chamber. 21 27. Article 19(4) specifies that the challenge must be made ‘prior to or at the

commencement of the trail’. In exceptional circumstances, the Court may grant leave

for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the court, may be based only on article 17(1)(c) that is, ne bis in idem or double jeopardy. 22 The Trial Chamber concluded that once the

confirmation of charges has taken place, the only permissible exceptions concerning admissibility are those based on article 17(1)(c) of the Rome Statute.

23

28. In the present case, in accordance with the decision held in the Katanga judgment, there

has been no Trial undertaken by the State of Zogmai and hence, there can be no challenge to admissibility of the present issue before the ICC under Article 17(1)(c) dealing with the issue of double jeopardy. Thus, the present matter is automatically admissible before the International Criminal Court.

21

Rome Statute, Article 19.

22

The Prosecutor v. Katanga et al . (ICC-01/04-01/07), para 41. (“Katanaga”) Ibid.

23

22


ISSUE 2: KIVUOS LUHAR AND OTHERS ARE GUILTY OF GENOCIDE

29. It is humbly submitted before this Hon’ble Court that, President Kivuos Luhar, Gen.

Radam Idnar, Lt. Gen. Tyrion Pega, Col. John Bolton and Col. D C Keviv are guilty of committing the offence of genocide under Article 6 of the Rome Statute of the International Criminal Court. 2.1 THE INGREDIENTS OF GENOCIDE ARE SATISFIED IN THE PRESENT CASE

Genocide constitutes the most aggravated form of crime against humanity. 24 ‘Genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, 25 as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group.

2.1.1 REQUIREMENT OF INTENT IS SATISFIED 30. One of the necessary factors of the crime of G enocide is that there must be a “special

intent” or dolus specialis. As one can see, Article 6 requires the perpetrator to commit the mentioned acts with “intent to destroy” in whole or in part a national, et hnical, racial

or religious group as such. The International Tribunal for the Former Yugoslavia Appeals Chamber stated that, “genocide is one of the worst crimes to be known to

humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally

24

WILLIAM SCHABAS, Genocide in International Law , 128 (Cambridge: Cambridge University Press, 2000).

(“SCHABAS 2000”) 25 Rome Statute, Article 6; See also, Convention on the Prevention and Punishment of Genocide, Article 2, ( 1951)

78 U.N.T.S. 277. 23


established”.26 This was also the stand taken by the International Criminal Court in the

case of Bashir .27 31. It can be seen that President Luhar authorized Gen. Idnar to take all necessary action to

extirpate all the pro-Mavihs militancy by an official order of 28 th August 2014. It was due to this that Zogmain armed forces went onto massacre anyone who would not support the cause of the President. Apart from this, the SAF was led by Gen Tyrion Pega and other partners of GSC to mount attack in Xaroian villages. This all clearly shows that the Zogmain Armed forces had the intention of destroying. 32. Arguendo there is another approach towards the contextual element under Elements of

Crimes, it can be deduced that emphasis is more on the mental element of perpetrator’s knowledge rather than that of his intent. This approach is known as the “knowledge based approach”.28 The same gained significant approval by the Pre-Trial Chamber I of

the ICC in the Bashir judgment. In its own words, “according to this approach, direct perpetrators and mid-level commanders can be held responsible as principals to the crimes of genocide even if they act without the dolus specialis/specific intent to destroy in whole or in part the targeted group. These people will be liable for committing genocide as long as they are aware that the ultimate purpose of such a campaign is to destroy in whole or in part the targeted group.” 29 Likewise, presence as well as

requirement of the same is also mentioned in Article 30 of the Rome Statute. 30 33. President Luhar, Gen. Idnar, Lt. Gen. Tyrion Pega, Col. D. C. Keviv, and Col. John

Bolton knew attacks on Xaroian villages and targeting more and more of Xaroians during the state of civil war would eventually end up in the group’s destruction.

