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Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016

IT_05_V

THE TRIAL CHAMBER

IN THE CASE OF
PROSECUTOR V. SUSAN WANCHUK

CHARGES AGAINST THE ACCUSED:


1. GENOCIDE,

FOR THE ATTACK AGAINST

CROSSFORDIANS

UNDER

ARTICLE 6

AND

ARTICLE 25(3)(e) OF THE ROME STATUTE;


2. CRIMES AGAINST HUMANITY FOR INFLICTING SEVERE PHYSICAL OR MENTAL PAIN OR
SUFFERING UPON THE CROSSFORDIAN POPULATION UNDER ARTICLE 7(1)(f) AND ARTICLE

28(b) OF THE STATUTE;


3. THE WAR CRIME OF TORTURE OF INHUMAN TREATMENT, UNDER ARTICLE 8(2)(a)(ii)
FOR INFLICTING SEVERE PAIN UPON THE PRISONERS AND THE PERSONS PROTECTED UNDER
THE GENEVA CONVENTION OF 1949 AND ARTICLE 25(3)(b);

4. THE WAR CRIME OF INTENTIONALLY USING STARVATION AS A METHOD OF WARFARE


AGAINST THE CROSSFORDIANS BY DEPRIVING THEM OF OBJECTS INDISPENSABLE TO THEIR
SURVIVAL, INCLUDING WILLFULLY IMPENDING RELIEF SUPPLIES AS PROVIDED FOR UNDER
THE GENEVA CONVENTIONS UNDER ARTICLE 8(2)(b)(xxv) AND ARTICLE 25(3)(d) OF THE

ROME STATUTE.

WORD COUNT: 6486

WRITTEN SUBMISSIONS ON BEHALF OF THE VICTIMS

Written Submissions on behalf of the Victims

Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
TABLE OF CONTENTS

INDEX OF AUTHORITIES .............................................................................................................iii


STATEMENT OF FACTS ............................................................................................................... vi
ISSUES PRESENTED ..................................................................................................................... x
SUMMARY OF ARGUMENTS ....................................................................................................... xi
ARGUMENTS IN DETAIL .............................................................................................................. 1

ISSUE I : WHETHER THE ICC CAN EXERCISE ITS JURISDICTION OVER THE ACCUSED IN ORDER
TO SERVE THE PURPOSE FOR WHICH THE COURT WAS FOUNDED?

.......................................... 1

[1.1]. The Victim falls within the purview of Rule 85 of Rule of Procedure and Evidence ..... 1
[1.2]. The Victim falls within the purview of Article 68(3) of the Rome Statute .................... 4
[1.3]. Common Legal Representation of the victims is envisioned by the Court ...................... 6

ISSUE II : WHETHER

THE ICC HAS JURISDICTION TO TRY THE DEFENDANTS FOR THE

GENOCIDE, WAR CRIMES AND CRIME AGAINST HUMANITY SHE HAD COMMITTED?................ 6

[2.1]. The ICC has the appropriate jurisdiction for multiple crimes which reflect the harm
suffered by the victims .............................................................................................................. 7
[2.2]. The case is admissible before the court for its determination .......................................... 7

ISSUE III : WHETHER

THE

VICTIMS

CAN BE ALLOWED TO PRESENT THEIR VIEWS AND

CONCERNS BEFORE THE COURT? .............................................................................................. 8

[3.1]. The Victims suffered harm relevant under Rule 85 of the RPE ...................................... 9
[3.2]. The Victims must be permitted to participate in the current proceedings as their Personal
Interests are affected ................................................................................................................. 9
[3.3]. The Victims have the right to tender evidence against the defendant pertaining to the
guilt of the defendant ............................................................................................................... 10

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ISSUE IV : WHETHER THE VICTIMS SUFFERED AN ARRAY OF HARM AND TRAUMA AS A DIRECT
RESULT OF THE DEFENDANTS CRIMES? ................................................................................. 12

[4.1]. Victims suffered harm as a direct result of the crime of Genocide ................................ 12
[4.2]. Victims were subjected to the War Crime of Torture ................................................... 13
[4.3]. Victims were subject to the War Crime of Inhuman Treatment .................................... 13
[4.4]. Victims were subjected to War Crime of intentionally using Starvation as a method of
warfare ..................................................................................................................................... 14
[4.5]. The victims suffered harm as a direct result of the Crime against Humanity of Torture
.................................................................................................................................................. 15

ISSUE V: WHETHER THE VICTIMS OF THESE CRIMES COMMITTED BY THE DEFENDANT CAN BE
PROPERLY REMEDIED? ............................................................................................................ 15

[5.1]. Redressal and Reparation for victims of gross violations of Human Rights is an
imperative demand of Justice and a pressing requirement under International Law .............. 16
[5.2]. The Astco survivors who suffered this great harm are considered victims under
applicable International Law ................................................................................................... 16
[5.3]. Victims of these international crimes are entitled to access the mechanisms of Justice and
to prompt Redressal ................................................................................................................ 17
[5.4]. The ICC must establish principles relating to reparations to, or in respect of victims,
including Restitution, Compensation and Rehabilitation ........................................................ 17
[5.5]. The Court may make an order directly against a convicted person ............................... 18
[5.6]. The Rome Statute created a Trust Fund for Victims in this situation ............................ 18

PRAYER..................................................................................................................................... 20

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Index of Authorities

Judicial Precedents

Case Name

Page No.

DRC situation Case No. ICC-01/04-423, Pre-Trial Chamber I, (Dec. 23,

2007)
Mehinovic v. Vuckovic 198 F. Supp 2d. 1346 (Idaho 1986)

13

Prosecutor v. Bahar Idriss Abu Garda Case No. ICC02/0502/09121,

10

Decision on the 34 Applications for Participation at the PreTrial Stage


of the Case, (Sep. 25, 2009)
Prosecutor v. Banda & Jerbo Case No. ICC-02/05-03/09-337, Decision

on common legal representation, (May 25, 2012)


Prosecutor v. Bemba Case No. ICC-01/05-01/08-320, Pre-Trial

Chamber III Fourth Decision on Victims Participation, (Dec. 12, 2008)


Prosecutor v. Thomas Lubanga Dyilo Case No. ICC-01/04-01/06-1119,

Decision on Victims Participation, (Jan. 18, 2008)


Prosecutor v Thomas Lubanga Dyilo Case No. ICC-01/04-01/06-1432,

8, 9, 11

Decision on Victims' Participation, (Jan. 18, 2008)


Prosecutor v. Zejnil Delali Case No. IT-96-21-A, (Feb. 20, 2001),

14

www.icty.org/x/cases/mucic/acjug/en/cel-aj010220.pdf
Sackie v. Ashcroft 270 F. Supp 2d. 596 (Miss. 1986)

13

Situation in Darfur Case No. ICC PT. Ch. I, (Dec. 3, 2007)

10

Situation in Kenya Case No. ICC-01/09, Authorisation to open an

Investigation, (Mar. 31, 2010)


Situation in the Democratic Republic of Congo Case No. ICC-01/04-103,

Prosecutions Application for Leave to Appeal Pre-Trial Chambers Is


Decision on the Applications for Participation in the Proceedings of
VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS, (23 January
2006)
Situation of the Democratic Republic of Congo Case No. ICC-01/04-101,
(Jan. 17, 2006)

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Case Name

Page No.

