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Team 3
Prosecution Memorial
International Criminal Court
Moot Competition
4-5 March 2011

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Prosecution Memorial, Team 3

Original: English Date: 4-5 March 2010

.

PRE-TRIAL CHAMBER VI

Before: Intra Moot Court Competition Panel

SITUATION IN THE STATE OF BANCHU

IN THE CASE OF

PROSECUTOR (CLAIMANT) Vs. SOTTE XIJOUTU BANCHA (RESPONDENT)

Prosecution Memorial

Team No. 3

MOST RESPECTFULLY SUBMITTED

COUNSELS FOR THE CLAIMANT

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Table Of Content

LIST OF ABBREVEATIONS…………………………………………………………………04

INDEX OF AUTHORITIES…………………………………………………………………...05

STATEMENT OF JURISDICTION…………………………………………………………..07

STATEMENT OF FACTS.................................................................................................................08

STATEMENT OF ISSUES.................................................................................................................10

SUMMARY OF ARGUMENTS.........................................................................................................11

WRITTEN PLEADINGS...................................................................................................................14

1. WHETHER THE ICC HAS THE JURISDICTION TO TRY THE CASE AGAINST MR. BANCHA?

1.1 WHETHER THE CRIMES COMMITTED BY S.X. BANCHA ARE WITHIN THE JURISDICTION

OF THE ROME
STATUTE.......................................................................................................14

1.2 WHETHER, IN THE LIGHT OF THE PROTEST MADE BY THE STATE OF BANCHU, THE
CASE

IS ADMISSIBLE BEFORE THE

ICC..........................................................................................18

1.3 WHETHER THE CONFLICT HAS BEEN INTERNATIONALISED OWING TO THE

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PARTICIPATION OF VOLUNTEERS FROM

GOGOLISTAN..........................................................21

2. WHETHER THE ACCUSED IS GUILTY OF FOLLOWING CRIMES:

2.1 CRIME OF GENOCIDE UNDER ARTICLES 6(a), (b), (c) AND 25(3) (a), (b) OF THE ROME
STATUTE............................................................................................................................21

2.2 CRIMES AGAINST HUMANITY UNDER ARTICLES 7(1) (a), (g) AND 25(3) (b) OF THE
ROME STATUTE..................................................................................................................25

2.3 WAR CRIMES UNDER ARTICLES 8(2) (b) (i), (iv), (ix) OF THE ROME
STATUTE............27

3. WHETHER THE ARREST AND SUBSEQUENT TRANSFER OF MR. BANCHA TO ICC IS

LEGAL..28

PRAYER..........................................................................................................................................30

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LIST OF ABBREVIATIONS

1. ICC........................................................................................................International criminal court

2. ICTR………..................................................................International criminal tribunal for Rwanda
3. ICTY……….................................................International criminal tribunal for former Yugoslavia
4. PTC………...........................................................................................................Pre-trial Chamber
5. ILC ……….....................................................................................International Law Commission
6. Art. ……….............Article (unless otherwise noted, Art. designates articles of the Rome Statute)
7. Statute ………...................................................Rome Statute of the International Criminal Court
8. No. ………..........................................................................................................................Number
9. ZNP ………....................................................................................................Zawal National Party
10. Chamber ……….............................................................................................Pre-Trial Chamber 6

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INDEX OF AUTHORITIES

A. PRIMARY SOURCES

1. I.INTERNATIONAL MATERIALS AND STATUTES Charter of the United Nations, 1945.....................................14

2. STATUTE OF THE INTERNATIONAL TRIBUNAL FOR THE FORMER YUGOSLAVIA..17
3. International Criminal Court Rule of Procedure and Evidence, 2002...........................................21
4. International Criminal Tribunal for the Former Yugoslavia Rule of Procedure and Evidence,....23
5. Convention on the Prevention and Punishment of the Crime of Genocide, 1948.........................27
6. Rome Statute of International Criminal Court, 2002...................................................14, 17, 24, 29
II. JUDICIAL DECISIONS

1. Prosecutor v. Anto Furundzija, Judgment, Case No IT-95-17/1-A (Appeals Chamber, 21 July,

2000). ................................................................................................................................................
2. The Prosecutor v. Omar Hassan Ahmad Al Bashir., ICC-02/05-01/09-125 (2011)..........................
Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, Case No. IT-94-1-T

3. ¶ 46 (ICTY Appeals Chamber, Oct. 2, 1995). .................................................................................

B.SECONDARY SOURCES
10. I. BOOKS AND TREATISESSELECTED BASIC DOCUMENTS RELATED TO ICC .ISKAMP,THE
HAGUE, 2009………........................................................................................................................3

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11. SCHABAS ,WILLIAM A., AN INTRODUCTION TO ICC .CAMBRIDGE UNIVERSITY PRESS NEW
YORK,2001……………………………………………………………………………………...7
12. SCHABAS,WILLIAM ,GENOCIDE IN INTERNATIONAL LAW .Cambridge University Press, 2000........12
13. DUNLAP,WILLIAM. V, JOHN CAREY AND R.JOHN PRITCHARD , INTERNATIONALHUMANITARIAN

LAW PROSPECTS .TRANSNATIONAL PUBLISHERS, 2006..................................................................12

1. II. ARTICLES AND JOURNALSABIMBOLA A. OLOWOFOYEKU, Bias and the informed observer:
a call for a return to Gough, 68 (2) CAMB.L.JOUR. 388 (2009).....................................................9
Kevin Jon Heller, The Rome Statute in Comparative Perspective, Melbourne Legal Studies
Research Paper no 370

2.