2.1.2 DESTRUCTION OF WHOLE OR IN PART OF THE GROUP 34. The expression ‘in whole or in part’ may be so construed to mean that it is not intended

that the crime of genocide extend to isolated acts of racially motivated violence. 26

Prosecutor v. Radislav Krstic, IT-98-33-A, at para. 134.(“Krstic”) The Prosecutor v. Omar Hassan Ahmad Al Bashir , ICC-02/05-01/09-125 (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmed Al Bashir, 4 March 2009) , para. 139.(“Bashir”) 28 Alexander Greenawalt, ‘Rethinking Genocidal In tent: The Case for a Knowledge- based Interpretation’ , (1999) 27

99 Columbia L Rev 2288. 29 Bashir ,(Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmed Al Bashir, 4 March 2009), para. 139, n. 154; See also CARSTEN STAHN, The Law and Practice of the International Criminal Court 696 (Oxford University Press, 1 st edition 2015). 30 Rome Statute, Article 30. 24


Therefore, it means that there must be a quantitative threshold. Apart from this, the words ‘in whole or in part’ indicate that the perpetrator need not intend to destroy the

entire group but only a ‘substantial’ part of it.31 Hence genocide is also committed if a ‘significant part’ of the group is destroyed. This significant part may consist of persons of ‘special significance’ to the group, such as the leadership of the group. 32 35. By the end of December 2014, majority of the people amongst the millions who lost

their lives due to this civil war, were Xaroians. This particular group was targeted the most by the Zogmain Armed forces acting under the command of Gen. Idnar and Lt. Gen. Tyrion Pega. It can be stated that this amount constituted a ‘substantial’ part of the Xaroian group of people. 36. The Appeals Chamber of the International Criminal Tribunal for former Yugoslavia

opined in Krstic that in order for someone to be held guilty for perpetrating the crime of genocide, he must have intended to destroy a substantial part of the group. It stated that “the determination of when the targeted part is substantial enough to meet the

requirement may involve a number of considerations such as the numeric size of the targeted group and its prominence within the group. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial”.33

2.1.3 THE XAROS ARE A PROTECTED GROUP UNDER THE STATUTE 37. There are four groups mentioned in Article 6 of the Rome Statute i.e. a national,

ethnical, racial or religious group. Only these four are the groups protected from crimes against genocide. Economic, social and political were not included in this list 34, because the protected groups are broad enough to include almost any population. 38. The Xaroians are a group comprising of people categorized under the heading of

religious group, who are descendants of those people who arrived on Pangea from the continent of Relling. 31 WILLIAM

A. SCHABAS, The International Criminal Court: A Commentary on the Rome Statute 127 (Oxford University Press, 2010) . (“SCHABAS”). 32 The Prosecutor v. Duško Sikirica et al, IT-95-8-1, Judgment on Defense Motions to Acquit, para. 80.(“Sikirica”) 33 Krstic, para. 12. 34 UN Doc. A/C.6/SR.128; B. Van Shaack, The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot , (1997) 106 Yale LJ 2259. 25


39. Arguendo in Akayesu, the Trial Chamber of the International Criminal Tribunal for

Rwanda stated that, “the list is an ejusdem generis list comprising all ‘stable’ groups,

constituted in a permanent fashion and the membership of which is determined by birth.”35 The Xaroians, though arrived from a different continent i.e. the continent of

Relling to that o f Pangea, can be classified as a stable group as in the group’s membership is determined by birth. Only people who are born to them can be classified as Xaroians.

2.1.4 EXPLICIT MOTIVE TO DESTROY THE XAROS WAS PRESENT 40. The words ‘as such’ means that there must be an explicit display of motive that is

required to prove the case of genocide. The Appeals Chamber of the International Criminal Tribunal for Rwanda opined that “the expression ‘as such’ is an important element of genocide. It clarifies the provisions’ requirement of a specific intent to

commit genocide. Nevertheless, it does not prohibit a conviction for genocide in a case in which the perpetrator was also driven by other motivations that are legally irrelevant in this context.”36 41. The fact that the complete demolition of the Pekka region due to bombardments and

the destruction of the 12 th century Fort of Dowhill, esteemed educational institutions, and the forests of Winterfell all depicted the urge to seek revenge. The targeting of the Xaroians by the Zogmain armed forces and SAF all showed that the administration in the State of Zogmai had an explicit motive to destroy the Xaroians who were a nonBawli group.