The Prosecutor v. Jean-Pierre Bemba Gombo Case No. ICC-01/05-01/08-

10

320, Decision on 97 applications for participation at the Pre-Trial


Stage of the case, (Jun. 10, 2008)
The Prosecutor v. Germain Katanga Case No. ICC-01/04-01/07-1778,

10

(Sep. 26, 2008)

Books and Journal Articles

1. Hector Olasolo & Alejandro Kiss, The Role of Victims in Criminal Proceedings before the
International Criminal Court, 81 Revue internationale de droit penal 127 (2010) ............ 8
2. Theo von Boven, Study concerning the Right to Restitution, Compensation and
Rehabilitation for Victims of gross violations of Human Rights and Fundamental Freedoms
11-15 (United State Institute of Peace Press, 1995) ......................................................... 16
3. Websters Third New International Dictionary 1815 (8th ed. Merriam Webster U.S. 2008)
............................................................................................................................................ 13
4. William A. Schabas, The International Criminal Court: A Commentary on the Rome
Statute 827 (Oxford University Press 2010) ....................................................................... 9

International Instruments

1. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, U.N.
Doc. A/RES/40/34/Annex (1985)
2. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,
General Assembly Resolution, 40/34, Annex, U.N. Doc. A/RES/40/34/Annex (Nov. 29,
1985)
3. Rome Statute, 2187 U.N.T.S. 90 (1998)
4. Rules of Procedure and Evidence, ICC-ASP/1/3 and Corr. 1 (2002)
5. UN Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims
of Gross Violations of International Humanitarian Law, UNGA Res. A/60/147 (2005)

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Miscellaneous

1. Esther Giller, What is Psychological Trauma? http://www.sidran.org/resources/forsurvivors-and-loved-ones/what-is-psychological-trauma .................................................. 12


2. Victims Rights Working Group, What are Victims Rights under International Law and
before the ICC? (2002), http://www.vrgw.org/victimsrights.html .................................... 15
3. Emotional and Psychological Trauma (Sep. 13, 2014), https://www.helpguide.org ........ 13
4. Carla Ferstman and Clementine Olivier, Ensuring the effective participation of victims
before

the

International

Criminal

Court

(May,

2005),

http://www.redress.org/downloads/publications/REDRESS%20%20Legal%20Representa
tion%20for%20Victims%2023%20May%202005.pdf ........................................................ 8

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STATEMENT OF FACTS

[I]. GEORAPHICAL CONDITIONS AND SITUATION OF COUNTRIES

The Bay of Gandar was a crescent-shaped bay which marked the southern-end of the continent
of Gandar. The western side formed the country of Crossford and the eastern side formed the
country of Hambridge. 20 nautical miles off the southern tip of the western extreme of the Bay
of Gandar was Western Slade, and 20 nautical miles off the southern tip of its eastern extreme
was Eastern Slade. Western Slade was prominently Crossfordian whereas Eastern Slade was
prominently Hambridgian in ethnicity. The ongoing movement of the tectonic plates led to the
emergence of a new island equidistant between Western and Eastern Slade, which international
cartographers called Central Slade. It was unpopulated and uninhabitable because the nature of
the tide surges. A geological survey released in March 2011 had revealed that the mountain
that was growing under the sea to form Central Slade was likely to be the source of a significant
supply of rare earth metals, of great value in the modern economy, because of which by May
2011 small naval fleets of both Western Slade and Eastern Slade were stationed around the
Central Slade for a claim.

[II]. EASTERN SLADE AND WESTERN SLADE DECLARED WAR ON EACH


OTHER

Western Slade and Eastern Slade declared war on each other. Crossford and Hambridge did
not formally declare war, and indeed urged a diplomatic solution; but they reflagged naval
ships from their own navies as belonging to Western Slade and Eastern Slade. Both navies
targeted ships in the Bay that were heading to the other island or to the mainland on the basis
that they might contain military equipment. The action taken was not to sink ships, but to board
them, by force if necessary, and commandeer them. On various occasions, crew were forced
into life rafts and abandoned; on other occasions, the crew were taken with the ship into port
and placed into prisoner of war camps. The crew of ships was placed into life-rafts; on the first
three occasions that it was done, first by the Western Slade navy and then twice by the Eastern
Slade navy, the life-rafts were unable to deal with the adverse weather conditions and most
passengers drowned.

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[III]. CRIMES COMMITTED BY CONRAD DRAHY AND CAPTAIN TREVOR

The in charge of the Western Slade Navy, Conrad Drahy, directed that the crew of every second
ship commandeered should be cast adrift in life rafts, the aim of the policy being to cause
merchant ships to avoid journeys to Eastern Slade or Hambridge. By the end of the conflict,
which lasted for some three years, 80 crews had been treated in this way; only one lifeboat
survived. The total loss of life was 1476 people. Further, some 1304 people were held in
prisoner of war camps in Western Slade, they were treated in accordance with humanitarian
standards. One natural gas carrier ship was shadowed by a Western Slade naval vessel, but not
boarded as an Eastern Slade naval vessel was reported to be in the area. Captain Trevor Trenk
in charge of a Special Forces Unit approached the tanker and placed onto its hull a sophisticated
bomb which resulted explosion and fire which caused 57 deaths and significant property
damage. It was estimated that it would take 5 years for sea life to become edible again.

[IV]. EASTERN SLADE TOOK POWS INTO THEIR PRIVATE RUN PRISONS
WHICH WAS RUN BY ASTCO OFFICIALS AND SUSAN WANCHUK

Eastern Slade took the crew to the shores and put them as prisoners of war. Its prisoner of war
camp was run by a private prison company Astco owned by Chief Minister of Hambridge,
Andre Bouillon, which had been contracted first by the government of Hambridge and then by
the government of Eastern Slade to operate all prison facilities. However, in practice the
operations of the Astco prison facilities were not only overseen by the Astco officials but also
by the Eastern Slade Minister of Defence, Susan Wanchuk, who had been Bouillons protg.
Bouillons view was based on a view that Crossfordians were a lesser race altogether whose
role in life was limited to providing manual labour.

[V]. ATROCITIES COMMITTED AGAINST THE PRISONERS OF WAR IN


EASTERN SLADE

285,000 captured people had been placed in Astco facilities, the vast majority being of
Crossfordian nationality or ethnicity. They were all subject to a regime of forced labour, the
Astco policy being that prison had to be cost-neutral, such that inmates had to provide labour
services that equated to the cost of their imprisonment. This cost included the capital costs of
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the facilities and an agreed profit margin for Astco. The net effect of this was that each prisoner
had to work for 62 hours a week on a range of employment activities. Wanchuk personally
reviewed all details of the disciplinary regime at the prison. For every hour not worked, a
prisoner lost one meal; and for every five hours lost, each prisoner was subject to corporal
punishment, involving one stroke of the cane or more depending on the situation. She also
introduced a new rule whereby prisoners were to impose corporal punishment on each other,
with Astco guards having the power to cane any prisoner who sought to use less than proper
force when caning another prisoner. Lethal force could be used against anyone who sought to
resist. By the end of the war, a total of 187000 prisoners had died; some 40,000 died as a result
of being shot by guards when they sought to resist disciplinary action, and the rest simply
succumbed to the consequences of the beatings, malnutrition and forced work.

[VI]. PEACE TREATY AND INITIATION OF INVESTIGATION AGAINST


PERPETRATORS

The peace treaty that brought an end to the war was called- the Treaty of Lamos. As a part of
the peace treaty, which Crossford and Hambridge also ratified, it was agreed that each side
should select two people whose involvement would be referred to the International Criminal
Court. At the end of its deliberations, the four people selected by the Standing Committee to
stand trial in the International Criminal Court were- Conrad Drahy, Trevor Trenk, Andre
Bouillon and Susan Wanchuk. The Pre-Trial Chamber of the International Criminal Court, on
26th February, 2013, accepted that there were proper grounds for trial against each defendant
on the charges as proposed and thereby authorized the ICC Prosecutor to begin investigation
into the situation. In advance of this determination, Drahy, Trenk and Bouillon went
underground and had not yet been located. But Wanchuk travelled to Hague in June 2015, and
surrendered herself for trial. In doing so, she expressly preserved her right to raise any
objections to the trial based on the process whereby she was selected for trial; in the alternative
her legal representatives also argued before the Pre-Trial Chamber that her Trial be expedited.
Through a ruling delivered on 05th August, 2015 the Pre-Trial Chamber decided that her Trial
must begin. However, the same Chamber also made an observation stating that absence of other
accused could be detrimental to the Prosecutors case.

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[VII]. CHARGES CONFIRMED AGAINST THE DEFENDANT

In a subsequent hearing conducted on 21st October, 2015 the final charges laid against
Wanchuk upon which the Trial shall initiate are:
a. Genocide, for the attack against Crossfordians under Article 6 and Article 25 (3) (e)
of the Rome Statute;
b. Crimes against humanity for inflicting severe physical or mental pain or suffering
upon the Crossfordian population under Article 7(1) (f) and Article 28(b) of the Statute;
c. The War Crime of torture or inhuman treatment, under Article 8(2)(a)(ii) for
inflicting physical pain upon the prisoners and the persons protected under the Geneva
Convention of 1949 and Article 25(3) (b) of the Statute;
d. The War Crime of intentionally using starvation as a method of warfare against the
Crossfordians by depriving them of objects indispensable to their survival, including
wilfully impeding relief supplies as provided for under the Geneva Conventions under
Article 8 2(b) (xxv) and Article 25(3) (d) of the Rome Statute.

