Arguments Accused Defense

8/11/2019 Arguments Accused Defense

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Arguments

The Prosecutor vs Colonel Jingo Crackle

1) Proposed charges are baseless and the court has no Jurisdiction

(a) Colonel Jingo Crackle is prosecuted as a joint criminal enterprise,

within the meaning of Article 25(3)(a) of the Roman Statute of the

International Criminal Court (ICC) which states that crimes are

punishable if a person -

Commits such a crime, whether as an individual, jointly with another or

through another person, regardless of whether that other person is

criminally responsible;

In the present scenario, the only link between Colonel Jingo Crackle andLuke Skittle is and allegation that the Hist Liberation Front(HLF) is

getting help from the Kimatan government and army. Furthermore Jingo

Crackle is referred to as the protector of Luke Skittle. These are mere

allegations upon Colonel Jingo Crackle.

The crimes that have been commited were due to the internal rebellions

and were also committed by the citizens of Nooba and Colonel Jingo

Crackle had no role in it. He did not directly or indirectly support the

movement.

The total responsibility of the bombings and the atrocities have beentaken by the HLF. Therefore as there being no link between Colonel Jingo

Crackle and the HLF, and also the allegations are baseless and are without

a shred of conclusive evidence, the arrest of Colonel Jingo Crackle is

without a just cause.

(b) it should be taken into account that as Article 5 of the Roman ICC

Statute state the crimes that come under the jurisdiction of the ICC. We

see that as per our previous argument, there has not been any direct

involvement of Colonel Jingo Crackle with respect of the atrocities that

took place throughout Sutas as on 25thFebruary 2010 and also post that

date. The charges were framed on the basis of indirect involvement. And

these charges are without any conclusive proof.

It should be noted that the HLF that is the rebellion group in Nooba,

which took the responsibility of the attacks were citizens of Nooba and

were in no way related to Colonel Jingo Crackle, and therefore this was

the internal matter of Nooba. As no such crime did take place in Kimatan

or by involvement of Coloner Jingo Crackle, the court has no jurisdiction

to conduct a trial against Colonel Jingo Crackle and accuse him of the

charges.


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RESOLUTION 2019 IS NOT IN ACCORDANCE WITH A PRINCIPLE OF THE UN.

THE article 2(4) of the UN Charter, prohibits the use of force to the international

relations of states, i.e.,not with regard to their internal situations, which, according to

article 2(7), belong to States domestic jurisdiction. As stated in Bruno Simma, The

Charter of the United Nations: A Commentary (Oxford University Press , Oxford 2

nd

ed. 2002)Randelzhoffer on Article 2(4) MN 29.

A civil war is not in itself a breach of international peace. As we see in the present

scenario, the atrocities were going on in Sutas that is a part of Nooba and the

responsibility of the same was taken up by HLF which was also a rebellious

organization which contained Nooba citizens. Therefore this was an internal

situation for Nooba and this should be tried in its National court. Colonel Jango

Crackle is a third party and he should not be involved in the same.

The Councils authority exclusively depends on its acceptance by the member

States. This acceptance will not be enhanced if the Council claims for itself a

place above the Charter. On the contrary, an authority that negates its legal

foundations negates itself.

1. In view of the aforesaid legal reasoning, Resolution 2019 is not in accordance

with a cardinal principle of the UN.

II. C. RESOLUTION 2019 IS NOT IN ACCORDANCE WITH ARTICLE 39 OF THE

UN CHARTER.

Article 39 is the single most important provision of the Charter, ( U.S. Secretary ofState, Report to the President on the Results of the San Francisco Conference (1945), at 90-91.)

it is the key to the broad powers of the Security Council under Chapter VII of theCharter. (Berld Martenczuk, The Security Council, the International Court and Judicial Review: WhatLessons from Lockerbie, 10 No. 3 EJIL(1999) 517, 534.)

Without a determination that a given situation poses either a threat to the peace or

constitutes a breach of the peace or act of aggression, the Council cannot take

enforcement measures under Chapter VII of the Charter, as it has done in the instant

case. This is borne out by both the authoritative commentaries on the Charter and

the practice of the Security Council itself. ( Berld Martenczuk, The Security Council, theInternational Court and Judicial Review: What Lessons from Lockerbie, 10 No. 3 EJIL(1999) 517, 534.)There is no investigation done on part of the Security Council


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2. In view of the war crimes and crimes against humanity that had occurred in

Nooba, the Security Council has enacted provisions under Chapter VII of the UN

Charter without prior investigation and totally based this decision on various

reporting agencies.

3. Therefore, Resolution 2019 is not in accordance with article 39 of the UN Charter.

II. D. RESOLUTION 2019 IS VOID AND WITHOUT ANY LEGAL EFFECT UPON

THE MEMBER STATES.