2.2 THE CLASHES THAT OCCURRED IN ZOGMAI CONSTITUTE GENOCIDE

42. That the acts committed by President Luhar, Gen. Radam Idnar, Lt. Gen. Tyrion Pega,

Col. D. C. Keviv and Col. John Bolton amounts to the commission of the offence of Genocide under Article 6 (a), (b) and (c) of the Rome Statute of the International Criminal Court.

35

Prosecutor v. Akayesu, Case No. ICTR-96-4-T (ICTR Trial Chamber I, September 2, 1998) (“Akayesu”). Prosecutor v. Niyitegaka , Case No. ICTR-96-14-A, (9 July 2004), para. 53.(“ Niyitegaka”)

36

26


2.2.1 KILLING MEMBERS OF THE GROUP 43. As per Article 6(a) of the Rome Statute, killing members of the group would constitute

genocide. The “Elements of Crimes” use the word ‘caused death’ interchangeably with that of ‘killed’. In Akayesu, the Trial Chamber of the International Criminal Tribunal for Rwanda held that “in that sense, it includes causing involuntary homicide as well as intentional killing.”37 During the state of civil war, most of the people among the

millions who lost their lives were Xaroians killed by the Zogmian armed forces. 2.2.2 CAUSING SERIOUS BODILY OR MENTAL HARM 44. Article 6(b) of the Rome Statute talks about the perpetrator causing serious bodily or

mental harm. In the Elements of Crimes, a footnote to Article 6(b) states that “this

conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.”38 Causing serious bodily or mental harm does not necessarily mean that the harm is permanent and irremediable”. 39 45. Mutilation and murder of family members of young Xaroian children amounts to

causing of serious bodily harm and this would also cause them mental harm to a great extent. Apart from this forced conversions, forced pregnancy would all lead serious physical and mental harm. 2.2.3 FORCIBLY TRANSFERRING CHILDREN FROM ONE GROUP TO ANOTHER 46. Article 6(e) of the Rome Statute deals with the issue of Genocide by forcibly

transferring children from their original group to other. This act of genocide refers to the forcible transfer of children that result in a loss of their original identity as a group. Footnote to the relevant provision in the Elements of Crimes states that “the term ‘ forcibly’ is not restricted to physical force, but may include threat of force or coercion,

such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage o f a coercive environment.” This provision holds good only in those situations where in the person or persons who are forcibly so transferred, are under the 37

Akayesu.

38

VELERIE OOSTERVELD AND CHARLES GARRAWAY , The Elements of Genocide , in T HE I NTERNATIONAL CRIMINAL COURT: ELEMENT OF CRIME A ND R ULES OF PROCEDURE A ND EVIDENCE 41-56 (Roy Lee et al. (eds.), New York, 2001). 39 Akayesu, para. 502. 27


age of 18. The principle of ‘knowledge - based approach’ finds a place here as it is stated that the ‘ perpetrator knew or should have known that the person or persons so transferred were under the age of 18.’ 40 47. Young Xaro boys in civil war stricken Zogmai were forced by the Zogmain armed

forces to convert. Due to this, the population of the Xaro group went on to decline considerably and this led to destruction, in whole or in part, of the Xaro group. All this happened with the knowledge of the Defendants and under their command in the present case.

ISSUE 3: KIVUOS LUHAR AND OTHERS ARE GUILTY OF CRIMES AGAINST HUMANITY 48. It is humbly submitted before this Hon’ble Court that, President Kivuos Luhar, Gen.