III. INTERNET SOURCES

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

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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 the 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 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.

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STATEMENT OF FACTS

 Background of Banchu (Copeegua)

There were three Chief Tribes inhabiting the region of Copeegua namely Gogo, Banchas and
Zawals and was last successfully invaded in 1792 by the Imperial Autarchy of Xanadu, and
till recently remained in power. In the meantime, Copeegua was made subject to all treaties
by requisite constitutional procedure including the Rome Treaty of 2004. Banchas strongly
opposed it and proclaimed that we will not abide by the same. As a result of massive
violence, and the inability of the Xanadians to bear the economic burden of Copeegua, a
decision was taken to affect a partition of Copeegua, and eventually it was partitioned into
Gogolistan and Banchu in May, 2008.

 Origin of conflict between Banchas and Zawals in Banchu

Mr. Bancha became the head of state of Banchu in August, 2008, in addition to being the
head of the executive and General of Armed Forces. The people who opposed the
concentration of powers in one individual were brutally murdered in November 2008. In
February 2009, Bancha revealed that his secret service had come to know of a deadly
conspiracy aimed at removing him from the office by Zawals tribe who were trying to occupy
key positions in the corporate world and army top brass. In the months of February and
March, the police rounded up thousands of Zawals on the basis of suspicion of having links
with the alleged conspiracy. These arrests caused a lot of uproar among Zawals. Keechu
Zawal, the leader of Zawals used this opportunity to mobilize the people under the banner of
Zawal National Party (ZNP). He immediately launched guerrilla warfare against the officials
who were spearheading the crackdown against Zawals. On hearing of Keechu’s faction,
Banchu ordered his troops to launch an all out offensive against the ZNP.

 Participation of Gogolistan and Internationalisation of the conflict

The army offensive against the ZNP rebels claimed over a hundred thousand lives.
Meanwhile, ZNP the rebels started receiving liberal aid from Zawals living in Gogolistan
who enrolled themselves into ZNP after crossing over into Banchu. Hajuna Owaris, Prime
Minister of Gogolistan, though did not give official support to the ZNP rebels; he advocated
their cause and felt that Zawals had been victimized. There were unconfirmed reports
circulating in Banchu that the Secret service Agency (SSA) of Gogolistan was actively
supporting the ZNP rebels and training them. Bancha gave his army a deadline of fifteen days

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to finish off the militants. He proclaimed that the life of the nation was more important than
the life of a few Zawals and directed the commanders to ‘take all the necessary steps to curb
the rebels’.

 Destruction of property and War crimes

On 23rd March, 2009, the Banchu army conducted a raid against the ZNP rebels near the town
of Bokato in the Central Highlands. During the course of the raid, the Calypso temple
structure was badly damaged by bombing. The ZNP rebels were joined unexpectedly by
another group of rebels, and hence the Banchu army was forced to retreat. It appeared that the
Banchu army would be destroyed until it moved to place the town hospital and the adjacent
college building between themselves and the Zawalis rebels. The rebels could not shoot at the
Banchu army without hitting the people in these buildings, so they placed themselves at a
distance of 500 meters from these buildings and fired mortar shells on the rebels, due to
which the Banchu army had to retreat.

 UNSC Intervention and arrest and subsequent transfer of Mr. Bancha

The situation in Banchu caught the attention of the Security Council, and it passed a
resolution (Resolution No. 1723) on 15th April, 2009, referring the case to the ICC, and
requested the ICC to commence investigation on the case. In the meanwhile, Bancha was
abducted by certain unknown individuals from Zibotu, capital of Banchu, on 21st April, 2009
and was found unconscious in an abandoned car in Bolgo, a town in Gogolistan at the border
of Banchu and Gogolistan. He was taken into custody by the Gogolistan police. The office of
the Prosecutor (ICC) started investigation in the case on 25th April, 2009 and the
investigation concluded on 17th July, 2009. Pursuant to the application of the prosecutor for
the issuance of arrest warrant against Mr. Bancha under Article 58 of the Rome Statute, the
pre‐trail chamber issued an arrest warrant against Mr. Bancha and requested Gogolistan to
surrender Mr. Bancha to the ICC.

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STATEMENT OF ISSUES

I. WHETHER THE ICC HAS THE JURISDICTION TO TRY THE CASE AGAINST MR.
BANCHA.
A. WHETHER THE CRIMES COMMITTED BY S.X. BANCHA ARE WITHIN THE
JURISDICTION OF THE ROME STATUTE.
B. WHETHER, IN THE LIGHT OF THE PROTEST MADE BY THE STATE OF BANCHU,
THE CASE IS ADMISSIBLE BEFORE THE ICC.
C. WHETHER THE CONFLICT HAS BEEN INTERNATIONALISED OWING TO THE
PARTICIPATION OF VOLUNTEERS FROM GOGOLISTAN.

II. WHETHER THE ACCUSED IS GUILTY OF FOLLOWING CRIMES:

A. CRIME OF GENOCIDE UNDER ARTICLES 6(a), (b), (c) AND 25(3) (a), (b) OF THE
ROME STATUTE.
B. CRIMES AGAINST HUMANITY UNDER ARTICLES 7(1) (a), (g) AND 25(3) (b) OF
THE ROME STATUTE
C. WAR CRIMES UNDER ARTICLES 8(2) (b) (i), (iv), (ix) OF THE ROME STATUTE.