When the Security Council reaches a decision which is ultra vires,in the sense that a

procedural requirement contained in the Charter is clearly violated or ignored, then

the normal legal consequence would be that such a decision would be void and

without legal effect upon the Member States. ( D.M. Walker, Oxford Companion to Law(Oxford, ed. 1980) 1246. The doctrine of ultra vires and the consequences of such acts as being void iswidely recognized in numerous legal systems and can be considered to be a general principle of law .

V.Gowlland Debbas, The International Court and the Security Council, 88AJIL(1994) 643, 672.)4. In the instant case, the Security Council has not conducted any investigations

under article 34 of the UN Charter to determine whether there existed any threat

to the peace, breach of peace, or act of aggression in Nooba. Thus, Resolution

2019 is ultra vires; in the sense that a procedural requirement contained in the

Charter has been clearly ignored.

5. Therefore, the legal consequence is that Resolution 2019 is void and without

legal effect upon the Member States.


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2) Assuming involvement of Colonel Jingo Crackle in helping the HLF , hecannot be prosecuted as it was through the orders of the Kimatan army

the activities at the border were increased. These orders were the after

effects of the victory speech given by Lama Suki. The actions that colonel

Jingo Crackle would have taken would be authorized by the state and

therefore they are lawful as they have been carried out under due

authorization by the law of the land. By the doctrine of Immunity fromprosecution.

Thus the acts of indirect influence over the HLF as per the charges that are put

under Article 25(3)(a) of the Roman ICC statute would fall under the acts that

are authorized by the state and thus Colonel Jingo Crackle would be immune

from prosecution.

As we see Colonel Jingo Crackle has no direct command over the HLF, he cannot

be held responsible for each and every act as he did not have control of the

rebels.

3) the charges of war crimes do not hold against colonel Jingo Crackle as the

Colonel has no leadership over the rebels. He was not their commander.The HLF functioned under the Ledership of Lama Suki and therefore it is

lama suki who is responsible for the actions of the HLF.

4) Colonel Jingo Crackle is not the superior or the commander of HLF andtherefore cannot be held responsible for the attacks under Section 28 of

the Statute.


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The Prosecutor vs Lama Suki

Charges against Lama Suki do not constitute a cognizable case againsthumanity under the Statute.

Charge for incitement to commit genocide

Lama suki has not committed any offence. He did not incite anyone as given

under articl 25(3)(e) of the Roman ICC statute. His speech was misinterpreted.

He did say to get rid of the Hists but this statement was in context to discussion

of the unfruitful governance, of the previous government especially when it came

to deal with the problems caused by the HLF. When he said to get rid of the Hists

it was those Hists who were a part of the HLF. As here we can see that the HLF

actions have given rise to various cause of actions. It should be duly noted that in

the current scenario, the hists werent intentionally targeted; they were the ones

who initiated the atrocities. Lama Suki did his best to preserve law and order in

the Sutas.For incitement leading to genocide, the mens rea required for this crime lies in the

intent to directly prompt or provoke another to commit genocide. The person who is

inciting to commit genocide must have himself the specific intent to commit genocide.

Held in Prosecutor v. Akayesu, ICTR-96-4-T, 02/09/1998, para 560; William Schabas, Mugeserav. Minister of Citizenship and Immigration, 93 AJIL (1999) 529.

We know that Lama Suki never had such an intent and as per our argumentsmade above his reference to the HLF was misunderstood as a reference to allHists in common. He totally lacked intent to incite genocide.

Charge for commiting genocide

Similarly genocide did not take place. The most important element of the crime

of genocide is that of intention. The act must be committed by the offender with

the intention of specifically harming or causing hurt to the members of a religion,community or a gene pool. Here there is no question of intention or specific

targeting of a religion or a group as here we can clearly see that the action taken

by the armed forces was not an action but was a reaction to the atrocities

committed by the HLF. It was an effort to preserve law and order in the country

and also to preserve life and property.

As held in Prosecutor v. Sikir icaet al., (Case No. IT-95-8-T), para. 89 A Trial Chamber of

the ICTY in Si kirica observed that the group must be targeted, and not merely

individuals within it. The court added that this is the meaning to be ascribed to the

words as suchin the definition of genocide.


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As held in Prosecutor v. Kayishema and Ruzindana, (Case No. ICTR-95-1-T),Judgment, 21/05/1999, para. 94. And According to the Trial Chamber of the ICTY,

a policy must exist to commit these acts: Prosecutor v. Tadic (Case No. IT-94-1-

T), Opinion and Judgment, 07/05/1997, para. 655.