Radam Idnar, Lt. Gen. Tyrion Pega, Col. John Bolton and Col. D C Keviv are guilty of committing the offence of crimes against humanity under Article 7 of the Rome Statute of the International Criminal Court. 3.1 THE INGREDIENTS OF GENOCIDE ARE SATISFIED IN THE PRESENT CASE

49. The expression ‘crimes against humanity’ means any of the following acts when

committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Here any of the following acts includes acts such as murder, torture, rape, sexual slavery and other sexual offences, and crimes that require effective State policy discriminations such as persecution and the crime of apartheid.41 Clause (2) to Article 7 deals with explanations to each of the crimes mentioned in Article 7(1). The number of trials and convictions at the ad hoc tribunals is more for commission of crimes against humanity rather than genocide. More often genocide is viewed as an aggravated form of crime against humanity of extermination and persecution. 42

40

Elements of Crimes, Article 6(e), Genocide by forcibly transferring children. Statute, Article 7(1). 42 SCHABAS, supra note 32 at 144. 41 Rome

28


3.1.1 NEXUS BETWEEN CRIMES AGAINST HUMANITY AND ARMED CONFLICT 50. The Article 5 of the Statute of International Criminal Tribunal for Yugoslavia stated

that “crimes against humanity are punishable when committed in armed conflict, whether international or internal in character.” 43 Later in the same year, the Secretary General of the UN reported that “Crimes against humanity are aimed at any civil ian

population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character.”44 A similar view was taken at the time

of adopting the Statute of the International Criminal Tribunal for Rwanda when the connection with armed conflict was dropped by the Security Council. 45 This stand was later re-affirmed by the Appeals Chamber in the Tadic case that “it is a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict.”46 This seems to be the stand taken during the drafting

of Rome Statute. 51. Hence, there is no mention of want of armed conflict in Article 7 of the Rome Statute

to prosecute perpetrators for crimes against humanity. And Ar ticle 22 states that “the definition of a crime mentioned therein shall be strictly construed and shall not be extended by analogy.” Hence the Trial chambers at the International Criminal Court

cannot demand for a want of armed conflict situation to prosecute. Hence. this is the reason why it is generally considered that crimes against humanity can be even punished for acts perpetrated during times of peace. 47 52. In the present situation, a non-international armed conflict was present in the State of

Zogmai, and the acts of destruction of villages, ancient sites, forests and educational institutions by the Zogmain armed forces were committed in furtherance of it. Due to the civil war situation brought in place due to the presence of this NIAC also led, to a certain extent, to the destruction in whole or in part of the Xaroian group by the Zogmain armed forces.

43

Statute of the International Criminal Tribunal for the former Yugoslavia, U.N. Doc. S/RES/827 (1993), annex. Report of the Secretary-General Pursuant to Paragraph 5 of the Security Council Resolution 808 (1993), U.N. Doc. S/25704 (1993), para. 47. 45 Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994), annex., Article 4. (“Statute of I.C.T.R.”) 46 Prosecutor v. Tadic, IT-94-1-AR72 (Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995), para. 141. 47 U.N. Doc. A/CONF.183/C.1/SR.3; UN Doc. A/CONF.183/C.1/SR.4; See also SCHABAS, supra note 32 at 147. 44

29


3.1.2 ATTACK TO BE WIDESPREAD OR SYSTEMATIC 53. The words ‘widespread or systematic’ and ‘civilian population’ in Art 7(1) has been

directly influenced by the provisions of Statute of International Criminal Tribunal for Rwanda. 48 It is disjunctive i.e. the attack can either be widespread or systematic or both. It has been already held by the Pre-trial Chamber that it is enough if the Court is satisfied that the attack is widespread; it need not consider it to be systematic. 49 Pretrial Chamber I has decided that ‘widespread’ refers to “the large scale nature of the attack, as well as the number of victims.” 50 It must be “massive, frequent, carried out

collectively with considerable seriousness and directed against a large number of civilians.”51 It involves an attack “carried over a large geographical are a or an attack in a small geographical area directed against a large number of civilians.”52 A widespread

attack may be “cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude.” 53 The expression ‘systematic’ means “the organized nature of the acts of violence and to the improbability of their random occurrence.”54 54. It was held in Kunarac et al. that the Court while hearing the cases must take into

account the number of victims and the nature of the acts. 55 Apart from this the Court must also look into the aspect as to whether there was any policy or plan pursuant to the attack or not. 55. The commission of acts by the Zogmain armed forces involves a widespread attack i.e.

over a million people were targeted in the whole of Zogmai and it was also systematic as in the fact that the Zogmain armed forces ever since the attack on the Pekka region of Xaroian villages, has targeted Xaroians most of the time and has carried out attacks on them in a systematic way.

