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INTERNATIONAL CRIMINAL LAW MOOT COURT COMPETITION,


2014

IN THE INTERNATIONAL CRIMINAL COURT


AT
THE HAGUE, NETHERLANDS

THE PROSECUTOR
V.
COLONEL JINGO CRACKLE

ON SUBMISSION TO THE INTERNATIONAL CRIMINAL COURT

MEMORIAL for the DEFENCE

ALS 2 / M 26

Table of Contents

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TABLE OF CONTENTS
TABLE OF CONTENTS............................................................................................................3
LIST OF ABBREVIATIONS.....................................................................................................5
INDEX OF AUTHORITIES......................................................................................................6
STATEMENT OF JURISDICTION..........................................................................
STATEMENT OF FACTS.......................................................................................................10.
ISSUES.......................................................................................................................................12
SUMMARY OF ARGUEMENTS............................................................................................12
WRITTEN ARGUEMENTS.....................................................................................................14
Charges Against Colonel Jingo Crackle are Not Maintainable.................................................14
1.1

Col. Jingo Crackle is not liable for Crimes Against Humanity......................................14

Contextual Element...........................................................................................................14

(i)

A Civilian Population As The Object of Crime................................................................14

(ii)

Widespread or systematic attack directed against a civilian population........................14

The Policy Element.............................................................................................................15

No proof mandates commission by perpetrator himself:....................................................15

There was no infliction of conditions of life calculated to bring about the destruction of a
part of a population........................................................................................................................15

Absence of Knowledge and Intention: Element 4 not fulfilled

1.2

Colonel Jingo is not liable for War Crimes under Article 8............................................15

1.2.1

Intentionally directing an attack against civilian population...........................................15

1.2.2

Wilful killings under Article 8(2)(a)(i).................................................................................16

1.2.3

Rape under Article 8 (2)(b)(xxii)..........................................................................................17

1.2.4

Destruction of property under Article 8(2)(b)(xiii) .............................................................17

1.3

No Individual Criminal Responsibility as per Article 25(3)(a)...........................................18

1.4

No Command Responsibility lies with Colonel Jingo Crackle as per Article 28................18

2. ARREST OF COLONEL JINGO CRACKLE IS UNLAWFUL UNDER


INTERNATIONAL LAW AND THERE EXISTS APPROPRIATE REMEDY.................20
3

2.1

Unlawful arrest of Colonel Jingo Crackle in the territory of Meran.........................20

2.2

Right to Compensation for violation of Colonels basic rights....................................22

2.3

Immunity to Colonel Jingo as an official of Kimatan................................................. 22

2.3.1 Arguendo, he is held liable in the present case, the responsibility lies with Kimatan and
not Colonel Jingo..................................................................................................................... 24
3. VICTIM PARTICIPATION CANNOT BE ALLOWED AT THE CONFIRMATION
HEARING OF CHARGES .................................................................................................. 25
PRAYER..................................................................................................................................27

LIST OF ABBREVIATIONS

ACHPR- African Charter on Human and Peoples' Rights


ACHR

African Charter of Human Rights

AP

Additional Protocol

ECHR

European Court of Human Rights

EHRR

European Human Rights Reports

FSIA

Foreign Sovereign Immunities Act

G.A. Res General Assembly Resolutions


HLF

Hist Liberation Front

ICC

International Criminal Court

ICCPR

International Covenant on Civil and Political Rights

ICTY-

International Criminal Tribunal for the Former Yugoslavia

UDHR

Universal Declaration of Human Rights

UN

United Nations

Intl

International

EHRR-

Essex Human Rights Review

INDEX OF AUTHORITIES

ARTICLES
1. Terrorism, Territorial Sovereignty, and the Forcible Apprehension of International
Criminals Abroad By Jimmy Gurule
2. American Journal Of International Law (1993)
3. D. Robinson, in F. Latanzi and W.A. Schabas (eds.), Essays on the Rome Statute of the
International Criminal Court, Vol. 1 (1999)
4. Tams Hoffmann, Can foreign military intervention internationalize a non-international
armed conflict? A critical appraisal.
5. J. Pictet (ed.), Commentary: IV Geneva Convention relative to the Protection of Civilian
Persons in Time of War, ICRC, Geneva, 1958
6. K. Kittichaisaree, International Criminal Law (2001)
7. Command Responsibility in International Criminal Tribunals By Judge Bakone Justice
Moloto, BERKELEY J. INTL L. PUBLICIST Kai Ambos
8. Superior Responsibility, in THE ROME STATUTE: A COMMENTARY, Vol. I,
9. SUPERIOR ORDERS VS. COMMAND RESPONSIBILITY, by Anthony D'Amato, 80
American Journal of International Law 604
10. Command Responsibility for War Crimes, The Yale Law Journal, Vol. 82, No. 6 (May,
1973)
11. Manual For Courts Martial
12. International Law Immunities and International Criminal Court ,American Journal Of
International Law Vol 98
13. General Comment on Article 14 of the 1966 International Covenant on Civil and Political
Rights in 2007 by Human Rights Committee
14. E. Baumgartner Aspects of victim participation in the proceedings of the International
Criminal Court

CASES
1. A.W. Mukong v. Cameroon
2. Adolfo Drescher Caldas v. Uruguay, Hum. Rts. Comm., No. 43/1979, para. 13.2, U.N. Doc.
CCPR/C/19/D/43/1979 (1983)
3. Alvarez-Machain, v. United States, 331 F.3d 604, 641 (9th Cir. 2003).
4. elebii Appeal Judgment Kajelijeli Appeal Judgment, Brima et al.
5. Communication No. 458/1991
6. Cook v. United States (1933), 288 U. S. 102
7. Delalic, Trial Judgment ICTY,
6