[VIII]. VICTIMS REPRESENTATION IN RELATION TO KARL GRAHAM

Astco Survivors Movement (ASM) represented those who were imprisoned in the prison
facilities and survived and the families of those imprisoned who had died. The ASM was led
by Karl Graham. His ship was captured and he had spent some 20 months in the Astco prison.
He had suffered a range of indignities there, and his weight had dropped from 75 kg to under
50 kg by the time the war ended. He had operated as the de facto lawyer for those detained
there, and had regularly sought to raise complaints with staff and with Wanchuk about the
events at the prison. Karl Graham along with 50 other survivors seeks to be a victim seeking
reparations. However, for the purpose of the case, they have agreed to be represented by the
same Legal Representative. The Trial Chamber has indicated that it will hear arguments on
whether Karl Graham should be a victim party, as well as on any other matter the parties wish
to raise.

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ISSUES PRESENTED

[A].

Whether the Victims Application i.e. the application of Karl Graham can be admitted

before the Honble Court?

[B].

Whether the ICC has jurisdiction and the admissibility to try the defendants for the

crimes ranging from those of genocide, multiple war crimes and crime against humanity she
had committed?

[C].

Whether the 50 victims along with Karl Graham, the leader of the Astco Survivors

Movement can be allowed to present their views and concerns in lieu of their personal interests
before the Court?

[D].

Whether the victims suffered an array of harm and trauma as a direct result of the

defendants crimes ranging from those of genocide, multiple war crimes and crime against
humanity?

[E].

Whether the victims of varying the crimes i.e. those of genocide, multiple war crimes

and crime against humanity committed by the defendant can be properly remedied by the
Honble Court?

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SUMMARY OF ARGUMENTS
[ISSUE: I] WHETHER THE VICTIMS APPLICATION CAN BE ADMITTED BEFORE THE HONBLE
COURT?

Victims are persons who individually or collectively suffered harm, including physical or
mental injury, emotional suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that constitute gross violations of international
human rights law, or serious violations of international humanitarian law. Victims in the
present case has suffered harm as they were subject to forced labour, starvation, inhuman
treatment, rape, and sexual abuse, all this shows physical harm which will traumatize victims
for their life and constitutes mental harm. Victims have also suffered material harm as many
trader ships were captured by the defendant and some of them were gifted to Andre Boullion.
In the present case, victims participating are natural persons. All the victims are the survivor
of the atrocities done by the defendant. The Statute holds that victims are natural persons
who have suffered harm. The defendant has committed multiple war crimes, crime against
humanity and incitement of genocide on the victims which resulted in harm of physical, mental
and material in nature. Victims were made to work for 62 hours per week that too the time of
work was not fixed; it was on the discretion of the Authorities of prison. She also ordered
Authorities not to provide meals to the prisoner if they have not worked thereby guaranteeing
that all prisoners were subjected to food deprivation.
The defendant through her orders inflicted severe physical or mental pain or suffering upon
one or more persons by the way of forced labour, corporal punishment and even use of lethal
forces. For every hour not worked, prisoner lost one meal; and for every five hour lost, each
prisoner was subject to corporal punishment on each other, with Astco guards having the power
to cane any prisoner who sought to use less than proper force when caning another prison and
lethal force could be used against anyone who sought to resist. Through all these atrocities of
Susan Wanchuk, victims suffered physical harm. Watching so many deaths of the fellow
prisoners caused mental harm to other prisoners (victims in the present case) and some of them
are still under observation. The war continued for two years during which all the victims were
in Astco Prisons as prisoner war because of which they suffered material harm as there was a
loss of earning which they could have earned during their period of suffering.

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A State which becomes a party to the Rome Statute accepts the jurisdiction of the Court with
respect to the crimes referred to in Article 5. The crimes that are the focus of this case occurred
in Eastern Slade, which is a State party to the Rome Statute.
. In the present case the personal interest of the victims are affected at this stage as the
prosecution of the alleged perpetrators starts and victims have to secure reparations at this
stage. With regard to the case level, the personal interest of the applicant must relate
specifically to the concrete proceedings against a particular person. The decisions rendered so
far were not clear about when this criterion was met; apparently suggesting that being affected
by a crime was sufficient to establish such a personal interest.
Victims participating in ICC proceedings have the right to appoint counsel of their own
choosing. In the present case the victims have agreed to be represented by Karl Graham.

[ISSUE: II] WHETHER THE ICC HAS JURISDICTION TO TRY THE DEFENDANTS FOR THE
GENOCIDE, WAR CRIMES AND CRIME AGAINST HUMANITY SHE HAD COMMITTED?

The Court shall have jurisdiction limited to the most serious crimes of concern to the
international community as a whole. The ICC is entitled to exercise jurisdiction over the
defendant in this dispute because the crimes she had committed constitute genocide, war crimes
and crime against humanity. A State which becomes a party to the Rome Statute accepts the
jurisdiction of the Court with respect to the crimes referred to in Article 5. The crimes that are
the focus of this case occurred in Eastern Slade, which is a State party to the Rome Statute. As
part of the peace treaty, which Crossford and Hambridge, also ratified, it was agreed that each
side should select two people, whose involvement would be referred to the International
Criminal Court. The defendant has been selected through the same process as prescribed in
the peace treaty.
The gravity threshold is also satisfied in the present case as the case has provoked social alarm
due to conduct that was systematic and large scale, as was necessitated in Lubanga. The
defendant has caused widespread atrocities and killings resulting in the deaths of over 187,000
prisoners and hence the defendant bears the greatest responsibility for the countless deaths and
extensive carnage which has occurred.

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[ISSUE: III] WHETHER THE VICTIMS CAN BE ALLOWED TO PRESENT THEIR VIEWS AND
CONCERNS BEFORE THE COURT?

Presently, the requisites laid down in Rule 85 of the ICC Rules of Procedure and Evidence
(from herein RPE) have been satisfied in relation to Graham and the other victims.
Victims are natural persons who have suffered harm as result of the commission of any
crime within the jurisdiction of the Court.

The expression natural persons has been

considered as referring to human beings and the same is satisfied in the present case. The notion
of harm has been interpreted as including physical harm, psychological harm, and material
harm and the same has been suffered by the present victims in the case at hand. Rule 85 only
requires that the alleged harm be the result of any crime within the jurisdiction of the Court.
The element of a causality link, exists in the present case as the harm suffered by the victims
is a consequence of and directly attributable to the present defendant. Graham and the other
victims do fall within the purview of the definition of victim as enshrined within Rule 85 of
the RPE and must be allowed to participate in the Trial proceedings and present their views
and concerns.
The archaic prison policies adopted by the defendant have caused a range of harms to be
suffered by the present victims. Not only has physical harm been suffered by way of
malnutrition and corporal punishment, such rigorous and inhuman conditions which the victims
were subject to, has also resulted in emotional and psychological harm being suffered by the
victims.
According to Article 68(3), where the personal interests of the victims are affected, the Court
shall permit their views and concerns to be presented and considered. Presently, as the victims
personal interests are affected, they must be permitted to participate in the current proceedings
and hence are entitled to present their views and concerns. Personal interests have been
interpreted as identification and prosecution of the alleged perpetrators and securing
reparations. In the present case, a link lies between the specific personal interests of the victims
and the particular stage of trial proceedings and hence the victims must be granted the
participating status.
The personal interest of the victims in the present case is not only to receive reparations but
also to unveil the truth before the court so that the can ultimately receive justice and hence the
personal interest criterion is met in the present case.
The ICC through a plethora of decisions passed by its principal chambers not only recognizes
but envisions a process of meaningful victim participation in the proceedings. The victims not
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only have right to tender evidence pertaining to guilt or innocence of the defendant but also
have a right to question witnesses. The testimony of the victims witnesses is relevant as the
same would be pertinent for the determination of the truth i.e. for the determination of the guilt
of the accused. The victims have the right to not only tender or adduce evidence pertaining to
the guilt of the accused but also have the right to question witnesses through their own legal
representatives.

[ISSUE: IV] WHETHER THE VICTIMS SUFFERED AN ARRAY OF HARM AND TRAUMA AS A
DIRECT RESULT OF THE DEFENDANTS CRIMES?