48

Statute of I.C.T.R., 1994, Article 3.

49

The Prosecutor v. Jean-Pierre Bemba Gombo , ICC-01/05-01/08 (Decision Pursuant to Article 61(7)(a) and (b)

of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009), para. 82.(“Bemba”) 50 Bashir , para. 81. 51 Katanga, paras 395 and 398. 52 Bemba, para. 83. 53 Prosecutor v. Dario Kordic et al., Case No.IT-95-14/2-T (26 February 2001), para. 179. (“Kordic”) 54 Bashir , para. 85. 55 Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23/1-A (12 June 2002), para. 95. (“Kunarac”) 30


3.1.3 PRESENCE OF STATE OR ORGANIZATIONAL POLICY 56. The Elements of Crimes state that: “it is understood that ‘policy to commit such attack’

requires that the State or organization actively promote or encourage such an attack against a civilian population.” 56 Footnote to the same provision reads thus: “A policy

which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.” 57 Such a policy must be

thoroughly organized, follow a regular pattern and may be made either by groups of persons who govern a specific territory or an organization capable of committing such acts.58 The policy need not be formalized. 59 If the attack is planned, directed or organized, unless it is done spontaneously or in isolation, then such act will satisfy the criterion.60 57. In the present situation, though there is no explicit mention of the policy of the State, it

is known that the Zogmain armed forces led under the orders of President Luhar had attacks planned and directed against the Xaroians ever since the start of the civil war situation in Zogmai. The fact that he was a ultra-conservative Bawli and ordered the extirpation of all pro-Mavihs militancy i.e. ones who supported Prime Minister Mavihs (who was a Xaroian himself) shows that the policy or the internal propaganda of the State as well as the armed forces was to destroy the Xaroian group, in whole or in part.

3.1.4 ATTACK WAS DIRECTED AGAINST ‘CIVILIAN POPULATION’ 58. Article 7(1) of the Rome Statute is very much similar to that of the provisions contained

in the Statutes of the ad hoc tribunals in as much it requires that the attack be directed against ‘any civilian population.’ 61 The International Criminal Tribunal for the former

56

International Criminal Court, Elements of Crime 2011, ICC-ASP/1/3 at 108, U.N. Doc. PCNICC/2000/1/Add.2

(2000), Crimes against Humanity, Introduction, para. 3.(“Elements of Crime”) 57 Ibid. 58

Katanga, para. 398. Bemba, para. 81.

59 60

Ibid.

61 Statute

of the International Criminal Tribunal for the former Yugoslavia, UN Doc. S/RES/827 (1993), annex, Article 5 (“Statute of I.C.T.Y.” ); Statute of the I.C.T.R., Article 3. 31


Yugoslavia stated that an attack “as a course of conduct involving the commission of

acts of violence 62 and such acts need not involve military attack. 63 Any mistreatment to the civilian population other than the use of armed force also constitutes an attack. 64 In Bemba, the Pre-trial Chamber has held that the mere commission of the acts referred to

in Article 7(1) of the Rome Statute is enough to constitute a n ‘attack’ and nothing else is required to be proved in addition. 65 59. The aggrieved must be a ‘civilian population’ and not some limited and randomly

selected number of individuals. 66 It has been held that the population must be predominantly civilian in nature, although non-civilians may be present 67 and may include military personnel as well. 68 Apart from this the International Criminal Tribunal has laid down certain other requirements to prove that an ‘attack’ was ‘so directed’

against a civilization population. These include the means and method used in the attack, the status of victims, their number, the nature of the crimes committed in its course, the resistance to the assailants at that time and such other requirements. 69 60. The attacks on the Xaroian villages of the Pekka region and of people from other region,

establishes the fact that the attack was actually made against civilian population residing in those areas. Apart from this, it is even mentioned that offences punishable in the act were committed against a large number of people of whom the Xaroians are in majority (as they were expressly targeted). Around a million people who had lost their lives at the end of the civil war are mostly civilians.