8. Garcia v. Peru (Case 11.006)


9. Germany v. Margellos 129 ILR 526 2002
10. Kinsella v. United States ex. rel. Singleton, 361 U.S. 234, 246 (1960)
11. Levinge v. Director Of Cusodial Services, Ex Parte Bennett 9 N.S.W.L.R. 546 (1987)
12. Prosecutor v. Halilovi, Case No. IT-01-48-T, 38 (Nov. 16, 2005)
13. Prosecutor v. John Pierre Bemba Gombo, 2000
14. Prosecutor v. Kanarac, ICTY (Appeals Chamber), Judgment on 12th June, 2002.
15. Prosecutor v. Karadzic and Mladic, ILR , vol. 108, 1998 ICTY,
16. Prosecutor v. Mucic et al., Case No. IT-96-21 (Appeals Chamber), February 20, 2001,
17. Prosecutor v. Naletelic and Martinovic, ICTY (Trial Chamber), judgment on 31st March
2003.
18. Prosecutor v. Ntagerura, et al., ICTR-99-46-A (2006).
19. Prosecutor v. Raji, Case No. IT-95-12-R61
20. Prosecutor v. Thomas Lubanga Dyilo Case No. ICC- 01/04-01/06 (OA4) (Appeals
Chamber)
21. Prosecutor v. Tihomir Blaskic, IT-95-14-T ICTY, Judgment
22. Prosecutor v. Zejnil Delalic and others, IT96-21-T, ICTY, Judgment,
23. R. v. Horseferry Road Magistrates Court, Ex p. Bennett [1994] 1 A.C. 42
24. Rochin v. California, 342 U.S.
25. Selmouni v. France ECHR Reports V 29 EHRR 403
26. Situation in Democratic Republic of the Congo, Case No. ICC-01/04-556 (Appeals
Chamber)
27. Stefanelli v. San Marino, ECtHR (Judgment, 2000)
28. Prosecutor v. Tadi, No. IT-94-1-AR72
29. United States v. Toscanino 500 F.2d.267
30. Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936)
BOOKS & REPORTS
1. A Manual of International Humanitarian Laws; Edited by Sanajaoba
Foreword by Vincent Nicod Regency Publications
2. A Modern Introduction to International Law Michael Akehurst 6th edition;
Publishers George Allen Unwin (Publishers)Ltd 1987
3. Annual Digest & Reports of Public International Law
4. Blackstones International: Human Rights Documents- 1st Edition-P.R
Ghandi- Blackstones Press- 1999- Universal Law Publishing
5. Civil Liberties & Human Rights in England & Whales- David Feldman;
Oxford University Press New York- 1993
6. Encyclopaedia Of Human Rights Issues Since 1945- Winston E. Langley

7. Essential Human Rights Cases- 2nd Edition- Susan Nash and Mark Furse;
Jordon Publishing Ltd, Bristol 2002.
8. Geohard Werle- Principles of International Criminal Law- Published by
T.M.C Asser Press The Hague Netherlands 2005
9. International Human Rights Law Edited by Daniel Moeckli, Sangeeta Shah,
Sandesh Swakumaran
10. International law reports 102,104,109- Lauterpacht and Greenwood Grotius
Publications Cambridge University Press
11. Introduction to international law- 10th edition J G Starke published by
Butterworths and Co. Publishers 1989
12. Massimo Renizo, Crimes Against Humanity And The Limits Of
International Criminal Law, 2011
13. New Dimensions in International Law - Dr. Gurdip Singh; Pioneer
Publications, Delhi Published by Sweet and Maxwell published in 2003
14. Transboundary Abductions, Oxford Public International Law
15. Michele Marchesiello, Proceedings Before the Pre-Trial Chambers, in II
THE ROME STATUTE OF THE
16. United nations Handbook on the Peaceful settlement of Disputes between
States 70(1992)
STATUTES
1. Rome Statute
2. Commentary: IV Geneva Convention relative to the Protection of War, ICRC, Geneva, 1958
3. Hague Regulations
4. 1977 Additional Protocol I
5. 1977 Additional Protocol II
6. Protocol Additional to the Geneva Conventions of August 12, and relating to the victims of
non-international armed conflict
7. International Covenant on Civil and Political Rights
8.

G.A. Res. 217A (III), 3(1) U.N. GAOR Resolutions 71, U.N. Doc. A/810, (1948)

9. International Covenant on Civil and Political Rights(ICCPR)


10. Foreign Sovereign Immunities Act(FSIA)
11. Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons, including Diplomatic Agents, 197

STATEMENT OF FACTS
Separated from Nooba after a bloody partition was Kimatan with Colonel Jingo Crackle
as the army chief of the country. He was also the protector of Luke Skittle, of the HLF, a
group of Sutas Hists which aimed at liberating themselves from clutch of Noobian
administration. The Hists of Sutas had suffered a lot at the hands of Noobian authorities.
The Noobian authorities were so engrossed in their wars with Kimatan that they were had
become apathetic to the democratic, economic and social reforms of Sutas.
First in 1988 and then in 1998, an internal conflict arose between Hists in Sutas and the
Government of Nooba over local elections. Hists complained about systematic
discrimination and maltreatment by Noobian authorities. In 1999, a series of
demonstrations, strikes and attacks on the Government of Nooba began to take place.
Thousands of people died during fighting between HLF and the Government. According
to the official figures released by the Sutas Authorities there were 3,400 disappearances
and 47,000 people died in the conflict. There were continuous conflicts between the HLF
and Noobian Government. On 24 October 2009, the newly elected Prime Minister of
Nooba, in his victory speech asked the majority Dij people to assist in getting rid of the
Hist population from the country. This in turn led to the Kimatan leaders and religious
groups expressing strong resentment and condemnation over his speech, and its army
increasing its activities around the border under the command of Colonel Jingo Crackle.
On 25 February 2010, HLF targeted police stations, security installations manned by
Noobian officers, and Dij residential areas in anger. In retaliation, Nooba committed
umpteen numbers of atrocities on the Hist people of Sutas by increasing the military and
providing them with emergency powers allowing them to curtail civil liberties. Nooba has
alleged that the training and aiding of HLF by supplying weapons has taken place in
Kimatan. A coalition of international human rights organisations including Human Rights
Watch, the International Federation for Human Rights, and the Amnesty International
reported the use of heavy arms, explosive and chemical weapons in populated areas with
no discrimination between civilians and army. The rebels were indulgent in ethnic
cleansing by exterminating Sutas Dijs and many other humanitarian abuses.
Kimatan is a member of the United Nations. It is a party to the Geneva Conventions of
1949, the Convention on the Prevention and Punishment of the Crime of Genocide, 1948,
the International Convention on Civil and Political Rights, 1966 and other International
Humanitarian Law Conventions which prohibit the use of certain weapons during the

hostilities. Kimatan is a state party to the Rome Statute of International Criminal Court
since August 2000.
Following these actions, on 29 November 2013 the United Nations Security Council
convened an emergency meeting. Acting under Chapter VII of the United Nations
Charter and Article 13 (b) of Rome Statute, the Council vide Resolution 2019 referred
the situation since 24 October 2009 to the International Criminal Court (ICC) and urged
all states to co-operate with the Court, whether or not it was party to the Rome Statute.
On 15 January 2014, the Prosecutor submitted to the Pre-TrialChamber an application
for an arrest warrant for Colonel Jingo Crackle under Article 58 of the Statute. The
Prosecutors application was based on the following charges against Colonel Jingo
Crackle.
Since 25 February 2010 in Sutas, Colonel Jingo Crackle with HLF jointly committed, as
a joint criminal enterprise, within the meaning of Article 25(3) (a) of the Statute:
Crimes against Humanity under Article 7(2) of the International Criminal Court
Statute (the Statute);
war crimes by intentionally directing an attack against a civilian population as such or
against individual civilians not taking direct part in hostilities under Article 8(2)(b)(i) of
the Statute; wilful killings under Article 8(2)(a)(i); destruction of property under Article
8(2)(b)(xiii) and committing rape under Article 8 (2)(b)(xxii) of the Statute;
Responsibility of the Commander and other superiors of HLF and their actions in
Sutas under Article 28 of the Statute.
On 2 February 2014, Colonel Jingo Crackle visited Meran, a Hist majority country and
a non-state party to attend a multi-religious conference. The conference venue was on
the border with Astram, a state party to Roman Statute. Colonel Jingo Crackle remained
in Meran territory, when he was approached by private security staff for a security
check. Understanding it to take place in Astram, he refused, and was thereby removed,
his name discovered on the ICC warrant when he was identified, and taken into custody
at Astram on 3 February 2014. On 4 February 2014, the accused claimed unlawful
arrest and abduction to Astram in a surrender hearing which the National Court and
responsible Minister of Astram rejected in light of Article 59 (4) of the Rome Statute.
Prior to the confirmation hearing the Pre-Trial Chamber received 84 applications from
the residents of Sutas, nationals of Nooba claiming excessive atrocities from HLF. All
victims have been granted the right to participate in the confirmation hearing. The
victims are under protection ans referred to as nos. W01-W84.
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ISSUES
(i)
(ii)
(iii)

In the light of proposed charges, the jurisdiction of the Court.