In the present case, 40,000 of the prison inmates dies as a direct consequence of being lethally
shot, while the rest i.e. 147,000 prisoners died as a result of the constant beatings, malnutrition
and forced labor. Witnessing the prison inmates die before the survivors has scarred them
mentally and psychologically, hence causing mental as well as psychological harm.
Hence, by witnessing their fellow inmates die as a direct result of the adoption of the prison
policy by the defendant, the surviving victims have suffered a prolonged mental harm and
psychological trauma which would constitute as harm recognizable by the court and hence to
remedy the same, the court must issue reparations in favor of the victims.
285,000 captured people had been placed in Astco facilities, the vast majority being of
Crossfordian nationality or ethnicity. They were all subject to a regime of forced labour. Each
prisoner had to work for 62 hours a week on a range of employment activities. Wanchuk on
her part, made sure that she personally reviewed all details of the disciplinary regime at the
prison. In particular, for every hour not worked, a prisoner lost one meal; and for every five
hour lost, each prisoner was subject to corporal punishment on each other, with Astco guards
having the power to cane any prisoner who sought to use less than proper force when caning
another prison and lethal force could be used against anyone who sought to resist. All this sort
of torture stemmed the pain or suffering for punishment, intimidation or coercion based on the
discrimination that they belong to Crossfordian nationality or ethnicity. All the victims have
suffered physical, mental and economic or material loss because of the war crime of torture
committed against them. She ordered that the women prisoners should be kept into Panopticon.
This place was so transparent that a person standing on the ground floor could see the person
on fourth floor, clearly. Furthermore the Defendant ordered that every cell should have CCTV
camera. The women were not given their privacy. This was a serious attack on human dignity.
This treatment toward the prisoners was inhuman. The defendant deprived the victims who
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were mainly civilians of Crossford or Western Slader of object indispensable to their survival
which not only include food but also basic amenities required for survival. She directed that
every prisoner would be offered 62 hours of work per week that too the time of work was not
fixed, it was on the discretion of the Authorities of prison. She also ordered Authorities not to
provide meals to the prisoner if they have not worked thereby guaranteeing that all prisoners
were subjected to food deprivation.

[ISSUE: V] WHETHER THE VICTIMS OF THESE CRIMES COMMITTED BY THE DEFENDANT CAN
BE PROPERLY REMEDIED?

Victims have been silent partners in the legal process, with role other than as witnesses, and at
the mercy of litigants. The Victims Declaration recognizes that victims should be treated with
compassion and respect for their dignity, and recommends measures to improve their access to
justice and prompt redress, including restitution, compensation and access to all the necessary
assistance/rehabilitation for their suffering. Thereby the survivors from Astco Prison facilities
are victims in the case at hand. The Court may, either upon request or on its own motion,
determine the scope and extent of any damage, loss and injury to, or in respect of victims. The
ICC has jurisdiction over individual criminals. The court may make an order directly against a
convicted person specifying appropriate reparations to, or in respect of, victims, including
restitution, compensation and rehabilitation.
Article 79 of the Rome Statute sets forth the concept of a trust fund. Subsection (1) of Article
79 enables the Assembly of State Parties to establish a trust fund for the benefit of victims.
Once the ICC is found to be the proper jurisdiction for International Crimes, the court may
order money and property collected through fines to be transferred through the trust fund to the
victims and the families of such victims.

(xv)
Written Submissions on behalf of the Victims

Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
ARGUMENTS IN DETAIL
ISSUE I : WHETHER THE VICTIMS APPLICATION CAN BE ADMITTED BEFORE THE HONBLE
COURT?

1. In furtherance to participate in the trial proceedings against the present defendant i.e.
Susuan Wanchuk, Karl Graham has filed an application before this Honble Court to be
admitted as a victim party and he must be permitted be one as the below mentioned
prerequisites have been satisfied.

[1.1] THE VICTIM FALLS WITHIN THE PURVIEW OF RULE 85 OF RULE OF


PROCEDURE AND EVIDENCE
2. A definition of the notion of victim cannot be found in the ICC Statue but rather in Rule 85
of the ICC Rules of Procedure and Evidence (RPE)1 and their interpretations contain a number
of common elements. First, the expression natural persons has been considered as referring
to human beings2, second, the expression organisations or institutions has been interpreted
to include legal persons3, third, the notion of harm has been interpreted as including physical
harm, psychological harm, and material harm4 and fourth, a causality link between the alleged
harm and the commission of a crime within the jurisdiction of the Court has been consistently
required5.
3. In the present case, the victims are satisfying all the required elements as per the
interpretation of Rule 85 of RPE, as all the victims are human beings who have suffered
physical, psychological and material harm because of the commission of crime within the
jurisdiction of the Court.
4. Victims are persons who individually or collectively suffered harm, including physical or
mental injury, emotional suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that constitute gross violations of international
human rights law, or serious violations of international humanitarian law. The term "victim"

Rules of Procedure and Evidence, ICC-ASP/1/3 and Corr. 1 (2002), rule 85.
Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-1119, Decision on Victims Participation,
(Jan. 18, 2008), 92.
3
DRC situation, Case No. ICC-01/04-423, Pre-Trial Chamber I, (Dec. 23, 2007), 137.
4
Supra note 2.
5
Supra note 3.
2

(1)
Written Submissions on behalf of the Victims

Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
also includes the immediate family or dependants of the direct victim and persons who have
suffered harm in intervening to assist victims in distress or to prevent victimization.6
5. Victims in the present case has suffered harm as they were subject to forced labour,
starvation, inhuman treatment, rape, and sexual abuse, all this shows physical harm which will
traumatize victims for their life and constitutes mental harm. Victims have also suffered
material harm as many trader ships were captured by the defendant and some of them were
gifted to Andre Boullion. Defendant has inflicted material or economic harm as one of victim
had his life savings went in the making of one of the ships; a ship with which he planned on
securing a fortune for his family and future generations. After he was captured, his ship was
gifted by Wanchuk to Boullion.
[1.1.1]. The element of the victim being a Natural Person is satisfied
6. In the present case, victims participating are natural persons. All the victims are the
survivor7 of the atrocities done by the defendant. The Statute holds that victims are natural
persons who have suffered harm.
[1.1.2]. The requisite of The notion of harm has been satisfied
7. The notion of harm, defined neither in the Statute nor in the Rules, has been interpreted by
the Pre-Trial Chamber on a case-by-case basis in the light of existing international human rights
standards. Both the Pre-Trial Chambers and the Trial Chamber have concluded that not only
physical injury but also economic loss and emotional suffering constitute harm within the
meaning of Rule 85.8
8. Material, physical, and psychological harm are all forms of harm that fall within the rule if
they are suffered personally by the victim.9
9. The defendant has committed multiple war crimes, crime against humanity and incitement
of genocide on the victims which resulted in harm of physical, mental and material in nature.
Victims were made to work for 62 hours per week that too the time of work was not fixed; it
was on the discretion of the Authorities of prison. She also ordered Authorities not to provide
meals to the prisoner if they have not worked thereby guaranteeing that all prisoners were

UN Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of
International Humanitarian Law, UNGA Res. A/60/147 (2005), principle 8.
7
Moot Proposition 17.
8
Supra note 2, at 92.
9
Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-1432, Judgment on the appeals of The
Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation, (Jan. 18, 2008), 32.

(2)
Written Submissions on behalf of the Victims

Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
subjected to food deprivation. The defendant through her orders inflicted severe physical or
mental pain or suffering upon one or more persons by the way of forced labour, corporal
punishment and even use of lethal forces10. For every hour not worked, prisoner lost one meal;
and for every five hour lost, each prisoner was subject to corporal punishment on each other,
with Astco guards having the power to cane any prisoner who sought to use less than proper
force when caning another prison and lethal force could be used against anyone who sought to
resist. One of the victims was captured and he had spent some 20 months in the Astco prison.
He had suffered a range of indignities there, and his weight had dropped from 75 kg to under
50 kg by the time the war ended.11 Through all these atrocities of Susan Wanchuk, victims
suffered physical harm.
10. At the end of the war, it was found that a total of 187,000 prisoners had died. Of this, there
were 170,000 prisoners who had been imprisoned after the war had started. Of this 170,000 a
total of 40,000 prisoners had died from bullet wounds. Of the remaining 130,000 malnutrition
and unhygienic conditions had taken another 20,000. Another 50,000 had died for reasons
whose post-mortem reports suggest are impact of blunt instruments in delicate parts of the
body. 50,000 had succumbed to the plague. 400 prisoners had committed suicide12, all of this
was result of crimes committed by the defendant, and these crimes have traumatized the mental
and physical status of victims. Watching so many deaths of the fellow prisoners caused mental
harm to other prisoners (victims in the present case) and some of them are still under
observation.
11. Compensation should be provided for any economically assessable damage, as appropriate
and proportional to the gravity of the violation and the circumstances of each case, resulting
from gross violations of international human rights law and serious violations of international
humanitarian law, such as material damages and loss of earnings, including loss of earning
potential.13 The war continued for two years during which all the victims were in Astco Prisons
as prisoner war because of which they suffered material harm as there was a loss of earning
which they could have earned during their period of suffering.