III. WHETHER THE ARREST AND SUBSEQUENT TRANSFER OF MR. BANCHA TO ICC IS
LEGAL.

SUMMARY OF ARGUMENTS

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1. WHETHER THE ICC HAS THE JURISDICTION TO TRY THE CASE AGAINST MR.
BANCHA?
 The case is under the jurisdiction of ICC. The ICC has jurisdiction over the case as
under Article 13(b) of the Statute which says Security Council acting under the
chapter VII of the Charter of United Nations can refer any case to the prosecutor in
which one or more crimes appear to have been committed which are enlisted under
Article 5 of the Rome Statute. The crimes which have been committed here by Mr.
Bancha are the crimes enlisted in the Article 5 which are the following-
(a) The crime of Genocide
(b) Crimes against Humanity
(c) War crimes

 With regard to the paragraph 10 of the preamble which says that and the Article 17(1)
which ‘ICC established under this statute shall be complimentary to national 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. The present case
of Mr. Bancha has never been tried in the criminal courts of Banchu which makes the
inability and unwillingness of the State to prosecute Mr. Bancha. The State has
remained inactive in relation to that case or was unwilling or unable, within the
meaning of Article 17(l) (a) to (c), 2 and 3 of the Statute. Hence, this case is
admissible before the ICC.

 Many volunteers in Gogolistan enrolled themselves with the ZNP after crossing over
into Banchu. This made the participation of people of Gogolistan active and in fact
led to the involvement of another state and its people in the social unrest of Banchu.
There were unconfirmed reports circulating in Banchu that the secret service agency
(SSA) of Gogolistan was actively supporting the ZNP rebels and training them.
Bancha was abducted by certain individuals from Zibotu, the capital of Banchu, on
21st April, 2009 and was found unconscious in an abandoned car near the headquarters
of the UN Peacekeeping forces in Bolgo, a town in Gogolistan at the broader of

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Banchu and Gogolistan. He was taken into custody by the Gogolistan police. He was
in the custody till the time ICC requested Gogolistan to surrender Mr. Bancha. So,
these facts clearly internationalise this case.

2. WHETHER THE ACCUSED IS GUILTY OF FOLLOWING CRIMES: CRIME OF GENOCIDE,

CRIMES AGAINST HUMANITY, WAR CRIMES?
 The Army offensive against ZNP rebels claimed over a hundred thousand lives.
Human Rights Group claim that ninety percent of those who were killed belonged to
the Zawals category. Going by some unconfirmed reports about the Secret Service
Agency (SSA) of Gogolistan activities in Banchu, Mr. Bancha stepped up his
offensive and made many speeches filled with anger towards Zawalis and gave a
fifteen day deadline to his army to finish off all the Zawal militants. Committed
genocide by causing serious bodily or mental harm to members of each target group,
under Article 6(b) of the Rome Statute, by using the state apparatus, the Armed
Forces to cause serious bodily or mental harm to members of these groups through
acts of rape, other forms of sexual violence, torture and forcible displacement of
members of these groups, with intent to destroy the groups as such, in whole or in
part, in violation of Arts. 6(b) and 25(3) (b) of the Rome Statute.

 In accordance with Article 25(3) (b), a person shall be held liable for punishment if he
orders, solicits or induces such a crime which in fact occurs or is attempted. National
and international newspapers reported complaints of women who claim to have been
raped by soldiers who confessed that their actions were motivated by a desire to
change the demographic condition of the region.

 Violation of the Article 8(2) (b) (ix) of the Statute by intentionally directing attacks
against hospitals and buildings dedicated to education, and launching an attack in the
knowledge that such an attack would cause incidental loss of life or property. While
attempting to finish off the militants, the Banchu army was forced to place the
hospital and college of the town of Bokato between themselves and the rebels.

3. WHETHER THE ARREST AND SUBSEQUENT TRANSFER OF MR. BANCHA TO ICC IS

LEGAL?

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 After the Security Council passed a resolution on 15 th April 2009 referring the
situation in Bancha to the ICC and requested the ICC to commence investigation in
the case, the ICC declared its intention to start investigation in the case and after
proper investigation for about 3 months, the prosecutor submitted its application to
the pre-trial chamber for issuance of arrest warrant against Mr. Bancha under Article
58 of the Rome Statute. Pursuant to the application, the pre‐trail chamber issued an
arrest warrant against Mr. Bancha and requested Gogolistan to surrender Mr. Bancha
to the ICC.  

 Article 58(a) of the statute states that “At any time after the initiation of an
investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor,
issue a warrant of arrest of a person if, having examined the application and the
evidence or other information submitted by the Prosecutor, it is satisfied that: There
are reasonable grounds to believe that the person has committed a crime within the
jurisdiction of the Court.”

 The crimes which Mr. Bancha has committed and therefore is to be tried for are
Genocide under Article 6(a) (b) (c) of the Rome Statute, War crimes under the Article
8 and Crimes against humanity under Article 7 of the Rome Statute, hence are
completely within the jurisdiction of the court. These facts along with others which
have been discussed are relied upon for the purposes of establishing both reasonable
grounds to believe that Sotte Xijoutu Bancha has committed crimes within the
jurisdiction of the Court pursuant to Article 58(1) (a) of the Rome Statute and the
necessity of his arrest pursuant to Article 58(1) (b) of the Rome Statute. Hence, the
arrest and subsequent transfer of Mr. Bancha to ICC is legal.

WRITTEN PLEADINGS

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1. Whether the ICC has jurisdiction and admissibility to try the case against S.X.
Bancha?