The legality of the arrest of Colonel Jingo Crackle and the question of appropriate
remedy, if any; and
The scope of participation for victims W01-W84. Victims have announced the
intention to submit additional evidence in relation to HLF atrocities during
Confirmation Hearing.

SUMMARY OF ARGUMENTS
Colonel Jingo is not Liable For crimes under the Jurisdiction of The Court Colonel
Jingo Crackle did not direct a systematic attack against the nationals of Nooba in the
Sutas since it was only the HLF and the Noobian army fighting against each other. He
had no knowledge of the attacks against civilians. No intentional attacks were directed
against the people of Sutas and Colonel Jingo lacked the requisite mens rea and actus
rea for committing such crimes against humanity or war crimes. No wilful killings were
committed by Colonel Jingo did not kill any specific part of population directly or
commit any sexual violence, thereby exists no mens rea or actus reus on his part.
Colonel Jingo Crackle also did not destroy or seize any property in the Sutas. He cannot
be held liable either individually or as a commander since the requirement of effective
control and a superior subordinate relationship stands unfulfilled. The conflict in Nooba
was a form of non-international armed conflict where dissident group, HLF had been
fighting the Noobian government.
The Arrest Of Colonel Jingo Crackle was unlawful
Forceful removal of Colonel Jingo, while he was in the territory of Meran is an outright
breach of his fundamental rights under international law. The principle of male captus,
bene detentus cannot be held to be applicable and is rejected. He has to be compensated
for the breach of his basic rights. Also, military personnel also enjoy immunity from
foreign criminal jurisdiction like other Heads of States. Colonel Jingo being the
representative or official of a State of the county of Kimatan and his arrest cannot be
considered legal. Arguendo, he is held liable for international crimes, the responsibility
lies with the state of Kimatan and no imputability exists for the state for the acts of its
officials.

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Victims should not be Allowed to Participate In the Proceedings of the Court.


Efficiency of the proceedings must be safeguarded; undue delay brought about by victim
participation could threaten the right of the accused to a speedy trial. Colonel Jingo Crackle has the
right to be served a speedy trial and participation of victims in the Confirmation of hearing charges
can hinder that process. Thus undermining its efforts to provide accused with fair and expeditious
trials and allowing a third party to intervene at such an early stage could jeopardize both the
objectivity of trials. The requirement of sustaining direct harm from the acts of the perpetrator
cannot be established since the victims suffered atrocities at the hands of HLF and not Jingo
Crackle. Allowing victims to participate in the proceedings before the ICC would also result in
disruption of the equality of arms between the Prosecution and the Defence.

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WRITTEN ARGUEMENTS

1. IN THE LIGHT OF PROPOSED CHARGES THE JURSDICTION OF THE COURT


The Prosecutor, in pursuance of Article 13(b) of the Rome Statue by the Security Council acting
under Chapter VII of the Charter of the United Nations to initiate proceedings in the Honourable
International Criminal Court, which may subsequently exercise its jurisdiction in pursuance to the
crime committed under Article 5 of the Rome Statute. The Accused most humbly and respectfully
submits to the jurisdiction of the Honourable International Criminal Court (ICC) in the present
matter.
Charges Against Colonel Jingo Crackle are Not Maintainable
1.1 Col. Jingo Crackle is not liable for Crimes Against Humanity

Contextual Element Crimes against humanity under Article 7 of the ICC Statue
comprise only those crimes listed in the definition that are committed as a part of
widespread or systematic attack directed against any civilian population. Only if these
elements which can be taken together as a contextual element of the crime, are present one
can presume the existence of a crime against humanity. The contextual element for crimes
against humanity includes:

(i)

A Civilian Population As The Object of Crime The attacks that took place in the
Sutas of Nooba were not targeted towards a civilian population. The two main ethnic
groups of Dij and Hist were targeted due to the continuous acts of violence within
their country. That is to say that the attacks were against civilians and not civilian
population. Most importantly, such attacks were not directed by Colonel Jingo but by
the rebel group within their country nullifying his liability.

(ii)

Widespread or systematic attack directed against a civilian population- Element 2


not fulfilled The attack involves commission of acts of violence1 by the perpetrator. It
must be shown that individuals were targeted in such a way as to satisfy the court that
the attack was in fact directed against a civilian population rather than against a
limited and randomly selected number of individuals2. The HLF did not work under of
Colonel Jingo.

The Policy Element 3 Element 3 not fulfilled. Article 7(2)(a) of the Statue requires that
the attack on civilian population be carried out pursuant to or in furtherance of a State or
organizational policy to commit the act. There was no planned, directed or organized

Prosecutor v. Naletelic and Martinovic, ICTY (Trial Chamber), judgment on 31 st March 2003.
Prosecutr v. Kanarac, ICTY (Appeals Chamber), judgment on 12 th June, 2002.
3
Inspired by the Draft Code of 1996, commentary on Art 18, para 3.
2

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crime4 supervised by Colonel Jingo. He did not take a leading role or actively participate
in the activities of the HLF.

No proof mandates commission by perpetrator himself: Element 1 not fulfilled which


requires crime of extermination, requires that The perpetrator killed one or more persons,
including by inflicting conditions of life calculated to bring about the destruction of part of
a population.41 There is no evidence to establish any killings by Colonel Jingo thereby
rendering the first element of crime, unfulfilled.5

There was no infliction of conditions of life calculated to bring about the destruction of a
part of a population. The casualties that are apparent in the region of Sutas have been
inflicted by an armed dissident group of Nooba. Conditions detrimental to life have not
been protracted by Colonel Jingo Crackle.