10

Moot Proposition 10.


Rome Statute, 2187 U.N.T.S. 90 (1998), art. 68(3).
12
Id at 44.
13
Supra note 6.
11

(3)
Written Submissions on behalf of the Victims

Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
[1.1.3]. That the Crimes occurred within the jurisdiction of the Court
12. The ICC is entitled to exercise jurisdiction over the defendant in this dispute because the
crimes she had committed constitute genocide, war crimes and crime against humanity. The
ICC may exercise jurisdiction when the requirements of Article 12(2) of the Rome Statute have
been satisfied. Pursuant to Article 12(2)(a), jurisdiction arises when conduct proscribed under
the Rome Statute has "occurred" on the "territory" of a State party to the Statute. This territorial
requirement is based on the principle of territorial jurisdiction under general international law.
A State which becomes a party to the Rome Statute accepts the jurisdiction of the Court with
respect to the crimes referred to in Article 5. The crimes that are the focus of this case occurred
in Eastern Slade, which is a State party to the Rome Statute.

[1.1.4]. Nexus between the harm suffered and crimes under ICC jurisdiction
13. The causal link or nexus, reflected in Rule 85 in the words as a result of, is established
if the applicants credibly demonstrate that the harm they have suffered is a direct result of the
commission of crimes falling within the ICCs jurisdiction.
In the present case victims have suffered physical harm because of war crimes of torture,
inhuman treatment, and starvation under Article 8 of the Statute and crime against humanity
for the crime of torture under Article 7 of the Statute, as the victims were subjected to forced
labour, corporal punishment, beating, starvation and deprivation from the objects indispensable
to survival. Victims have also suffered material harm as they had to survive the Astco prisons
for two years which resulted into loss of earning.
Victims were subject to mental harm because of crime of genocide under Article 6 of the
Statute, as watching fellow prisoners dying because of getting shot, or being subject to
malnutrition and unhygienic condition, or succumbed to plague or suicide war mentally
traumatic for victims, which caused psychological harm or mental harm.

[1.2] THE VICTIM FALLS WITHIN THE PURVIEW OF ARTICLE 68(3) OF THE ROME
STATUTE
14. The three requirements for participation stipulated in Article 68(3) of the Statute exist in
relation to the stage of the proceedings in which the applicant wants to participate. The judges
must determine whether there is sufficient personal interest for participation, whether such
participation is appropriate at the procedural stage in question and whether it would be
prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

(4)
Written Submissions on behalf of the Victims

Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
15. According to Pre Trial Chamber, the definition of victims personal interests under article
68 (3) of the ICC Statute includes interests that are common to all victims, such as verification
of the events in which they were allegedly harmed, identification and prosecution of the alleged
perpetrators and securing reparations.14
16. Whenever victims personal interests are affected by a given stage of the proceedings,
such a stage must be considered automatically as appropriate for victims to present their
views and concerns - that is to say, to participate.15
17. In the present case the personal interest of the victims are affected at this stage as the
prosecution of the alleged perpetrators starts and victims have to secure reparations at this
stage.
18. The Court shall permit the views and concerns of victims to be presented and considered
at stages of the proceedings determined to be appropriate by the Court where the personal
interests of the victims are affected, and in a manner which is not prejudicial to or inconsistent
with the rights of the accused and a fair and impartial trial.16
19. With regard to the case level, the personal interest of the applicant must relate specifically
to the concrete proceedings against a particular person. The decisions rendered so far were not
clear about when this criterion was met; apparently suggesting that being affected by a crime
was sufficient to establish such a personal interest.17
20. As regards the appropriateness of the participation and its consistency with fair trial
standards and the rights of the accused, instead of completely rejecting victim participation the
judges tend to rely more on defining certain modalities of participation that allow those
interests to be safeguarded, based on the idea that it was more the mode of participation that
could be prejudicial than the actual participation as such.18

14

Prosecutor v. Bemba, Case No. ICC-01/05-01/08-320, Pre-Trial Chamber III Fourth Decision on Victims
Participation, (Dec. 12, 2008), 90.
15
Id.
16
Supra note 11.
17
Supra note 3.
18
Situation of the Democratic Republic of Congo, Case No. ICC-01/04-101, (Jan. 17, 2006), 58.

(5)
Written Submissions on behalf of the Victims

Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
[1.3] COMMON LEGAL REPRESENTATION OF THE VICTIMS IS ENVISIONED BY
THE COURT
21. Victims participating in ICC proceedings have the right to appoint counsel of their own
choosing.19 In the present case the victims have agreed to be represented by Karl Graham.20
Rule 90 of RPE give a right to victim to choose a legal representative. Rule 90(3) of RPE say
if victims are unable to choose a common legal representative, then the Chamber choose a
common legal representative.
22. Karl Graham is an advocate by profession and his ship was captured and he had spent
some 20 months in the Astco prison. He had suffered a range of indignities there21, hence he is
a capable legal representative to represent victims as he is well known to law and he has
suffered all the harms because of the crimes committed by the defendant.

ISSUE II : WHETHER THE ICC HAS JURISDICTION TO TRY THE DEFENDANTS FOR THE GENOCIDE,
WAR CRIMES AND CRIME AGAINST HUMANITY SHE HAD COMMITTED?

23. The Court shall have jurisdiction limited to the most serious crimes of concern to the
international community as a whole. The ICC is entitled to exercise jurisdiction over the
defendant in this dispute because the crimes she had committed constitute genocide, war crimes
and crime against humanity. The Rome Statute, recognized by the United Nations Declaration
of Basic Principles of Justice for Victims of Crime and Abuse of Power, affirmed by the
finalized text of the Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, and adopted by the Human Rights Commission in April 2005,
recognizes a trinity of rights: the right to an effective remedy and access to justice, including
the ability to have access to, and participate in, proceedings where interests are affected; the
right to fair treatment, dignity and respect throughout the process including protection from
reprisals and re-traumatization, access to support and respect for victims' privacy; and the right
to adequate and effective reparation, including access to appropriate forms of reparation.22

19

Prosecutor v. Banda & Jerbo, Case No. ICC-02/05-03/09-337, Decision on common legal representation, (May
25, 2012), 12.
20
Moot Proposition 16.
21
Id.
22
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, U.N. Doc.
A/RES/40/34/Annex (1985).

(6)
Written Submissions on behalf of the Victims

Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
[2.1] THE ICC HAS THE APPROPRIATE JURISDICTION FOR MULTIPLE CRIMES
WHICH REFLECT THE HARM SUFFERED BY THE VICTIMS
24. The ICC may exercise jurisdiction when the requirements of Article 12(2) of the Rome
Statute have been satisfied. Pursuant to Article 12(2)(a), jurisdiction arises when conduct
proscribed under the Rome Statute has "occurred" on the "territory" of a State party to the
Statute. This territorial requirement is based on the principle of territorial jurisdiction under
general international law. A State which becomes a party to the Rome Statute accepts the
jurisdiction of the Court with respect to the crimes referred to in Article 5. The crimes that are
the focus of this case occurred in Eastern Slade, which is a State party to the Rome Statute.
As part of the peace treaty, which Crossford and Hambridge, also ratified, it was agreed that
each side should select two people, whose involvement would be referred to the International
Criminal Court.23 The defendant has been selected through the same process as prescribed in
the peace treaty.

[2.2] THE CASE IS ADMISSIBLE BEFORE THE COURT FOR ITS DETERMINATION
25. Referring to Article 17, only those cases are inadmissible if the case is not of sufficient
gravity24, the case is being investigated or prosecuted by a state which has jurisdiction over it,
the case has been investigated by a State having jurisdiction over it and has decided not to
prosecute the accused or when the person has already been tried for the conduct which is the
subject of the complaint,. The present case does not fall within the ambit of any of the
abovementioned situations as the defendant is neither being prosecuted nor investigated by any
state having the jurisdiction over her crimes, nor has the defendant been tried for her criminal
conduct.
26. The gravity threshold is also satisfied in the present case as the case has provoked social
alarm due to conduct that was systematic and large scale, as was necessitated in Lubanga.25
Furthermore, a case is said to be of sufficient gravity if it captured those who may bear the
greatest responsibility for the alleged crimes committed.26 The defendant has casued
widespread atrocities and killings resulting in the deaths of over 187,000 prisoners and hence

23

Moot Proposition 13.