3.1.5 THE DEFENDANTS HAD KNOWLEDGE OF THE ATTACK 61. The requirement of knowledge is expressly mentioned in Article 7(1) and also in the

Elements of Crimes, lacking which, a person cannot be prosecuted for crimes against humanity.70 The Pre-trial Chamber I in Katanga stated that: “the reference to knowledge means that the perpetrator knew that there was an attack on the civilian 62

The Prosecutor v. Naletilic et al., Case No. IT-98-34-T(31 March 2003), para. 233.(“ Nal etilic”)

63

Elements of Crimes, Crimes against Humanity, Introduction, para. 3. Kunarac, para. 86. 65 Bemba, para. 75. 66 Kunarac, para 90. 67 Kordic, para. 180. 68 Prosecutor v. Kupreskic et al ., Case No. IT-95-16-T, (14 January 2000), para. 568. (“ Kupreskic”) 69 Kunarac, para. 90. 70 Rome Statute, Article 30. 64

32


population and that his or her acts or omissions to act were part of it. Therefore the knowledge part and the perpetrator’s awareness can be inferred from circumstantial

evidence, such as: po sition of the accused in the military.”71 It has been held that the knowledge element should not be interpreted in such a way as to mean that the perpetrator had knowledge of all the characteristics of the attack or all the precise details of it. But the mental element in this clause shall be satisfied if the perpetrator intended to further such an attack by his acts or omissions. 72 There is no need for the prosecution to prove that the accused knew about the details of the attack or approved of the context in which his or her acts occurred. 73 62. President Luhar who issued orders and authorized the attacks on the people knew the

consequences of his actions. Gen. Idnar, Lt. Gen. Tyrion Pega, and Col. John Bolton were all high ranking military commanders and officials who knew of the attack on the civilian population as well as on other in the State of Zogmai. Through their position as commanding officers of the Zogmain armed forces and the SAF, they were in full knowledge of their acts and the consequences of the same. As far as Col. D. C. Keviv is concerned, he was part of the Government of Tukhda and his government promoted the acts of the Zogmain Liberation Front who carried on attacks against the Xaroian strongholds along the borders of Zogmai. Hence he would have the requisite knowledge that this promotion of the said group would lead to the destruction of the Xaroian group. 63. Apart from the above requirement, there is no need to prove the presence of

discriminatory intent or motive on the part of the perpetrator for the offence of crimes against humanity except for the crime of persecution. Persecution is the only offence under this category that needs the prosecution to prove that the perpetrator had a discriminatory intent or motive against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender. 74

71

Katanga, para -401. Id. at 402. 73 Kunarac, para. 102. 72

74

Rome Statute, Article 7(1)(h). 33


3.2 ACTS

COMMITTED IN

ZOGMAI,

BY THE ACCUSED, CONSTITUTE

CRIMES

AGAINST

HUMANITY

The accused in the present case have committed various acts of crimes against humanity and shall be prosecuted and indicted on the following four counts: 3.2.1. COUNT I - MURDER [ART. 7(1) (A)] 64. Murder as a crime against humanity is punishable under Article 7(1) (a) of the Rome

Statute. The formal requirements under this article is that the perpetrator must have killed one or more persons, as part of a widespread or systematic attack directed against a civilian population, and that he had the knowledge. A footnote to this provision in the Elements of Crimes states that “the term ‘killed’ is int erchangeable with the term ‘caused death’.75 This could mean that the act of killing a person or persons may not be

intentional but can also be an involuntary homicide. 65. It has been stated already that the Zogmain armed forces under the active command of

the Defendants, committed acts of murder against civilian population mostly comprising of Xaroians.