Absence of Knowledge and Intention: Element 4 not fulfilled - Awareness that a


circumstance exists or a consequence will occur in the ordinary course of events is
knowledge6. The requirement that perpetrator must know of the acts of violence cannot
be claimed since Colonel Jingo was not aware as to the activities of HLF. In the present
case, Colonel Jingo had no intention, in relation to his conduct, to cause killing of
individuals. This is a declaratory reference to Article 30s7 general requirement for the
mental element which is not fulfilled in the present case.
1.2 Colonel Jingo is not liable for War Crimes Under Article 8
1)Such person or persons were protected under one or more of the Geneva Conventions
of 1949 ; 2)The perpetrator was aware of the factual circumstances that established that
protected status ;3) The conduct took place in the context of and was associated with an
international armed conflict; 4) The perpetrator was aware of the factual circumstances
that established the existence of an armed conflict.
Elements two, three and four are not satisfied in the present case.
The common elements for all crimes under Article 8(2)(a) are as follows :
1.2.1 Intentionally Directing an attack against civilian population
(i)

Element one of the Elements of Crimes that is the perpetrator directed an


attack is not fulfilled: Colonel Jingo Crackle did not direct any attack on
the people of Sutas region. The rebel group HLF itself directed attacks

D. Robinson, 93 American Journal Of International Law (1993), p.43 at p.51; D. Robinson, in F. Latanzi and W.A.
Schabas (eds.), Essays on the Rome Statute of the International Criminal Court, Vol. 1 (1999), p.139 at p.169
5
Elements of Crimes for Art. 7(1)(b), ICC Statute, UN doc. PCNICC/2000/1/Add.2 (2000)
6
Elements of Crimes for Art. 7(1)(b), ICC Statute
7
Rome Statute art.30(1)

14

against the ethnic group of Dije. There was a lacking mens rea regarding
the intentional attack8 by Colonel Jingo.
(ii)

Element two regarding the perpetrator intended that the object of attack
being a civilian population as such or individual civilians not taking
direct hostilities remains unfulfilled. The intention to harm any civilian
population cannot be fathomed from the evidence of the case. Colonel
Jingo did not wilfully attack9 any population since the population was
being attacked by HLF of the Sutas.

The armed conflict was of a non-international character The conflict that took place in the Sutas
was not of an international character. Some military intervention maybe practically seen as around
the borders of the two countries but overall control10 by another country cannot be established
significantly and continuously.11 There was no control of either Colonel Jingo Crackle or his
army in the area of Sutas establishing the fact that only a state conflict prevailed which was not of
an international character. Also, the concept of internationalization should only be applied if they
are firmly grounded in customary international law.12 A non-international armed conflict exists
when there is: protracted armed violence between governmental authorities and organized armed
groups or between such groups within a State.13 Hence, Colonel Jingo Crackle cannot be charged
for crimes taking place in an international armed conflict like war crimes.
1.2.2 Wilful killings under Article 8(2)(a)(i)
Element one of directly killing person or persons by the perpetrator is not fulfilled since Colonel
Jingo did not kill any person or persons. All killings took place in the Sutas region by the rebel
group called HLF and all casualties that took place were a result of series of explosions throughout
the Sutas14 and directed attacks conspired by the HLF.
Element four of Perpetrators awareness about the protected status not fulfilled. Colonel Jingo
Crackle would not have known that the persons being killed were protected under the Geneva
Conventions. The bombings and attacks took place against the military personnel which is evident
from the bombings of security installations manned by Noobian officials.
That, the perpetrator was aware of the factual circumstances that established the existence of an
armed conflict not fulfilled. Common Article 2 to the Geneva Conventions of 1949 about armed
8

ICTY, Judgment, The Prosecutor v. Tihomir Blaskic, IT-95-14-T


Article 85(3) of AP I of the Geneva Convention
10
Prosecutor v. Mucic et al., Case No. IT-96-21 (Appeals Chamber), February 20, 2001,
11
Prosecutor v. Raji, Case No. IT-95-12-R61
12
135Tams Hoffmann, Can foreign military intervention internationalize a non-international armed conflict? A
critical appraisal.
13
Tadi case, No. IT-94-1-AR72
14
Proposition 6
9

15

conflict that ..all cases of declared war or of any other armed conflict which may arise between
two or more of the High Contracting Parties. There was no instance of on Sgoing war at the time the
acts were committed by the HLF rebels in Sutas. Kimatan and Nooba were previously involved in
wars but it is evident that no armed conflict was taking place during the referral of the UN Security
Council. An armed conflict exists whenever there is a resort to armed forces between states or
protracted armed violence between governmental authorities and organized armed groups within a
state.15 The HLF rebels were nationals of Nooba making it an internal state conflict and not armed
conflict.
1.2.3 Rape16 under Article 8 (2)(b)(xxii) of the Statute will be attributed to the acts of
HLF and not Colonel Jingo Crackle. A national of Kimatan, Colonel Jingo Crackle
did not commit any kind of sexual violence under the ICC Statue. There existed no
mens rea or actus reus for the rapes to be committed by Colonel Jingo Crackle.
1.2.4 Destruction of property17 under Article 8(2)(b)(xiii)
(i)

Element one of the crime regarding the perpetrator destroyed or seized certain
property unfulfilled: There is no evidence of Colonel Jingo Crackles entry into
the Sutas region. The property that was destroyed by bombings and other
coordinated attacks were done solely by HLF and not by Colonel Jingo
Crackle. The was no removal of property from the possession of an entitled
person against the persons will.18

(ii)

Element four of the perpetrators awareness of the factual circumstances that


the established the status of property remains unfulfilled: No question arises as
to the fact that Colonel Jingo had no knowledge as to the kind of property
being targeted in the Sutas. The HLF claimed responsibility of the bombings in
residential areas and security posts and other major cities of their country.
Colonel had no hand in destroying their property.

(iii)

Element seven of the awareness of factual circumstances that established held


the existence of an armed conflict is not fulfilled: As has been explained it
could not be assumed that Colonel was aware of the kind of conflict at
prevailed at the time since the HLF and the Nooban Army were the
protagonists of conflicts in Sutas region and was thus an internal conflict of

15

J. Pictet (ed.), Commentary: IV Geneva Convention relative to the Protection of Civilian Persons in Time of War,
ICRC, Geneva, 1958, p. 29
16
No definition of rape can be found in international law. However, some general indications can be discerned from the
provisions of international treaties. In particular, attention must be drawn to the fact that there is prohibition of both
rape and any form of indecent assault on women in the 1949 Geneva Convention IV (Art. 27), 1977 Additional
Protocol I (Art. 76(1)) and 1977 Additional Protocol II (Art. 4(2))
17
As per Article 23(g) of the Hague Regulations.
18
K. Kittichaisaree, International Criminal Law (2001) p.148. ICRC Study on ICC Statue.