Rome Statute, 2187 U.N.T.S. 90 (1998), art. 17(4).
25
Supra note 17.
26
Situation in Kenya, Case No. ICC-01/09, Authorisation to open an Investigation, (Mar. 31, 2010),
https://www.iccpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/Pages/situa
tion%20index.aspx.
24

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Written Submissions on behalf of the Victims

Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
the defendant bears the greatest responsibility for the countless deaths and extensive carnage
which has occurred.

ISSUE III : WHETHER THE VICTIMS CAN BE ALLOWED TO PRESENT THEIR VIEWS AND
CONCERNS BEFORE THE COURT?

27. It is submitted that the drafters of the Rome Statute and the ICC Rules of Procedure and
Evidence recognized the importance of involving victims of the most serious crimes directly
and integrally in the Courts procedures, not only as witnesses for the prosecution but also as
actors with a number of roles and rights within the process.27
28. Presently, the requisites laid down in Rule 85 of the ICC Rules of Procedure and Evidence
(from herein RPE) have been satisfied in relation to Karl Graham and the other victims.
Victims are natural persons who have suffered harm as result of the commission of any
crime within the jurisdiction of the Court.28 The expression natural persons has been
considered as referring to human beings29 and the same is satisfied in the present case. The
notion of harm has been interpreted as including physical harm, psychological harm, and
material harm and the same has been suffered by the present victims in the case at hand.30
Furthermore, Rule 85 only requires that the alleged harm be the result of any crime within the
jurisdiction of the Court.31 The element of a causality link i.e. a causality link between the
alleged harm and the commission of a crime within the jurisdiction of the Court, exists in the
present case as the harm suffered by the victims is a consequence of and directly attributable
to the present defendant.
29. Allowing victims to participate in the proceedings does not mean that the suspect/accused
is facing two prosecutors because victims may participate if they fulfil the conditions set forth
in article 68(3) of the Statute, namely that their personal interests are affected, their

27

Carla Ferstman and Clementine Olivier, Ensuring the effective participation of victims before the International
Criminal
Court
(May,
2005),
http://www.redress.org/downloads/publications/REDRESS%20%20Legal%20Representation%20for%20Victim
s%2023%20May%202005.pdf.
28
Supra note 1.
29
Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-1432, Decision on Victims' Participation,
(Jan. 18, 2008), 32.
30
Hector Olasolo & Alejandro Kiss, The Role of Victims in Criminal Proceedings before the International
Criminal Court, 81 Revue internationale de droit penal 127 (2010).
31
Supra note 3.

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Written Submissions on behalf of the Victims

Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
participation is found to be appropriate, and the manner of their participation is not prejudicial
to or inconsistent with the rights of the accused and a fair and impartial trial32
Hence, Karl Graham and the other victims do fall within the purview of the definition of victim
as enshrined within Rule 85 of the RPE and must be allowed to participate in the Trial
proceedings and present their views and concerns.

[3.1] THE VICTIMS SUFFERED HARM RELEVANT UNDER RULE 85 OF THE RPE
30. PTC I, in its Lubanga33 decision laid down that harm under Rule 85 would constitute of
emotional suffering, physical harm and economic loss and later on the Appeals chamber
also included psychological harm within the purview of the same.34
31. PTC I has stated that incidents of enslavement and torture would constitute of physical
and mental suffering35 while PTC II held that incidents of shooting and witnessing events of
an exceedingly violent and shocking nature would constitute of physical and emotional harm36,
however no straitjacket formula or definition can be adopted in regards to the same.
32. The archaic prison policies adopted by the defendant has caused a range of harms to be
suffered by the present victims. Not only has physical harm been suffered by way of
malnutrition and corporal punishment, such rigorous and inhuman conditions which the victims
were subject to, has also resulted in emotional and psychological harm being suffered by the
victims.

[3.2] THE VICTIMS MUST BE PERMITTED TO PARTICIPATE IN THE CURRENT


PROCEEDINGS AS THEIR PERSONAL INTERESTS ARE AFFECTED
33. According to Article 68(3), where the personal interests of the victims are affected, the
Court shall permit their views and concerns to be presented and considered.37
34. Presently, as the victims personal interests are affected, they must be permitted to
participate in the current proceedings and hence are entitled to present their views and

32

Supra note 17.


Id.
34
Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-1432, Decision on Victims' Participation,
(Jan. 18, 2008).
35
Situation in the Democratic Republic of Congo, Case No. ICC-01/04-103, Prosecutions Application for Leave
to Appeal Pre-Trial Chamber Is Decision on the Applications for Participation in the Proceedings of VPRS 1,
VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS, (23 January 2006).
36
Supra note 2.
37
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute 827 (Oxford
University Press 2010).
33

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Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
concerns.38 Personal interests have been interpreted as identification and prosecution of the
alleged perpetrators and securing reparations.39 In the present case, a link lies between the
specific personal interests of the victims and the particular stage of trial proceedings and hence
the victims must be granted the participating status.40 Personal interests further encompass
receiving reparations, expressing views and concerns, verifying particular facts, establishing
the truth and protecting their dignity.41 Judge Song of the Appeals Chamber was of the opinion
that personal interests of the victims include the right to receive reparations and to receive
justice.42 PTC I has also held that personal interest would extend to the right of justice i.e.
the identification and prosecution of the perpetrators.43
35. The very recognition of individuals as victims with a right to participate in the proceedings
has been found not to affect the rights of the defence because said recognition is not, per se,
prejudicial to the defence.44
36. Therefore, the victims must be permitted to participate in the Trial proceedings against the
defendant and that the same would not be detrimental to or inconsistent with the rights of the
accused and a fair and impartial trial as the victims themselves have a personal interest in the
trial. The personal interest of the victims in the present case is not only to receive reparations
but also to unveil the truth before the court so that the can ultimately receive justice and hence
the personal interest criterion is met in the present case.

[3.3] THE VICTIMS HAVE THE RIGHT TO TENDER EVIDENCE AGAINST THE
DEFENDANT PERTAINING TO THE GUILT OF THE DEFENDANT
37. The ICC through a plethora of decisions passed by its principal chambers not only
recognizes but envisions a process of meaningful victim participation in the proceedings. The
victims not only have right to tender evidence pertaining to guilt or innocence of the defendant
[3.3.1] but also have a right to question witnesses. [3.3.2]

38

Rome Statute, 2187 U.N.T.S. 90 (1998), art. 68(3).


The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-320, Decision on 97 applications for
participation at the Pre-Trial Stage of the case, (Jun. 10, 2008).
40
Supra note 2.
41
The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07-1778, (Sep. 26, 2008), https://www.icccpi.int/iccdocs/doc/doc571253.pdf.
42
Supra note 9.
43
Prosecutor v. Bahar Idriss Abu Garda, Case No. ICC02/0502/09121, Decision on the 34 Applications for
Participation at the PreTrial Stage of the Case, (Sep. 25, 2009)
44
Situation in Darfur, Case No. ICC PT. Ch. I, (Dec. 3, 2007) 4.
39

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Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
[3.3.1]. That the Rome Statute envisions a process wherein the victims can adduce evidence
pertaining to the guilt of the accused
38. The TC has highlighted that in order to ensure the victims a right to participate is
meaningful victims may tender evidence regarding the guilt or innocence of the defendant
and hence the legal representatives have a right to introduce evidence pertaining to the guilt
or innocence of the accused.45 Furthermore, victims may be permitted to tender and examine
evidence if in the view of the Chamber it will assist it in the determination of the
truth.46 Lastly, not only are the victims permitted to adduce or submit evidence, but are also
empowered to challenge the admissibility of evidence submitted by the prosecution or
defence.47 The only prerequisite is that the must victims to move the Chamber to request the
submission of all evidence that it considers necessary for the determination of the truth, hence
ensuring that the evidence tendered by the victims is also admitted.48 Hence, the testimony of
the victims witnesses is relevant as the same would be pertinent for the determination of the
truth i.e. for the determination of the guilt of the accused.

[3.3.2]. That Rule 91 of the RPE contemplates the questioning of witnesses through the legal
representatives of the victims
39. Rule 91 contemplates the questioning of witnesses by legal representatives of victims.
Furthermore, more leeway is given to victim representation where the hearing concerns
reparations.49 The Appeals Chamber has further held in Lubanga50 that the right to question
witnesses necessarily implies matters which bear upon the guilt or innocence of the accused
person. In Lubanga51, the Chamber delineated the victims questioning of witnesses to:
(i)

The issues and areas in which the victims have a personal interest

(ii)

The context and history which is relevant to the charges that the accused faces

(iii)

The matters within the expertise of the witness

45

Supra note 37.