3.2.2 COUNT II - TORTURE [ARTS. 7(1) (F) & 7(2) (E)] 66. The crime against humanity of torture is defined as ‘the intentional infliction of severe

pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.’ 76 The explanation is provided

under the Elements of Crimes. 77 A footnote to this provision states that there is no need for proving any other purpose for this crime. The ad hoc tribunals have stated that, in order to qualify as a crime against humanity of torture, the act or omission must ai m at obtaining information or confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person. 78

75

Elements of Crime, Article 7(1)(a). Rome Statute, Article. 7(2)(e). 77 Elements of Crimes, Article 7(1)(f). 78 Kunarac, pp. 142, 155. 76

34


67. The acts of discriminating against the Xaroians in the present case can be seen

explicitly. The Xaros were both physically as well as mentally tortured. In some cases, the Xaroian children were made to mutilate and murder their own family members. This involved a lot of physical torture and mental torture to the young Xaroians. 68. The ad hoc tribunals have recognized that the offence of Rape can be included under

the definition of crime against humanity of torture. They stated that “sexual violence

necessarily gives rise to severe pain and suffering, whether physical or mental and in this way justifies its characterization of the act of torture.” 79 The Xaro girls were

kidnapped and were made to cohabit with members of the Zogmain armed forces. Most cases involved sexual violence as well.

3.2.3 COUNT III - RAPE AND OTHER SEXUAL VIOLENCE [ART. 7(1) (G)] 69. Article 7(1) (g) of the Rome Statue deals with the crimes against humanity of rape and

other sexual offences. The term ‘other sexual offences’ includes sexual slavery,

enforced prostitution, forced pregnancy, enforced sterilization and other offences of comparable gravity. These crimes are mostly ‘gender neutral’ (with exception of forced

pregnancy) and they have been added in the Rome Statute to address the problems the victimization of women in times of mass atrocities. 80 70. Forced Pregnancy - It is the only offence under the Article 7(1) (g) that has been

defined. The expression ‘forced pregnancy’ has been defined as “the unlawful

confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.”81 71. The Xaro girls were kidnapped and were made to cohabit with the members of the

Zogmain armed forces and SAF. This led to acts of rape and other sexual offences being committed by the armed forces personnel. The Xaro girls were made to bear Bawli children which amounts to commission of offences of forced pregnancy. This would in

79

Kunarac, paras. 149 - 151. FATOU BENSOUDA, Gender and Sexual Violence Under the Rome Statute , in FROM HUMAN RIGHTS TO

80

INTERNATIONAL CRIMINAL LAW: STUDIES IN HONOUR OF AN AFRICAN JURIST, THE LATE JUDGE LAÏTY KAMA,

417 (Emmanuel Decaux et. al. (eds.), Leiden/Boston, 2007). 81 Rome Statute, Article 7(2)(f). 35

401-


turn lead to the destruction of the Xaroian population, in whole or in part, leading to their decline.

3.2.4 COUNT IV - PERSECUTION [ARTS. 7(1) (H) & 7(2) (G)] 72. Persecution is an offence that contemplates racial or other form of discriminatory acts

or policies that might in fact be authorized by a legal regime i.e. it is a crime of discrimination.82 The acts of persecution at times may lead to a plan for the intentional destruction of a group. 83 Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender etc. basis is a punishable offence.84 This offence may involve infliction of physical or mental harm, or infringements upon individual freedom. 85 73. In the present case, acts were committed against the Xaroian group who are identified

on the basis of their religion. The acts thus committed by the Zogmain armed forces amount to Persecution as it is discriminatory in nature and targeted only a specific group of people.

ISSUE 4: THE ACCUSED ARE INDIVIDUALLY RESPONSIBLE FOR OMMITTING GENOCIDE AND CRIMES AGAINST HUMANITY 74. The accused persons are responsible to be prosecuted individually under Articles 25

and 28 of the Rome Statute, for the offences of genocide and crimes against humanity that they have committed.

4.1. THE ACCUSED ARE INDIVIDUALLY RESPONSIBLE FOR CRIMES COMMITTED UNDER THE R OME STATUTE

75. Commission of any crime that falls under the jurisdiction shall be punishable as per

Article 25. All the persons who are liable to be prosecuted by the Court, are held

82

Kupreskic, para. 621. SCHABAS, supra note 32 at 175.