16

Nooba. Article 1(2) of Additional Protocol II also distinguishes armed


conflict from internal disturbances and tensions.19
1.3 No Individual Criminal Responsibiity as per Article 25(3)(a)
The elements 20 that must be fulfilled for such a charge includes for co-perpetration :
(i)

that his or her role is essential to the implementation of the common plan, and hence in
the commission of the crime, and

(ii)

(ii) the he or she can by reason of the essential nature of his or her task frustrate the
implementation of the common plan, and hence the commission of the crime, be
refusing to perform the task assigned to him or her

Colonel Jingo Crackle, an amry chief of Kimatan played no essential role in the acts of HLF in
Sutas region. The HLF themselves claimed the responsibility of the bombings 21 in the region
establishing that Colonel Jingos command or control could not implement or frustrate the aims of
the the rebels in the country of Nooba. Colonel Jingo did not have the required dolus directus22
since the kind of hostilities that took place in Sutas could not be foreseen who himself was an
official of a distinct country of Kimatan. The assumption that he would have entailed in such crimes
in the country of Nooba is too remote.
1.4 No Command Responsibility lies with Colonel Jingo as per Article 28
Chambers generally apply the effective control test, which aims to determine whether the
superior has the material ability to prevent and punish criminal conduct.23 If a superior has this
ability, then there is a legal basis for command responsibility. 24 The material ability seems to be
erased by the fact that Colonel Jingo Crackle was nowhere involved by the human rights violation
in the Sutas region. He was an official of the country of Kimatan and the HLF had been practicing
in the Sutas. A superior can be held criminally responsible only if some specific information was in
fact available to him which would provide notice of offences committed by his subordinates25. No
evidence can be found on which Colonel Jingo would have actual knowledge of the facts since all
acts were committed by the HLF in the Sutas with no allegiance to the Colonel. Only insofar the
initial use of force in armed conflicts 26 could have been attributed to Colonel Jingo he would have
19

Protocol Additional to the Geneva Conventions of August 12, and relating to the victims of non-international armed
conflicts.
20
Id. Supra 10, paras. 366-367.
21
Proposition 6
22
Prosecutor v. John Pierre Bemba Gombo, 2000
23
elebii Appeal Judgment, 256; Kajelijeli Appeal Judgment, 86; Brima et al. Judg-ment, 784. Prosecutor v.
Ntagerura, et al., ICTR-99-46-A (2006). Judges Pocar, Guney, Vaz, Meron, Schomburg sat on this panel with Judge
Pocar presiding
24
Command Responsibility in International Criminal Tribunals By Judge Bakone Justice Moloto, BERKELEY J. INTL
L. PUBLICIST [Vol. 3]
25
ICTY, Delalic, Trial Judgment para.393.
26
. ICTY, Prosecutor v. Karadzic and Mladic, ILR , vol. 108, 1998, p. 86.

17

been held under Command responsibility. But as is evident, the initial use of force was started by
the HLF even before the case was referred to ICC in the form of occupation of territory by the
rebels and a series of coordinated attacks against several major Noobian cities.
Under Article 28 , when seen against the principle that criminal responsibility for omissions is
incurred only where there exists a legal obligation to act27. There existed no legal obligation for
Colonel Jingo Crackle to be a part of the internal matter of the neighbouring country of Nooba.
Thus, his alleged negligence or omission does not arise. Also, in essence, command responsibility
imposes criminal responsibility for a superiors failure to act when under a duty to do so. 28 Colonel
Jingo Crackle was under no obligation to act since he there is lack of evidence to show he was
behind the acts and ofcourse, did not have effective control of the HLF.
Another element which remains unfulfilled is whether a nexus of causation between the superiors
failure to prevent crimes and the commission of those crimes is required since the ICC Statue stated
subordinates crimes occur as a result of the superiors failure to exercise control properly.29
Crimes in the territory of Sutas occurred at the behest of HLF and not as a result of Colonel Jingo
Crackles non-performance. He has his own country to look after and protect for which he had
increased the army around the border. The element of capability of controlling subordinates must be
proven independently.30 Colonel Jingos control over HLF cannot be examined since HLF worked
independently for the crimes they committed in the Sutas whose leadership was under Luke Skittle
and not Colonel Jingo Crackle.
That, Colonel ,the alleged accomplice must have been at the scene of the crime, must have
approved of the crime's perpetration, and must have, through this approval, provided
"encouragement" for the perpetration31 are the chapeau elements which have not been fulfilled and
hence, Colonel Jingo Crackle cannot be held directly responsible for the crimes. He, being a
military colonel was working in his official capacity. The HLF rebels worked in the Sutas region as
a separate entity.
The HLF rebels claimed responsibility of the bombing that took place throughout the region of
Sutas.

27

Ibid. para 405


Prosecutor v. Halilovi, Case No. IT-01-48-T, Judgment, 38 (Nov. 16, 2005) (Halilovi Judgment) 38.
29
Kai Ambos, Superior Responsibility, in THE ROME STATUTE: A COMMENTARY, Vol. I, 848, at 860
30
SUPERIOR ORDERS VS. COMMAND RESPONSIBILITY, by Anthony D'Amato, 80 American Journal of
International Law 604 (1986).
28

31

Command Responsibility for War Crimes, The Yale Law Journal, Vol. 82, No. 6 (May, 1973), pp. 1274-1304 See
also : Manual For Courts Martial, para. 156, at 28-4.

18

2 ARREST OF COLONEL JINGO CRACKLE IS UNLAWFUL UNDER


INTERNATIONAL LAW AND THERE EXISTS APPROPRIATE REMEDY
2.1 Unlawful arrest of Colonel Jingo Crackle in the territory of Meran
An arrest without authority and jurisdiction is by its nature arbitrary32. No State shall prosecute or
punish any person who has been brought within its territory or a place subject to its authority by
recourse to measures in violation of international law or international convention. 33 Forcible
removal when Colonel Jingo was in the territory of Meran is sufficient to show that such breach
was committed by the security forces of Astram. Since one significant dimension of human right is
freedom from arbitrary arrest and detention.34 Article 9 of the Universal Declaration of Human
Rights35 forbids the arbitrary arrest of any individual. That, Colonel Jingo Crackles trial in Astram
was a fair one under the ICC Statute, it must be noted that the courts should stop the trial of any
defendant whose presence within the jurisdiction had been improperly obtained.36 The defendant
had been forcibly removed from the territory of Meran and then taken to Astram, for a security
check by private staff37 wherein his name was discovered to be in the ICC warrant. In Levinge v.
Director of Custodial Services it had been held that where an individual had been unlawfully
removed from one jurisdiction to another, the Court may effuse to exersice jurisdiction over the
individual.38
Elements of inappropriateness, injustice, lack of predictability and due process of law 39 were found
missing by this forceful arrest of Colonel Jingo. There was no exigency to lock up and arrest
Colonel Jingo Crackle who was a foreigner on the lands of both the Meran and Astram.40
The Human Rights Committee found in Adolf41 a violation of Article 9(2) of the ICCPR when the
Navy officials informed Drescher Caldas that they were detaining him pursuant to prompt security
32