The ICC has jurisdiction over the case as under Article 13(b)1 of the Statute which says
Security Council acting under the chapter VII of the Charter of United Nations can refer
any case to the prosecutor in which one or more crimes appear to have been committed
which are enlisted under Article 52 of the Rome Statute. The crimes which have been
committed here by Mr. Bancha are the crimes enlisted in the Article 5 which are the
following-

(d) The crime of Genocide

(e) Crimes against Humanity
(f) War crimes

1.1 Whether the crimes committed by Sotte Xijoutu Bancha are within the
jurisdiction of the Rome Statute-

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (article
2)3 defines genocide as “any of the following acts committed with intent to destroy, in whole
or in part, a national, ethnical, racial or religious group …” including:
(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;

All such acts are violations of human rights, and may also be crimes against humanity
or war crimes, depending on the context in which they were committed. The
Convention confirms that genocide, whether committed in time of peace or war, is a
crime under international law which parties to the Convention undertake “to prevent
and to punish” (article 1). As it is a part of international customary law, the
Convention is considered applicable in all countries, irrespective of whether they have
signed or ratified it. Where genocide does occur, the International Criminal Court,
1
Rome Statute of the International Criminal Court, http://www2.ohchr.org/english/law/criminalcourt.htm.
accessed February,2011
2
Ibid.,
3
Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by Resolution 260 (III) A of
the U.N. General Assembly on 9 December 1948. Entry into force: 12 January 1951.

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which is separate and independent from the UN, is empowered to investigate and
prosecute those most responsible, if a State is unwilling or unable to exercise
jurisdiction over alleged perpetrators.4

The Article 19(1)5 of the Statute requires the Chamber to satisfy itself that any case
brought before it falls within the jurisdiction of the Court which reads as- The Court
shall satisfy itself that it has jurisdiction in any case brought before it. The Court may,
on its own motion, determine the admissibility of a case in accordance with article 176
In the case of The Prosecutor v. Omar Hassan Ahmad Al-Bashir7 , it was laid down
by The ICC-
“To fall within the Court's jurisdiction, a crime must meet the following three
conditions: it must be one of the crimes mentioned in article 5 of the Statute, that is to
say, the crime of genocide, crimes against humanity and war crimes; the crime must
have been committed within the time period laid down in article 11 of the Statute; and

4
United Nations, “Preventing Genocide and Mass Atrocities: A United Nations system-wide
endeavour,” United Nations Website, http://www.un.org/en/preventgenocide/adviser/un_role.shtml. accessed
February 2011.
5
Supra note 1
6
Rome Statute, art. 17

1.Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is
inadmissible where: (a) 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; (b) The case has
been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person
concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by
the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further
action by the Court.

2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the
principles of due process recognized by international law, whether one or more of the following exist, as
applicable: (a)The proceedings were or are being undertaken or the national decision was made for the purpose
of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court
referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is
inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not
being conducted independently or impartially, and they were or are being conducted in a manner which, in the
circumstances, is inconsistent with an intent to bring the person concerned to justice.

3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or
substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or
the necessary evidence and testimony or otherwise unable to carry out its proceedings.
 
7
The Prosecutor v. Omar Hassan Ahmad Al Bashir., ICC-02/05-01/09-125 (2011).

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the crimes must meet one of the two alternative conditions described in article 12 of
the Statute8
[...]
article 12 (2)9 does not apply where a situation is referred to the Court by the Security
Council acting under Chapter VII of the Charter, pursuant to article 13(b) of the
Statute. Thus, the Court may, where a situation is referred to it by the Security
Council, exercise jurisdiction over crimes committed in the territory of States which
are not Party to the Statute and by nationals of States not Party to the Statute.10

1. In relation to the jurisdiction ratione materiae11, the said conducts give rise to genocide,
crimes against humanity under Article 5(1)(a)12 of the Rome Statute insofar as they-
i. took place in the context of an armed conflict not of international character on the
territory of the Bokato in central Highlands region, which had already started in Feb.
2009.
ii. Were part of a widespread or systematic attack directed against the Zawal population
of Banchu, which majorly started after a speech allegedly given by S.X. Bancha in March
2003.
iii. were not only intended to destroy a substantial part of the Zawal group as such, but
could by themselves effect such destruction or were at least part of a manifest pattern of
similar conduct against the targeted group.

2. In relation to the jurisdiction ratione loci13 and ratione temporis14 under Article 1115, the
Court received the referral by the Security Council in the form of the resolution (No.
1723) on 15th April, 2009 pursuant to Article 13(b) of the Statute. And on the 17 th July,

8
ICC-Ol/04-lOl-tEN, para. 85.
9
Supra note 1.
10
ICC-02/05-01/07-l-Corr,para. 16.
11
Jurisdiction Ratione Materiae, otherwise known as subject-matter jurisdiction refers to the court's authority to
decide a particular case. It is the jurisdiction over the nature of the case and the type of relief sought; the extent
to which a court can rule on the conduct of persons or the status of things.
12
Office of the United Nations High Commissioner for Human Rights, ohchr website,
http://www2.ohchr.org/english/law/criminalcourt.htm. accessed February, 2011.
13
Territorial Jurisdiction-Dutch Civil Law,Jurisdiction website
http://www.dutchcivillaw.com/jurisdiction/legalsystem022.htm. accessed February, 2011.
14
Ibid.,
15
1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.
2. 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, unless that State has
made a declaration under article 12, paragraph 3.

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2009 the investigation by the office of Prosecutor had concluded and an application for
the issuance of warrant was submitted under Article 58(2) of the Rome Statute.16
Prosecution Application refers to conduct, including unlawful attacks against civilians,
murder, extermination, rape, torture, alleged to have taken place from Feb., 2009 to the
time of the filing of the Prosecution Application in areas and villages of Banchu under
Article 6(a)(b)(c).
Banchu was a part of the Country Copeegua, which was partitioned in May 2004 into two
countries namely Banchu and Gogolistan, was a signatory to the Rome Statute in 2004 17
but Banchu which is the country involved, after the Partition did not sign or revoke the
Rome Treaty. Since Banchu is not a party to the treaty but as stated under the Article
13(b) of the Rome statute states that-

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.