Id.
47
Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-1432, Decision on Victims' Participation,
(Jan. 18, 2008).
48
Ibid.
49
Rules of Procedure and Evidence, ICC-ASP/1/3 and Corr. 1 (2002), rule 91(4).
50
Supra note 48.
51
Id.
46

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Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
40. Therefore, to conclude the victims have the right to not only tender or adduce evidence
pertaining to the guilt of the accused but also have the right to question witnesses through their
own legal representatives.

ISSUE IV : WHETHER THE VICTIMS SUFFERED AN ARRAY OF HARM AND TRAUMA AS A DIRECT
RESULT OF THE DEFENDANTS CRIMES?

41. It is brought to the Courts notice that as a direct result of the defendants crimes, the
surviving victims have suffered a wide array of harms recognizable by the Court varying and
ranging from mental harm to physical harm. In order to ensure justice is served and the victims
are ultimately and finally rehabilitated, the Court must issue reparations in favour of the victims
in order to remedy their condition.

[4.1] VICTIMS SUFFERED HARM AS A DIRECT RESULT OF THE CRIME OF


GENOCIDE
42. Even though the present victims made it alive even after the employment of the
defendants Machiavellian policies, they did not make it out unscathed and suffered mental and
psychological harm as a result of witnessing those of their fellow nationality and ethnicity dies
before them. In the present case, 40,000 of the prison inmates dies as a direct consequence of
being lethally shot, while the rest i.e. 187,000 prisoners died as a result of the constant beatings,
malnutrition and forced labor. Witnessing the prison inmates die before the survivors has
scarred them mentally and psychologically, hence causing mental as well as psychological
harm.
43. Psychological trauma is the unique individual experience of an event or enduring
conditions, in which, the individuals ability to integrate his/her emotional experience is
overwhelmed.52 Thus, a traumatic event or situation creates psychological trauma when it
overwhelms the individuals ability to cope, and leaves that person fearing death, annihilation,
mutilation, or psychosis.53 Psychological harm can also be a result of the fear of the victims

52

Esther Giller, What is Psychological Trauma? http://www.sidran.org/resources/for-survivors-and-lovedones/what-is-psychological-trauma.


53
Id.

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Symbiosis Law School, Pune International Criminal Trial Advocacy Competition, 2016
being killed during beatings inflicted.54 Psychologically traumatic experiences often involve
physical trauma that threatens one's survival and sense of security.55
44. Similarly, cases in which an individual is required to forcibly work for inordinate hours
for a period of 3-4 years would constitute as prolonged mental harm.56 Prolonged mental harm
is defined as mental damage extending for an extended period of time.57
45. Hence, by witnessing their fellow inmates die as a direct result of the adoption of the
prison policy by the defendant, the surviving victims have suffered a prolonged mental harm
and psychological trauma which would constitute as harm recognizable by the court and hence
to remedy the same, the court must issue reparations in favor of the victims.

[4.2] VICTIMS WERE SUBJECTED TO THE WAR CRIME OF TORTURE


46. For the application of provisions of torture as war crime in the Statue, torture is defined
by the Elements of Crime as infliction of severe physical or mental pain or suffering upon one
or more persons for purposes such as obtaining information or a confession, punishment,
intimidation or coercion or for any reason based on discrimination of any kind.58
47. 285,000 captured people had been placed in Astco facilities, the vast majority being of
Crossfordian nationality or ethnicity. They were all subject to a regime of forced labour. Each
prisoner had to work for 62 hours a week on a range of employment activities. Wanchuk on
her part, made sure that she personally reviewed all details of the disciplinary regime at the
prison. In particular, for every hour not worked, a prisoner lost one meal; and for every five
hour lost, each prisoner was subject to corporal punishment on each other, with Astco guards
having the power to cane any prisoner who sought to use less than proper force when caning
another prison and lethal force could be used against anyone who sought to resist. All this sort
of torture stemmed the pain or suffering for punishment, intimidation or coercion based on the
discrimination that they belong to Crossfordian nationality or ethnicity. All the victims have
suffered physical, mental and economic or material loss because of the war crime of torture
committed against them.

54

Mehinovic v. Vuckovic, 198 F. Supp 2d. 1346 (Idaho 1986).


Emotional and Psychological Trauma (Sep. 13, 2014), https://www.helpguide.org.
56
Sackie v. Ashcroft, 270 F. Supp 2d. 596 (Miss. 1986).
57
Websters Third New International Dictionary 1815 (8th ed. Merriam Webster U.S. 2008)
58
Rome Statute, Elements of Crimes, ICC-ASP/1/3 (2002), art. 8(2)(a)(ii).
55

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[4.3] VICTIMS WERE SUBJECT TO THE WAR CRIME OF INHUMAN TREATMENT
48. It is humbly submitted before this Honble Court that the execution and implementation
of the Defendants order inflicted severe physical and mental pain and suffering on the victims
which was inhumane in nature and was a war crime of inhuman treatment under Art. 8(2)(a)(ii)
of the Statute. All the elements required for inhuman treatment has been satisfied above. ICTY
has used a wider definition determining that inhuman treatment is that which causes serious
mental or physical suffering or injury or constitutes a serious attack on human dignity. 59 She
ordered that the women prisoners should be kept into Panopticon. This place was so transparent
that a person standing on the ground floor could see the person on fourth floor, clearly.
Furthermore the Defendant ordered that every cell should have CCTV camera. The women
were not given their privacy. This was a serious attack on human dignity. This treatment toward
the prisoners was inhuman.

[4.4] VICTIMS WERE SUBJECTED TO WAR CRIME OF INTENTIONALLY USING


STARVATION AS A METHOD OF WARFARE
49. It is humbly submitted before this Honble Court that Susan Wanchuk i.e. the defendant
had adopted inhuman and cruel prison policies, by the way of exercising her position as the
Defence Minister of Eastern Slade, as a method of warfare to starve civilians and hence commit
a war crime of starvation as a method of warfare. War crime of starvation as a method of
warfare is punishable under Article 8(2) (b) (xxv) of the Rome Statute. The prohibited conduct
of this war crime is defined in the elements as the perpetrator deprived civilians of objects
indispensable to their survival. Here the deprivation is not just of food or nourishment but also
the more general meaning of deprivation or insufficient supply of some essential commodity,
of something necessary to live.
50. The defendant deprived the victims who were mainly civilians of Crossford or Western
Slader of object indispensable to their survival which not only include food but also basic
amenities required for survival. She directed that every prisoner would be offered 62 hours of
work per week that too the time of work was not fixed, it was on the discretion of the
Authorities of prison. She also ordered Authorities not to provide meals to the prisoner if they
have not worked thereby guaranteeing that all prisoners were subjected to food deprivation.

Prosecutor v. Zejnil Delali, Case No. IT-96-21-A, (Feb. 20, 2001), www.icty.org/x/cases/mucic/acjug/en/celaj010220.pdf.
59

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51. They were subject to carnal brutality and no men or women in any of the prison were
supplied with proper amenities for their basic survival and hygiene. All this was done in the
lieu of international armed conflict between Eastern Slade and Western Slade in which civilians
got caught up, and all these sort of inhuman treatment of starvation was done on the orders of
Susan Wanchuk with the common purpose of harming the general population of Eastern Slade
as a method of warfare.

[4.5] THE VICTIMS SUFFERED HARM AS A DIRECT RESULT OF THE CRIME


AGAINST HUMANITY OF TORTURE
52. Susan Wanchuk was the Eastern Slade Minister of Defence, a position because of which
she also enjoyed being the second in the chain of command of the Astco Prison facilities. She
herself used to personally take care of the disciplinary regime at the prison. In the name of
reformative construction, she imposed barbaric policies throughout the prison whereby which
the prisoners were mandated to work at least 62 hours a week, a threshold if not met, the
prisoners so concerned would lose one meal for every hour not worked, furthermore such work
could be seen to be undertaken by the administrative authorities at any point of time in a day.
Further for every 5 hours not worked, corporal punishment was inflicted by the guards upon
the prisoners.
53. Also Susan Wanchuk made another policy whereby the prisoners would not be allowed
to work more than 50 hours a week, a rule because of which the prisoners mandatorily lost
meals and were inflicted corporal punishment upon as they were not able to meet the minimum
threshold of 62 hours in a week, also by a new rule that was introduced by the defendant was
that prisoners were to impose corporal punishment on each other. With Astco guards having
the power to cane any prisoner, who sought to use less than proper force while caning another
prisoner. It was result of her barbaric policies that 187,000 people died by the end of the war
whereby a staggering 40,000 people died as a result of being shot by the guards.