The Argument Against International Abduction of Criminal Defendants: Amicus Curiae Brief Filed by the Lawyers
Committee for Human Rights in United States v. Humberto Alvarez-Machain, Ruth Wedgwood, American University
of International Law Review, Vol 6, Issue 4, Article 3.
33
The Harvard Draft Covention, see also International Crial Law and Human Rights by Claire de than an Edwin Shorts.
34
United Nations, Study of the Right of Everyone to be Free from Arbitrary Arrest, Detention and Exile, 34 U.N.
ESCOR Supp. (No.8), U.N. Doc. ElCN.4I8261Rev. 1 (1964); , Article 9(1) of the International Covenant on Civil and
Political Rights (Covenant on Civil and Political Rights);; See also Garcia v. Peru (Case 11.006) ; The UDHR contains
the first universal statement on the right to freedom of movement. Article 13 UDHR states that: [e]veryone has the
right to freedom of movement and residence within the borders of each state and [e]veryone has the right to leave any
country, including his own, and to return to his country. ; Article 12 ICCPR, Article 2 Protocol 4 ECHR, Article 22
ACHR and Article 12 ACHPR state that everyone lawfully within the territory of a state has the right to liberty of
movement
35
. G.A. Res. 217A (III), 3(1) U.N. GAOR Resolutions 71, U.N. Doc. A/810, (1948).
36
R. v. Horseferry Road Magistrates Court, Ex p. Bennett [1994] 1 A.C. 42.
37
Proposition 14
38
Levinge v. Director Of Cusodial Services, Ex Parte Bennett 9 N.S.W.L.R. 546 (1987)
39
Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July 1994), in UN doc. GAOR,
A/49/40 (vol. II), p. 181,
40
As noted by Baroness Hale of Richmond: The conclusion has to be that it is not necessary to lock up the nationals.
Other ways must have been found to contain the threat which they present. And if it is not necessary to lock up the
nationals it cannot be necessary to lock up the foreigners. It is not strictly required by the exigencies of the situation.

19

measures without giving a specific explanation of the charges against him. The unilateral, nonconsensual extraterritorial arrest and detention42 of Colonel Jingo Crackle is in violation of
international laws pertaining to human liberty and protection from arbitrary arrests.
There exists no "green light" or "license" to kidnap foreign fugitives anywhere in the world

43

and

also an individual cannot be extradited absent an extradition treaty authorizing such action in the
circumstances presented.44 No evidence of an extradition treaty can be made out from the facts of
the present case rendering the arrest unlawful. The ICTY has also recognized the abuse of process
doctrine, recognizing that a violation of the defendants rights may be so serious in nature that the
exercise of jurisdiction should be set aside.45
There existed the abduction of the accused without the knowledge or authorization of the state46of
Meran. The ICC has recognized that jurisdiction may be inappropriate where the defendant has
come before the court through the use of torture or is mistreated.47 The US Supreme Court
decision in the Alvarez-Machain case, indicates that the principle male captus, bene detentus is
rejected at any rate if the state of the forum got hold of the prosecuted person by committing serious
human rights violations.48

The act of the staff in Astram deliberately, unnecessarily, and

unreasonably invaded a person's constitutional rights.49 Illegal foreign abductions like those of
Colonel Jingo Crackles are classified as violations of international human rights law.50 Everyone
has the right to liberty and security of person. No one shall be arbitrarily deprived of his liberty
except on such grounds and in accordance with such procedures as are established by law. 51 By
forcibly arresting Colonel Jingo Crackle from the territory of Meran his right to liberty was
infringed.

41

Adolfo Drescher Caldas v. Uruguay, Hum. Rts. Comm., No. 43/1979, para. 13.2, U.N. Doc. CCPR/C/19/D/43/1979
(1983)
42
Alvarez-Machain, v. United States, 331 F.3d 604, 641 (9th Cir. 2003).
43
Terrorism, Territorial Sovereignty, and the Forcible Apprehension of International Criminals Abroad By Jimmy
Gurule
44
Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936)
45
Prosecutor v. Dragan Nikolic, Case No. IT-94-2-AR73 (Appeals Chamber), Decision on Interlocutory Appeal
Concerning Legality of Arrest, June 5, 2003).
46
"[K]idnapping appears as an attractive, expedient alternative means" of bringing fugitives to justice, particularly
terrorists. Note, International Kidnapping
47
The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC- 01/04-01/06 (OA4) (Appeals Chamber)
48
Transboundary Abductions, Oxford Public International Law, (available
at:pil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690e83?rskey=9dCkSj&result=1&q=Abduction,%20Transboundary&prd=OPIL)
49

United States v. Toscanino 500 F.2d.267, Note on Drug Diplomacy, at 275. (referring to a 1989 legal opinion issued
by Assistant Attorney General William Barr allowing the FBI to kidnap alleged criminals outside the United States
without that country's authorization,
which reversed a 1980 legal opinion of the Carter Administration
50
supra 31
51
Article 9 of the ICCPR, as well as in other treaties (eg Article 5, ECHR):

20

The illegal arrest of Colonel Jingo Crackle is "shocking to the conscience," offensive to a "sense of
justice," or counter to the "decencies of civilized conduct."52 He entered a state lawfully for a multireligious conference, whose status is regularised, must be considered lawfully within the territory.53
Colonel Jingos original arrest or seizure is illegal it is logical to conclude that no competence is
acquired thereby54 by the state of Astram to conduct his trial. Furthermore, the Rome Statute
stipulates that the ICC may not proceed with a request for surrender when it would require the
violation of obligations with respect to official immunity of a person of a third state, unless the ICC
can first obtain the cooperation of that third state for a waiver of the immunity.55
2.2 Right to Compensation for violation of Colonels basic rights.
Under Article 85, a person who has suffered from unlawful arrest and detention has a right to
compensation. It states anyone who has been the victim of unlawful arrest or detention shall have
an enforceable right to compensation. Colonel Jingo, a national of Kimatan which is in turn is a
State party to various international conventions like The International Convention on Civil and
Political Rights, 1966 provides him with the remedies entailed in such a convention. That being
said, anyone who has been the victim of unlawful arrest or detention shall have an enforceable right
to compensation.56 In the alternative, if the Court finds Colonel Jingo guilty, it must reduce his
sentence for the violation of his rights.57
2.3 Immunity to Colonel Jingo as an official of Kimatan
That Colonel Jingo Crackle was not present in the territory of the Sutas and thus cannot be held
responsible for the activities therein.58 He, being in the official hierarchy of the Government of
Kimatan state immunity continued to apply without exception with regard to alleged violations of
human rights59 Military personnel also enjoy immunity from foreign criminal jurisdiction like other

52

Rochin v. California, 342 U.S. at 169, 172-73. The Court subsequently reaffirmed the "fundamental
fairness" standard. Kinsella v. United States ex. rel. Singleton, 361 U.S. 234, 246 (1960). Kinsella held that the courtmartial conviction of a defendant wife of a soldier was unconstitutional.
53
(General Comment 27). Once a person is lawfully within a state, any restrictions on her/his right to freedom of
movement and any treatment different from that accorded to nationals, have to be justified on one or more of the
grounds prescribed in Article 12 ICCPR.
54