3. Finally, in relation to the jurisdiction ratione personae 18, the Chamber considers that,
insofar as the Banchu situation has been referred to the Court by the Security Council,
acting pursuant to article 13(b) of the Statute, the present case falls within the
jurisdiction of the Court despite the fact that it refers to the alleged criminal liability
of a national of a State that is not party to the Statute, for crimes which have been
allegedly committed in the territory of a State not party to the Statute.

16
Rome Statute, art, 11(2)
2. The application of the Prosecutor shall contain:
(a)     The name of the person and any other relevant identifying information;

(b)     A specific reference to the crimes within the jurisdiction of the Court which the person is alleged
to have committed;

(c)     A concise statement of the facts which are alleged to constitute those crimes;

(d)     A summary of the evidence and any other information which establish reasonable grounds to
believe that the person committed those crimes; and

(e)     The reason why the Prosecutor believes that the arrest of the person is necessary.

17
The State parties to the Rome Statute of the International Criminal Court, Website ICC, http://www.icc-
cpi.int/menus/asp/states%20parties/the%20states%20parties%20to%20the%20rome%20statute?lan=en-GB.
Accessed February, 2011.
18
United Nations Conference on Trade and Development, “Dispute Settlement”(New Yok,2003)p.13-15.

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1.2 Whether the present case is admissible before the ICC-

With regard to the paragraph 1019 of the preamble which says that and the Article 17(1) 20
which ‘ICC established under this statute shall be complimentary to national criminal
jurisdictions’, Article 121 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.

In this (Al Bashir’s case22) regard, the Chamber has already held that:
[...] the admissibility test of a case arising from the investigation of a situation has two
parts. The first part of the test relates to national investigations, prosecutions and trials
concerning the case at hand 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(l) (a) to (c), 2 and 3 of the
Statute. The second part of the test refers to the gravity threshold which any case must
meet to be admissible before the Court23
In its 10 February 2006 Decision, the Chamber put forward the only existing
definition of article 17(l) (d) gravity threshold provided for to date in the
jurisprudence of the Court.

19
Emphasizing that the International Criminal Court established under this Statute shall be complementary to
national criminal jurisdictions
20
1, Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is
inadmissible where: (a) 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 (b) The case has
been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person
concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by
the Court is not permitted under article 20, paragraph 3;(d) The case is not of sufficient gravity to justify further
action by the Court.
21
An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and
shall have the power to exercise its jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The
jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
22
Supra note 7.
23
ICC-01/04-520-Anx2, paras. 29 and 64.

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According to such definition: any case arising from an investigation before the Court
will meet the gravity threshold provided for in article 17(l)(d) of the Statute 24 if the
following three questions can be answered affirmatively:
1. Is the conduct which is the object of a case systematic or large scale (due
consideration should also be given to the social alarm caused to the international
community by the relevant type of conduct);
2. Considering the position of the relevant person in the State entity, organization or
armed group to which he belongs, can it be considered that such person falls within
the category of most senior leaders of the situation under investigation?; and
3. Does the relevant person fall within the category of most senior leaders suspected
of being most responsible, considering (1) the role played by the relevant person
through acts or omissions when the State entities, organisations or armed groups to
which he belongs commit systematic or large-scale crime within the jurisdiction of the
Court; and (2) the role played by such State entities, organisations or armed groups in
the overall commission of crimes within the jurisdiction of the Court in the relevant
situation?

The present case of Mr. Bancha has never been tried in the criminal courts of Banchu which
makes the inability and unwillingness of the State to prosecute Mr. Bancha. The State has
remained inactive in relation to that case or was unwilling or unable, within the meaning of
article 17(l) (a) to (c), 2 and 3 of the Statute.
According to the definition given by the court in its Feb 2006 decision, there are three
grounds to be proven affirmatively to declare the crime to be of enough gravity-
(i) The conduct which is the object of the case should be systematic and of large scale
enough that it creates a social alarm for the international community. It was accepted
in Rome treaty that there must be a threshold level of the gravity of the inhuman acts
to qualify as crimes against humanity. The two essential elements of the gravity of
alleged acts are “widespread and systematic’.
‘widespread’ relates to the scale of an attack against a civilian population – not an
isolated act but large scale action directed against multiple victims. ‘Systematic’, on
the other hand, carries a connotation of premeditation by an organized group- an
attack carefully planned and undertaken as part of a common policy.

24
Supra ,note 1

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In the present case of Mr. Bancha, the attacks led by the army of Mr. Bancha were
against the Zawals faction of the population of Banchu. The whole group was affected
by the murders, bombings, torture, extortion and rapes led by the army . The evidence
discussed provides grounds to believe that the attack was both systematic, given the
improbability of the random occurrence of the acts, as well as widespread, given that
the frequent acts were carried out with “considerable seriousness and directed against
a large number of civilian victims”. The crimes carried out pursuant to or in
furtherance of an organisational policy were widespread and systematic insofar as
they were committed by an armed force with thousands of soldiers, dispersed
throughout the Banchu areas, and in execution of the orders issued by the Banchu’s
top leader.