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ISSUE V: WHETHER THE VICTIMS OF THESE CRIMES COMMITTED BY THE DEFENDANT CAN BE
PROPERLY REMEDIED?

54. In many ways, victims have been silent partners in the legal process, with little role other
than as witnesses, and at the mercy of litigants60. In order for this Court to provide true justice
for victims of international criminal acts, it must incorporate a process that adequately
recognises the personal interest of the victim, and not simply focus on punishing the criminal.

[5.1] REDRESSAL AND REPARATION FOR VICTIMS OF GROSS VIOLATIONS OF


HUMAN RIGHTS IS AN IMPERATIVE DEMAND OF JUSTICE AND A PRESSING
REQUIREMENT UNDER INTERNATIONAL LAW
55. International Law Professor, Theo von Boven, illustrates the growing awareness in the
international community that reparation for victims of gross violations of human rights is
necessary in offering justice61. Victims of International criminal acts are entitled to seek justice
and receive prompt redress62. Regardless of the outcome, the very fact that the ICC hears this
dispute will help build a body of jurisprudence relating specifically to victims reparations. The
Court will therefore be better equipped to aid victims in future cases.

[5.2] THE ASTCO SURVIVORS WHO SUFFERED THIS GREAT HARM ARE
CONSIDERED VICTIMS UNDER APPLICABLE INTERNATIONAL LAW
56. The Victims Declaration63 reflects the collective will of the International Community to
establish a balance between the fundamental rights of suspects and offenders, and the rights
and interests of victims64. The Victims Declaration recognises that victims should be treated
with compassion and respect for their dignity, and recommends measures to improve their
access to justice and prompt redress, including restitution, compensation and access to all the
necessary assistance/rehabilitation for their suffering65.

Victims Rights Working Group, What are Victims Rights under International Law and before the ICC? (2002),
http://www.vrgw.org/victimsrights.html.
61
Theo von Boven, Study concerning the Right to Restitution, Compensation and Rehabilitation for Victims of
gross violations of Human Rights and Fundamental Freedoms 11-15 (United State Institute of Peace Press, 1995).
62
Declaration of basic principles of justice for victims of crime and abuse of power, General Assembly
Resolution,40/34, Annex, U.N. Doc. A/RES/40/34/Annex (Nov. 29, 1985).
63
Id.
64
Supra note 63.
65
Id.
60

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57. The Victims Declaration defines Victims as: persons who, individually or collectively,
have suffered harm, including physical or mental injury, emotional suffering, economic loss or
substantial impairment of their fundamental rights, through acts or omission that are in
violation of criminal laws operative within Member States 66
58. People who have been on as prisoners on floating prisons for approximately 2 years upon
which they were forced to work for 62 hours a week67 whereby they lost 1 meal for every hour
not worked and the defendant also made a policy to not to allow the prisoners to work more
than 50 hours68 a week due to which they had loose meals because of reasons beyond their
control, further corporal punishment was inflicted by the guards and as a policy they also let
fellow prisoners beat each other, if the corporal hit was not hard enough, being at the discretion
of the guards, the guards used to beat both of them up, further the women were left to suffer
with no privacy and no proper sanitation and upon petty requests, the guards used to use
deterrent methods like electrocution, water-boarding, etc. 187,000 died as a result of the very
same practices and the surviving victims have suffered immense mental injury and emotional
suffering from the atrocities that were bestowed upon them, all directly resulting from
violations of international criminal law.

[5.3] VICTIMS OF THESE INTERNATIONAL CRIMES ARE ENTITLED TO ACCESS


THE MECHANISMS OF JUSTICE AND TO PROMPT REDRESSAL
59. Victims should be treated with compassion and respect for their dignity.69 The General
Assembly has acknowledged the necessity of establishing and strengthening judicial and
administrative mechanisms where necessary to enable victims to obtain redress through formal
procedures that are fair.70

[5.4] THE ICC MUST ESTABLISH PRINCIPLES RELATING TO REPARATIONS TO, OR


IN RESPECT OF VICTIMS, INCLUDING RESTITUTION, COMPENSATION AND
REHABILITATION
60. The Court may, either upon request or on its own motion, determine the scope and extent
of any damage, loss and injury to, or in respect of victims71. This Case has the potential to set
66

Id.
Moot Proposition 9.
68
Moot Proposition, Annexure 2.
69
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, General Assembly
Resolution, 40/34, Annex, U.N. Doc. A/RES/40/34/Annex (Nov. 29, 1985).
70
Id.
71
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 75(1).
67

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a respected precedent for all cases heard in front of the ICC in the future. It is necessary for the
ICC to steer away from the conventional prosecution/defence court system, which only focuses
on punishing criminals, and instead, establish a system that punishes criminals as well as
compensates victims. A consistent theme throughout court systems around the world is
"deterrence." If the ICC adjudicates cases of this nature, and these specific crimes are
condemned, perpetrators will be deterred from committing future crimes because their fate will
lead them to real consequences from the ICC. These consequences will not only include
criminal sanctions, but also international shame and disrespect, and be forced to monetarily
compensate victims.
[5.5] THE COURT MAY MAKE AN ORDER DIRECTLY AGAINST A CONVICTED
PERSON
61. The ICC has jurisdiction over individual criminals. The court may make an order directly
against a convicted person specifying appropriate reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation.72 Defendants must make fair restitution
to these victims, their families and dependants. The General Assembly has agreed that victims
are entitled to have their property returned, get paid for harm or loss suffered, and receive
reimbursement of expenses incurred as a result of victimization73.
In this case at hand, the defendant Susan Wanchuk committed Genocide whereby which she
managed to kill 187,00074 people further she has also committed the said acts of Crimes against
Humanity of Torture upon the Prisoners at the facilities of Astco where the defendant used to
employ very harsh disciplinary measures whereby which she inflicted physical and mental pain
on the said prisoners75, War Crimes. Thereby the defendant has also violated international
criminal laws, and therefore, each is in debt to the victims of their crimes.

[5.6] THE ROME STATUTE CREATED A TRUST FUND FOR VICTIMS IN THIS
SITUATION
62. Article 79 of the Rome Statute sets forth the concept of a trust fund. Subsection (1) of
Article 79 enables the Assembly of State Parties to establish a trust fund for the benefit of
victims76. Once the ICC is found to be the proper jurisdiction for International Crimes, the court

72

Rome Statute, 2187 U.N.T.S. 90 (1998), art. 75(2).


Supra note 63.
74
Moot Proposition 11.
75
Moot Proposition, Annexure 1.
76
Rome Statute, 2187 U.N.T.S. 90 (1998), art. 79.
73

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may order money and property collected through fines to be transferred through the trust fund
to the victims and the families of such victims77.
63. The defendant in this case who committed these vicious international crimes is the Eastern
Slade Minister of Defence, Susan Wanchuk. The total wealth that the Standing Committee
found out upon freezing the accounts of Susan Wanchuk was about $2,000,000, an amount that
would not be enough for compensating these 51 victims who have suffered from the victims
inexcusable acts, the courts must reach out for other means of compensation. The trust fund
created in art. 79 of the Rome Statute is precisely what the victims who have survived from
Astco Prison facilities after the war need in order to re-establish themselves, and be
compensated for the harm they have suffered.

77

Id.

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PRAYER

Wherefore, it is prayed, in light of the issues raised, arguments advanced, and authorities cited,
that his Honble Court may be pleased to declare that:

a) The Victims Application filed on behalf of Karl Graham can be admitted before the
Court;

b) The ICC has jurisdiction to try the defendants for the genocide, multiple war crimes
and crime against humanity she had committed;

c) The 50 victims along with Karl Graham can be allowed to present their views and
concerns before the Court;
d) The victims suffered an array of harm and trauma as a direct result of the defendants
crimes ranging from genocide, multiple war crimes and crime against humanity
committed under the jurisdiction of the Honble Court;

e) The victims of these crimes committed by the defendant can be properly remedied for
their physical, mental, psychological and material harm that they have suffered as a
result of the defendants crimes.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests
of Justice, Fairness, Equity and Good Conscience.
For this Act of Kindness, the Victim Shall Duty Bound Forever Pray.

Sd/.
(Counsel for the Victims)

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