83

84 Rome

Statute, Article 7(1)(h).

85

Prosecutor v. Mitar Vasiljevic , Case No. IT-98-32-T (29 November 2002), para. 246 .(“Vasiljevic”) 36


individually responsible for the crimes perpetrated. 86 Liability under Article 25(3)(a) is referred to as ‘principle’ and such other liability under Article 25(3) clauses (b), (c) and (d) are referred to as ‘accessory’ liability.87 76. The Court not only takes into account the physical perpetrators of the crime but those

who are not present at the scene of the crime, despite them controlling or for being the mastermind behind the commission of such a crime. This is because they decide as to whether and how the offence shall be committed. 88 Hence the Court can hold those who physically commit the crime, those who control the will of physical actors and those who control the offence. 89 77. Ordering, soliciting or inducing as per Article 25(3)(b) has been held to be an act of a

person having authority, who uses it to convince another to commit an offence. 90 Such ordering of the commission is closely related to command or superior responsibility, except for the fact that there need not be any proof of an actual order been given.

91

In

case of Article 25(3)(b), the commander’s mens rea is important rather than that of the

subordinate.92 Aiding may refer to some form of physical assistance and abetting suggests encouragement. 93 If the commission is manifested in these forms, then they might attract a lesser sentence than the forms mentioned earlier. 94 78. In the present case, President Luhar and Gen. Radam Idnar shall be held individually

responsible under Article 25(3)(a) for being the mastermind behind the attacks and controlling the SAF & its activities, respectively. President Luhar shall be additionally liable under Article 25(3)(b) for expressly giving out Official order to the armed forces Chief Gen. Idnar, for the suppression of civil war and for extirpation by any means necessary. Lt. Gen. Tyrion Pega shall be held liable for acts committed by him as well as the subordinates under him as per Articles 25(3)(a) and (b). As the military commander or officer, he led the attacks of the SAF on civilian population. As fas as Col. Bolton and Col. D C Keviv are considered, they shall be liable for aiding the commission of offences i.e. Col. Bolton for training and leading the SAF and Col.

86

Rome Statute, Article 25(2). Lubanga, at para 78. 88 Katanga, at para 485. 89 Bashir , at para 210. 90 Krstic, at para 483. 91 Kayishema et al., ICTR-95-1-T (Judgment and Sentence, 21 May 1999), paras. 223-224. 92 Blaskic (IT-95-14-A), Judgment, 29 July 2004, para. 42. 93 SCHABAS, supra note 32 at 434. 94 Sljivancanin (IT-95-13/1-A), Judgment, 5 May 2009, para. 407. 87

37


Keviv for shielding the activities of ZLF who were responsible for commission of crimes against Xaroians.

4.2. THE RESPONSIBILITY OF MILITARY COMMANDERS FOR CRIMES C OMMITTED UNDER THE R OME STATUTE

79. The Rome Statute under Article 28(a) talks about the criminal responsibility of the

military commanders. A commander is noted as one who is the person at the highest level of command, regardless whether there are few soldiers under his or her command. 95 They are either formally or legally appointed as commanders. Such persons shall be held responsible for crimes committed by his forces. Persons who are not legally appointed yet carry out the role of a military commander by exercising effective control, shall also be liable under this provision. 96 80. Gen. Radam Idnar, who was the Chief of the Zogmain armed forces and who

commanded the SAF along with Lt. Gen. Tyrion Pega, Col. Bolton and Col. Keviv, knew about the attacks and other heinous acts that were committed by their subordinates and their forces upon the Xaroians and other people during the civil war. They have also failed to take necessary steps to stop such atrocities.

4.3. THE OFFICIAL CAPACITY OF ACCUSED DOES NOT BAR THE JURISDICTION OF THE COURT

81. The jurisdiction of the Court extends to every person equally and the official capacity

of any person attributed to them by customary international law, does not exempt the Court from trying and prosecuting such persons. This will also not lead for reduction of any sentence issued on that person by the Court. 97

95

Bemba, at para. 408.

96

Id., at para. 419. Rome Statute, Article 27.

97

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Prosecution - Memorial

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