He expressly stated that the situation brooks no further delay and extreme steps need
to be taken immediately. He stepped up his offensive and made many speeches filled
with anger towards Zawals conspirators. He proclaimed that life of the nation is more
important than life of a few Zawals and directed the commanders “to take all
necessary steps to curb the rebels”. On 23rd March, 2009 the Banchu Army conducted
a raid against the ZNP rebels near the town of Bokato in the Central Highlands.
The evidence provides grounds to believe that the Bancha’s army perpetrated a
multiplicity of acts that were more than isolated incidents or acts and that the
multiplicity of acts were part of the attack. The high incidence of death and injury
among the civilian victims of armed attacks was not a random occurrence. Bancha
Herald, a national newspaper, reported that been a lot of complaints from local
women who claim that they were raped by soldiers who confessed that their actions
were motivated by a desire to change the demographic composition of the region.

(ii) Considering the position of the relevant person i.e. Mr. Bancha in the entity of
Banchu, armed group which was carrying out the attack against Zawals was
completely under the authority of Mr. Bancha owing to the fact he was the Head of
the State.
(iii) Mr. Bancha was declared the head of the State of Bancha after its partition from
Copeegua. Being at the position of the senior most leader had a great amount of
influence through his army and certainly was at the position of leading an attack of
such a widespread and systematic scale and the role played by the army of the state

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of Banchu was so heinous and grave in nature that under the category of genocide as
stated in Article 6(a) of the Rome Statute which come under the jurisdiction of the
court.

1.3 Whether the conflict has been internationalized owing to the the participation of
volunteers from Gogolistan
Article 3 of the Yearbook of the International Law Commission, 2001 (Vol II, part 2),
states that the characterization of an act of a State as internationally wrongful is
governed by international law. Such characterization is not affected by the
characterization of the same act as lawful by internal law .25 The severe crimes
committed by Mr. Bancha in the territory of Banchu makes the character of the act
internationally wrongful because they are in complete violation of the International
Humanitarian Law under which Genocide, Crimes against Humanity and War Crimes
are grievous and wrongful in nature.26
The Army offensive against the ZNP rebels, following the orders by Mr. Bancha
claimed over a hundred thousand lives in the territory. Meanwhile, the rebels started
receiving liberal aid from Zawals living in Gogolistan. Many volunteers in Gogolistan
enrolled themselves with the ZNP after crossing over into Banchu. This made the
participation of people of Gogolistan active and infact led to the involvement of
another state and its people in the social unrest of Banchu. So, it was now the affair
affecting more than one country.
There were unconfirmed reports circulating in Banchu that the secret service
agency(SSA) of Gogolistan was actively supporting the ZNP rebels and training them.
This attitude angered Bancha and he vowed that his government would teach the
Zawals a lesson for their seditious ways and challenged Owaris and to stop him if he
can.
And finally, Bancha was abducted by certain individuals from Zibotu, the capital of
Banchu, on 21st April, 2009 and was found unconscious in an abandoned car near the
headquarters of the UN Peacekeeping forces in Bolgo, a town in Gogolistan at the
25
Text adopted by the Commission at its fifty-third session, in 2001, and submitted to the General Assembly as
a part of the Commission’s report covering the work of that session. The report, which also contains
commentaries on the draft articles, appears in Yearbook of the International Law Commission, 2001, vol. II (Part
Two). Text reproduced as it appears in the annex to General Assembly resolution 56/83 of 12 December 2001,
and corrected by document A/56/49(Vol. I)/Corr.4.
26
Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge
University Press, 2004), pg. 249.
Ibid.,

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broader of Banchu and Gogolistan. He was taken into custody by the Gogolistan
police. He was in the custody till the time ICC requested Gogolistan to surrender Mr.
Bancha.

The above mentioned two points clearly display the activities occurring in the territory of
Gogolistan which were repercussions of unrest prevalent in Banchu which involved the
transfer of Zawals from Gogolistan to Banchu.

2. WHETHER THE ACCUSED IS GUILTY OF FOLLOWING CRIMES UNDER Art. 58(2)

Pursuant to Art. 58(2) of the Rome Statute, the Office of the Prosecutor has concluded that
there are reasonable grounds to believe that S. X. Bancha bears criminal responsibility under
Art. 25(3) (b) of the Rome Statute for the following crimes:

Count 1
Attack against ethnic and racial groups constituting Genocide
(Article 6(a), (b), (c) and Article 25(3)(a), (b) of the Rome Statute)

1. From Feb, 2009 till the arrest of Mr. Bancha, he committed, through other persons,
genocide of Zawals in Banchu. He gave the orders to the Army of Banchu to launch
an all out offensive against the Zawals and named the brutal attacks as struggle
against Zawals. The Army offensive against ZNP rebels claimed over a hundred
thousand lives. Human Rights Group claim that ninety percent of those who were
killed belonged to the Zawals category. In March, 2009 going by some unconfirmed
reports about the Secret Service Agency (SSA) of Gogolistan activities in Banchu,
Mr. Bancha stepped up his offensive and made many speeches filled with anger
towards Zawalis and gave a fifteen day deadline to his army to finish off all the Zawal
militants.
In the Rome Statute, the Article 6 reads as –

“For the purpose of this Statute, "genocide" means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such:

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(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;”

2. Mr. Bancha committed genocide by causing serious bodily or mental harm to

members of each target group, under Article 6(b) of the Rome Statute, by using the
state apparatus, the Armed Forces to cause serious bodily or mental harm to members
of Zawals through acts of rape, other forms of sexual violence, torture and forcible
displacement of members of these groups, with intent to destroy the group as such, in
whole or in part, in violation of Arts. 6(b) and 25(3)(b) of the Rome Statute.
In Al Bashir’s judgment27 it was held that, “the definition of the crime of genocide in
article II of the Convention on the Prevention and Punishment of the Crime of
Genocide of 1948 ("the 1948 Genocide Convention") does not expressly require any
contextual element. The Majority also notes that article 4 of the Statute of the
International Criminal Tribunal for the former Yugoslavia ("the ICTY") and article 2
of the Statute of the International Criminal Tribunal for Rwanda ("the ICTR") have
adopted the same definition of Genocide as the one provided for in article II of the
1948 Genocide Convention. And the definition of the crime of genocide provided for
in article 6 of the Statute is the same as that included in article II of the 1948
Genocide Convention.” Hence there are no contextual elements to be proven.