Reported as Cook v. United States (1933), 288 U. S. 102


Rome Statue, art. 98.1. See also African Union, On the Decision of the Pre-trial Chamber of the ICC Informing the
UN Security Council and the Assembly of the State Parties to the Rome Statute about the Presence of President Omar
Hassan Al-Bashir of the Sudan in the Territories of the Republic Chad and the Republic of Kenya, Press Release No.
119/2010 (August 29, 2010).
56
Article 9(5) of IICPR
57
Prosecutor v.. Jean Boco Brartagwiza, Cse NO. ICTR-99-52-T. Judgment and Sentence 93 Dec. 2003)
58
According to the territorial clause, in accordance with the section 1605(a)(5) of the FSIA, Article 12 of the UN
Convention asserts that immunity cannot be claimed:[I]f the act or omission occurred in whole or in part in the
territory of that other state and if the author of that act or omission was present in that territory at the time of the act or
omission.
59
Anotato Eidiko Dikastirio [A.E.D.] [Special Supreme Court] 6/2002 (Greece), translated in Germany v. Margellos,
129 I.L.R. 526 (2002)
55

21

Heads of States.60 Colonel Jingo being al representative or official of a State61 of the county of
Kimatan and his arrest cannot be considered legal. Also, Meran being a non-state party to the ICC62,
the international courts have jurisdiction only over disputes involving states that are parties to
treaties providing for their jurisdiction.63
Certain high state officials are immune from prosecution before the domestic courts of other states64
Colonel being a high ranking official of the state of Kimatan remains immune. Individual official is
not to be held legally responsible for acts that, in effect, are those of the state 65 All states are equal
in international law, they are equal members of the international community, and consequently no
state can claim jurisdiction over another state. This is expressed in the rule, par in parem non habet
imperium, which means that that an equal has no authority over an equal, that is one sovereign state
is not subject to the jurisdiction of another state

66

that is to say the equality of both Astram and

Meran in international law did not allow Astram security staff to forcebly arrest Colonel Jingo
Crackle who was very much present in the territory of Meran67.
Colonel Jingos arbitrary arrest hindered to ensure the effective performance of the tasks the state
officials sent to perform on behalf of their state

68

in the multi religious conference taking place in

Astram.
2.3.1 Arguendo, he is held liable in the present case, the responsibility lies with Kimatan and not
Colonel Jingo. In factual terms states act through individuals,69 in legal terms state responsibility is
born not out of an act of an individual but out of an act of the state .Acts committed by the state's

60

ILCs recently adopted Draft Article 2 states that: The present draft articles are without prejudice to the immunity
from criminal jurisdiction enjoyed under special rules of international law, in particular by persons connected with
diplomatic missions, consular posts, special missions, international organizations and military forces of a State.
61
Article 2 of Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents, 1973
62
Proposition 14
63
See UNITED NATIONS, HANDBOOK ON THE PEACEFUL SETTLEMENT OF DISPUTES BETWEEN
STATES 70 (1992) (Settlement of international disputes by international courts is subject to the recognition
by the states concerned of the jurisdiction of the courts over such disputes.).
64
Arrest Warrant Case, 9 128 ILR 1
65
In Prosecutor v. Blaskic, No. IT-95-14-AR 108 bis (Oct. 29,1997), 110 ILR 609,707, para. 38, the appeals chamber of
the International Criminal Tribunal for the Former Yugoslavia (ICTY) stated that [state] officials are mere instruments
of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or
penalties for conduct that is not private but undertaken on behalf of the State. In other words, State officials cannot
suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf
they act: they enjoy so-called "functional immu- nity". This is a well-established rule of customary international law
going back to the eighteenth and nineteenth centuries, restated many times since). See also International Law
Immunities and International Criminal Court ,American Journal Of International Law Vol 98
66
Article 2, paragraph 1, of the UN Charter
67
Proposition 14
68
This is reflected in the fact that the state can waive the immunity if the state wishes to do so ; 3 Article 32 Vienna
Convention on Diplomatic Relations 1961; Article 45 Vienna Convention on Consular Relations 1963; Article 41 New
York Convention on Special Missions 1968
69
The Permanent Court of International Justice stated: 'States can act only by and through their agents and
representatives', Case of Certain questions relating to settlers of German origin in the territory ceded by Germany to
Poland, Advisory opinion, PCIJ Series B, No 6, 22.

22

agent or organs' can be attributed to the state, irrespective of whether the actions are performed by
superior or subordinate officials.70 in Selmouni v France, it has been held by the French Courts that,
[w]hatever the outcome of the domestic proceedings, the police officers' conviction or acquit-tal
does not absolve the respondent State from its responsibility under the Convention.71 J. Blackett
remarks pertinently in this context that, the law can recognise the military dilemma and grant the
subordinate a defence in criminal proceedings in all cases where he acted in obedience to superior
orders

72

The compulsory elements of subordination, knowledge and failure to act 73 that are

necessary for the doctrine of state responsibility to apply to the state of Kimatan since the Colonel is
subordinate to the State being its official. By virtue of this governmental ability the country is
bound to be aware of the acts of its official and subsequent failure in taking measures to control
such actions make Kimatan liable as a superior and not Colonel Jingo. The conduct of an organ of
the State shall be considered as an act of that State.74
Imputability to a State of conduct (act or omission) that is contrary to international law
States act on the international level through individuals. For a State to be internationally liable, the
act of the individual must be one that can be imputed to the State. It must therefore be established
that the act is committed by:

An individual that has the status of a State official under the national system of a particular
state and acting in his official capacity (not in his private capacity as an individual) in order
for his act to be imputed to the State. A wrongful act by a State official is imputed to the
State even if the official acted outside of his competence or contrary to his instructions, as
long as he acted using the powers pertaining to his public function.

3. VICTIM PARTICIPATION CANNOT BE ALLOWED AT THE CONFIRMATION


HEARING OF CHARGES
Victims have not been allowed to present their own evidence at the confirmation hearing. That
victims could not present their own evidence in large part because allowing them to do so would
distort the purpose of the confirmation hearing which is to test the Prosecutions evidence and
determine whether it is sufficient to send the case to trial.75 The victims of the hostilities that took
70

Private Security Contractors and State Responsibility : are states exempt from responsibility for violations of
humanitarian law perpetrated by private security contractors? , Shannon Bosch, Source : The Comparative and
International Law Journal of Southern Africa, Vol. 41, No. 3(November 2008), pp. 353-382Published
71
Selmouni v France, ECHR Reports V (1999) 29 EHRR 403, para 87
72
J. Blackett, "Superior Orders: The Military Dilemma" Feb. 1994, Royal United Services Institution Journal, p.12 at
p.17., See also From Nuremberg to Rome Statue ; Restoring the Defence of Superior Orders
Hilaire McCoubrey Source: The International and Comparative Law Quarterly, Vol. 50, No. 2 (Apr., 2001), pp. 386394.
73
COMMENTARYON THEADDITIONAL PROTOCOLS OF8JUNE 1977 TO THE GENEVA CONVENTIONS OF
12AUGUST 1949, para. 3543
74
Article 4, paragraph 1, of the 2001 ILC Articles
75
Pre-Trial Chamber II specified in the Katanga and Ngudjolo case See also VICTIMS PARTICIPATION AT THE
ICC: PURPOSE, EARLY DEVELOPMENTS AND LESSONS (http://www.amicc.org/docs/Victims_Participation.pdf)