Specific elements which need to be proven are two, which are common to the above-
mentioned five categories of genocidal acts provided for in Article 6 of the Statute:
(i) the victims must belong to a particular national, ethnic, racial or religious
group;and (ii) the perpetrator must act with the intent to destroy in whole or in part
that particular group.
In the present case, the victims of the attack belonged to the tribe of Zawals
particularly including women who were raped and tortured mentally and physically.

27
The Prosecutor v. Omar Hassan Ahmad Al Bashir., ICC-02/05-01/09-125 (2011).

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Two, perpetrator i.e. Mr. Bancha acted with the intent to destroy in whole or in part
the ethnic tribe of Zawals. Several Zawals were rounded up on the basis of having
links with the alleged conspiracy of removing him from the office. Out of the hundred
thousand people who were brutally murdered, almost ninety percent were the Zawals.

Count 2
Murder constituting crimes against humanity
(Article 7(1)(a) and Article 25(3)(b) of the Rome Statute)

Pursuant to Art. 7(1) of the Statute, a crime against humanity is constituted if the acts
have been committed as part of a widespread or systematic attack, directed towards
the civilian population, with knowledge of the attack. In August 2008, when Bancha
became the head of the State, certain people opposed the concentration of powers in
one hand. Those who voiced their opinions were brutally murdered. A lot of national
and international newspapers and human rights organizations complained about the
conduct of Bancha army, reporting that they caused terrible bloodshed in all the
Zawal villages they searched while hunting down the members of the ZNP.

In Al Bashir’s case, the Chamber held that,

“in order to constitute a crime against humanity, Article 7(1) of the Statute also
requires that the relevant acts of violence be committed with "knowledge of the
attack" such that the perpetrator "knew that the conduct was part of or intended the
conduct to be part of a widespread or systematic attack against a civilian
population."”98 as discussed in Issue 1.

As the Chamber has already held, such knowledge should "not be interpreted as
requiring proof that the perpetrator had knowledge of all characteristics of the attack
or the precise details of the plan or policy of the State or organization."99 On the
contrary, this Chamber has previously understood this phrase to mean that the
perpetrator knew that there was an attack on a civilian population, and that his or her
acts were a part of that attack.100

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Count 3
Rape constituting a part of crimes against humanity
(Article 7(1) (g) and Article 25(3) (b) of the Rome Statute)

Article 7 of the Rome Statute states:

(1) For the purpose of this Statute, "crime 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:
(g)     Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity.

In accordance with Article 25(3) (b), a person shall be held liable for punishment if he
orders, solicits or induces such a crime which in fact occurs or is attempted. National
and international newspapers reported complaints of women who claim to have been
raped by soldiers who confessed that their actions were motivated by a desire to
change the demographic condition of the region.
For the same Count, in the case of Prosecutor V. Callixte Mbarushimana:
“Having analysed the evidence presented by the Prosecutor, the Chamber is satisfied
that there are reasonable grounds to believe that a series of attacks was carried out by
FDLR troops in the period between January and September 2009 against the civilian
population of the North and South Kivu.”

Count 4
Willful killing constituting a part of war crimes
(Article 8(2)(a)(i), Article 8(2) (a)(ii), Article 8(2)(e)(i) and Article 8(2)(e)(vi) of the
Rome Statute)

In the case of Al Bashir, the Chamber had already held:

[...] according to the Statute and the Elements of Crimes, the definition of
every crime
within the jurisdiction of the Court includes both contextual and specific
elements.

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Hence, the Chamber will first analyze whether there are reasonable grounds to believe
that the contextual elements of the crimes alleged by the Prosecution in the
Prosecution Application are present, and only if the answer is in the affirmative, will
turn its attention to the question as to whether there are reasonable grounds to believe
that the specific elements of any such crime have been met.

In this regard, the Chamber observes that article 8(2)(f) of the Statute, which defines
"armed conflicts not of an international character" for the purpose of article 8(2)(e) of
the Statute, states that:

Paragraph 2 (e) applies to armed conflicts not of an international character and

thus does not apply to situations of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence or other acts of a similar nature. It
applies to armed conflicts that take place in the territory of a State where there
is a protracted armed conflict between governmental authorities and organized
armed groups or between such groups.

The Chamber has also highlighted that article 8(2)(f) of the Statute makes reference to
"protracted armed conflict between [...] organized armed groups", and that, in the
view of the Chamber, this focuses on the need for the organised armed groups in
question to have the ability to plan and carry out military operations for a prolonged
period of time.

Armed conflict in the State of Banchu had started in the month of November, 2008,
and continued till April 2009, lasting for a period of almost six months.

Article 8(2)(a)(i) states:

2. For the purpose of this Statute, “war crimes” means:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely,
any of the following acts against persons or property protected under the
provisions of the relevant Geneva Convention:
(i) Willful killing

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In November 2008, people were brutally murdered on account of voicing their

opinions against S.X. Bancha. He declared emphatically that he had no mercy for
those who betrayed the cause of their nation. He also gave his army a deadline of
fifteen days to finish off the ZNP militants. He vowed to teach the Zawals a lesson
and challenged Owaris to stop him if he could, clearly proving that he willfully
caused the killing of the Zawals.