23

place in the Sutas region would not generally speaking have the capacity to present evidence. 76 For
victims to participate, the Court is to decide if victims sustained direct harm77 from the alleged
perpetrator. There is no evidence to prove that Colonel Jingo Crackle was behind any violent acts
happening in the Sutas. The HLF claimed responsibility of the bombings that took place in the
region. Ethnic cleansing by extermination, rapes of hundreds of Dije women78 and other abuses
were committed by the HLF rebels of Sutas and thus victims fail to establish a direct link between
the harm suffered and the defendant. First, the Rome Statute and RPE give victims reduced
participatory rights compared to the Prosecution and Defence. For example, victims cannot appeal
trial judgments or sentences, which the Prosecution and Defence are entitled to do.
In practice, it is inevitable that victims participation will make proceedings longer than if the
victims could not participate. However, Chambers have restricted victims participation so that it
does not significantly delay the ICCs cases. Efficiency of the proceedings must be safeguarded is
that undue delay brought about by victim participation could threaten the right of the accused to a
speedy trial.79 Colonel Jingo Crackle has the right to be served a speedy trial and participation of
victims in the Confirmation of hearing charges can hinder that process. Such participation could
exacerbate the length of the proceedings , thus undermining its efforts to provide accused with fair
and expeditious trials

80

and allowing a third party to intervene at such an early stage could

jeopardize both the objectivity and integrity of the OTPs work and the Courts proceedings more
broadly.81
Allowing victims to participate in the proceedings before the ICC would also result in disruption of
the equality of arms between the Prosecution and the Defence and hence might become second
prosecutors82 There cannot be a really fair trial, if this fairness has not been practised and
guaranteed appropriately in the phases prior to trial. In brief: there will be no fair trial without a fair
pre-trial.83 Considering the fact that the charges are still to be confirmed against Colonel Jingo
76

Situation in Democratic Republic of Congo, In exception of a/001/06 and a/0003/06 which were granted on a sole
question to the Prosecutors witness.
77
Participation of Victims In International Criminal Court, The {New} International Law.
78
Proposition 8, 6
79
Jrme de Hemptinne, The Creation of Investigating Chambers at the International Criminal Court: An Option
Worth Pursuing?, 5 J.Intl Crim. Just. 402, 412 (May 2007) (The number of victims in cases of war crimes and crimes
against humanity often runs into the thousands or even tens of thousands. Furthermore, the nature of the damage they
have suffered adds to the emotive power of their intervention in proceedings. If not controlled, their participation could
therefore interfere with the smooth conduct of trials and the rights of the accused.).
80
ICTY Judges Report
81
Situation in the Democratic Republic of Congo, Prosecutions Reply on the Applications for
Participation 01/04-1/dp to 01/04-6/dp, ICC-01/04 (OTP, 15 August 2005)
82
Doak, Victims Rights in Criminal Trials, As one commentator explains, where a criminal justice system relies on a
delicate balance of power achieved through the clear delineation of roles of the prosecution and defence, the system
could be perceived as appearing out of balance if another party were involved in the case that could actively work
against the interests of the defence.
83
Michele Marchesiello, Proceedings Before the Pre-Trial Chambers, in II THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT: A COMMENTARY, 1231-32 (Cassese, et al. eds., 2002)

24

Crackle, the participation of victims at the Confirmation of Hearing Charges renders the
proceedings to be inclined towards the prosecution .
Article 61 of the Statue that compiles the rules regarding confirmation of hearing charges does not
incorporate the rights of victim participation.84 Such victim participation in any stage of the
proceeding hinders the administration of justice.85 Fairness of proceedings entails the absence of
any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for
whatever motive.

86

Allowing victims to be a part of the proceedings will lead to an unfair

mechanism being pursued making it difficult for the defendant to come out clean.
The victim participation regime has also been proved to be costly and ineffective as held by many
judges presiding over the ICC.87
Victims who had already been granted the right to participate in specific proceedings at the PreTrial level had no automatic right to participate in an interlocutory appeal arising out of those
proceedings, but rather had to re-establish that their personal interests were affected by the appellate
proceedings, as well.88 It must also be noted that the victims who have granted the right to
participate in the proceedings are those who have claimed excessive atrocities by the HLF rebels.
Nowhere has Colonel Jingo Crackle been held responsible for such crimes and thus the scope for
victim participation is reduced further.
Even if this Court grants victim status to the residents of Sutas, nationals of Nooba , referred as
W01-W84 , this Court should limit their participation to points on the agenda that the victims can
specifically establish affect their interests. This Court should limit the participation of the victims to
submit and examine evidence solely to those issues that specially affect the victims. While the ICC
has recognized that victims do have a right to present and examine evidence, that right is limited.
Their role in presenting evidence, does not equate them to parties to the proceedings before a
Chamber, so that they may only do so in limited situations.89 That the victims allege to have

84

E. Baumgartner Aspects of victim participation in the proceedings of the International Criminal Court P.428
Stefanelli v. San Marino, ECtHR (Judgment, 2000), paras. 16ff
86
General Comment on Article 14 of the 1966 International Covenant on Civil and Political Rights in 2007 by Human
Rights Committe
87
notably Judge Christine Van den Wyngaert has publicly critiqued the system of victim participation, noting that it is
costly, ineffective, the main rationales for participation have not been borne out by the practice and that ..it may well
be that victims participation in criminal trials of the kind that are held before the ICC, i.e., trials with massive amounts
of victims, cannot be more than symbolic, [], may be a new cause of secondary victimization.
88
Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Thomas Lubanga
Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber No. 01/0401/06 (Appeals Chamber, 13 February 2007)
89
Situation in Democratic Republic of the Congo, Case No. ICC-01/04-556 (Appeals Chamber), Judgment on Victim
Participation in the Investigation Stage of the Proceedings in the Appeal of the OPCD against the Decision of Pre-Trial
Chamber I of 7 December 2007 and in the Appeals of the OPCD and the Prosecutor Against the Decision of Pre-Trial
Chamber I of 24 December 2007, (Dec. 19, 2008)
85

25

suffered atrocities as committed by the HLF, Colonel Jingo Crackle cannot be held responsible for
such atrocities; also because the charges against him have been explained false.

PRAYER
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced,
the prosecutor respectfully requests the court to declare:
1. That Colonel Jingo Crackle should not liable for the charges under the jurisdiction of the
court.
2. That his arrest be considered unlawful and he be compensated appropriately
3. That the victims W01-W84 should not be allowed to participate in the proceedings against
Colonel Jingo Crackle.
Respectfully submitted by the Agent for the Defendant, Colonel Jingo Crackle.

Defence Counsel Team ALS/M26

26

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