Count 5
(Violation of laws applicable in international armed conflict constituting war
crimes)
(Article 8(2)(b)(i), Article 8(2)(b)(iv) and Article 8(2)(b)(ix) of the Rome Statute)

As per Article 8 of the Statute,

(2) For the purpose of this statute, “war crimes” means:
(b)     Other serious violations of the laws and customs applicable in
international armed conflict, within the established framework of international
law, namely, any of the following acts:
(i)     Intentionally directing attacks against the civilian population as
such or against individual civilians not taking direct part in hostilities;
(iii)     Wilfully causing great suffering, or serious injury to body or
health;
(iv)    Extensive destruction and appropriation of property not justified
by military necessity and carried out unlawfully and wantonly;

Article 8(2)(b)(ix) of the Statute was violated by Bancha by intentionally directing

attacks against hospitals and buildings dedicated to education, and launching an
attack in the knowledge that such an attack would cause incidental loss of life or
property. While attempting to finish off the militants, the Banchu army was forced to
place the hospital and college of the town of Bokato between themselves and the
rebels. They then entrenched themselves at a distance of 500 meters from these
buildings and fired mortar shells on the rebels, hence causing violation of Article 8(2)
(b)(iv).

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3. Is arrest and subsequent transfer of Mr. Bancha to ICC is legal?

After the Security Council passed a resolution on 15 th April 2009 referring the situation in
Bancha to the ICC and requested the ICC to commence investigation in the case, the ICC
declared its intention to start investigation in the case and after proper investigation for about
3 months, the prosecutor submitted its application to the pre-trial chamber for issuance of
arrest warrant against Mr. Bancha under Article 58 of the Rome Statute. Pursuant to the
application, the pre‐trail chamber issued an arrest warrant against Mr. Bancha and requested
Gogolistan to surrender Mr. Bancha to the ICC.  

Article 58(a) of the statute states that “At any time after the initiation of an investigation, the
Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a
person if, having examined the application and the evidence or other information submitted
by the Prosecutor, it is satisfied that:

(a) There are reasonable grounds to believe that the person has committed a crime
within the jurisdiction of the Court.”
The crimes which Mr. Bancha has committed and therefore is to be tried for, are
Genocide under Article 6(a) (b) (c) of the Rome Statute, War crimes under the Article
8 and Crimes against humanity under Article 7 of the Rome Statute which have been
discussed earlier in a detailed manner, hence are completely within the jurisdiction of
the court. The grounds are of enough gravity and the crimes committed were very
widespread and systematic that has affected the ethnic tribe of Zawals of more than
one country.
i) The report which ran in Bancha Herald- “The Bancha soldiers are using this
struggle against ZNP as an opportunity to vent their anger against the Zawals.
The Bancha soldiers have caused terrible bloodshed in all the Zawal villages
they have searched while hunting down members of ZNP. There have been a
lot of complaints from local women who claim that they were raped by
soldiers who confessed that their actions were motivated by a desire to change
the demographic composition of the region.”
ii) Human rights groups claim that it is actually much closer to ninety percent. A
lot of groups are calling it state sponsored genocide and putting the blame
squarely on Bancha.

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iii) Bancha gave his army a deadline of fifteen days to finish off the militants. He
expressly stated that the situation brooks no further delay and extreme steps
need to be taken immediately. He stepped up his offensive and made many
speeches filled with anger towards Zawal conspirators.

These facts along with others which have been discussed are relied upon for the
purposes of establishing both reasonable grounds to believe that Sotte Xijoutu Bancha
has committed crimes within the jurisdiction of the Court pursuant to Article 58(1) (a)
of the Rome Statute and the necessity of his arrest pursuant to Article 58(1) (b) of the
Rome Statute.
The arrest becomes necessary pursuant to Article 58(1) (b) for the purpose of
guaranteeing his or her appearance before the court at trial; to ensure that the person
does not obstruct or endanger the investigation or the investigation proceedings, or
where applicable, to prevent the person from continuing with the commission of the
crime which is within the jurisdiction of the court and which arises out of the same
circumstances.
In this case, Bancha, till the time he was not abducted by certain unknown individuals
from Zibotu, the capital of Banchu, was continuing with the commission of the crime
and after that he was in custody of Gogolistan; since the people who had abducted
him had left him in that territory. If Bancha would not have been arrested by the ICC,
the ongoing agitation and vociferous protests in Bancha would have made Bancha
being back in the State of Banchu. Considering the position of Banchu he would have
spread destruction all over the territory as a reaction to his abduction and then the
custody of Gogolistan.
Hence it was of utter importance to arrest Mr. Bancha and prevent the Zawals of
Banchu and Gogolistan from further destruction.

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PRAYER

Wherefore in the light of the Authorities cited, Issues presented and written pleadings, this
Hon’ble Trial chamber of the court may be pleased to adjudge and declare that:-

I. The ICC has the complete jurisdiction to try the case over Mr. Bancha and the case is
admissible before the court.
II. Arrest and subsequent transfer of Mr. Bancha is legal.
III. Mr. Bancha is guilty of the following crimes
a) Crime of Genocide under Article 6(a) of the Rome Statute.
b) Crime against Humanity under Article 7(1) (g)
c) War Crimes under Article 8(2) (b)(ix)

All of which is respectfully submitted

Sd/-

Counsels for the Claimant

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