Genocide is an organised and not a spontaneous crime. A Trial Chamber of the ICTR

in Kayishema and Ruzindana observed that it is not easy to carry out genocide

without a plan or organization. Thus in the given scenario, there was lack of

systematic plan as well as in intention, the military troops acted with a view to

reestablish government control in the Sutas.

Charge for committing war crimes

Lama Suki should not be charged under Article 8(2)(a)(ii)&(vii) of the Roman

ICC statute. These sections relate to torture, inhuman treatment, unlawful

deportation and unlawful confinement.

We know about the scenario in Nooba when Lama Suki was forced to deploy the

military to establish peace. There was no law and order therefore emergency

orders were given to the military in order to restore the peace. Due to the flow of

weapons to the HLF, this led to greater damage and therefore the military had to

take measures to restrict the damage and bring the area back into control.

Ciivil areas were harmed due to use of heavy explosives but this was not with the

intent to harm the civil population but was due to mistakes or technical flaws.

During the US air campaign in Afghanistan in 2001, the most advanced equipment

was used. However, bombing mistakes were reported on each single day of the

campaign (including the mistaken bombing of a Red Cross complex in Kabul on two

separate occasions). (S.D. Murphy Contemporary Practice of the US Relating to InternationalLaw, 96 AJIL (2002)237, 247.)

Accidents are beyond control by human beings, so are weapon malfunctions.

Malfunctions of a particular type of weapon in several cases resulting in

unanticipated losses can be the basis to conclude that the said weaponmalfunctioned in a given case. ( W.J. Fenrick The Law Applicable to Targeting andProportionality after Operation Allied Force: A View from the outside, 3 YIHL (2000) 53, 77. )

6. Therefore, the technical flaw in the bomb release mechanism of the bomber

resulting in bombing mistakes cannot attach any stigma of a direct attack.

It must be further noted that it is stated that the support of the government was

eroding as the government itelf was not able to protect its citizens from its own

armies. This added to the anarchy. The various illegal confinements, rapes and

other killings and heinous crimes occurred not due to Lama Suki as Lama sukihimself had lost control over the military.


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It is also said that there were reports, which stated that prohibited weapons

were used but there is no conclusive proof regarding the same. The Nooban

military didnt use any type of prohibited weapons but the possibility of the use

of these type of weapons by the HLF cannot be denied.

Lama Suki was also charged under Article 28 of the statute. A militarycommander is only liable if he failed to take reasonable measures or if he turned

a blind eye towards the operations. In the present case we can see that all the

necessary measures were taken by Lama Suki. But it is specifically mentioned

that the government was unable to protect its people from its own troops. The

government though tried to exert control and curtail the number of atrocities; it

was unable to do so. Thus we can say that the government had ensured that

reasonable care is being taken while deploying and controlling the military but

due to circumstances it lost the control of the military which led to such

atrocities. This loss of control might be due to he military heads not following the

orders of the superiors. This is a subject of internal enquiry and investigation.

But it can be said without doubt that it would be unjust to prosecute Lama Suki

for these atrocities.

Head of State immunity

Taken from the The European Journal of International Law Vol. 21 no. 4

A The Scope of Immunity Ratione Personae: Immunity from Criminal Process for

International Crimes

It is clear that senior officials who are accorded immunity ratione personae will be hindered in the

exercise of their international functions if they are arrested and detained whilst in a foreign state.

For this reason, this type of immunity, where applicable, is commonly regarded as prohibiting

absolutely the exercise of criminal jurisdiction by states. The absolute nature of the immunity

ratione personae means that it prohibits the exercise of criminal jurisdiction not only in cases

involving the acts of these individuals in their official capacity but also in cases involving private

acts.(Arrest Warrant case,supra note 9, at para. 54; Fox, supra note 1, at 694. See also the treaty provisions cited

supra at note 5. )Also, the rationale for the immunity means that it applies whether or not the act in

question was done at a time when the official was in office or before entry to office. (Arrest Warrant

case,supra note 9, at paras 5455. ) What is important is not the nature of the alleged activity or when it

was carried out, but rather whether the legal process invoked by the foreign state seeks to subject

the official to a constraining act of authority at the time when the official was entitled to the im-

munity. Thus, attempts to arrest or prosecute these officials would be a violation of the immunity

whilst invitations by a foreign state for the official to testify or provide information voluntarily

would not.( Ibid., at paras 55, 7071; Case Concerning Certain Questions of Mutual Assistance in Criminal Matters

(Djibouti v. France), ICJ judgment of 4 June 2008, at para. 170 )However, since this type of immunity isconferred, at least in part, in order to permit free exercise by the official of his or her international

functions, the immunity exists for only as long as the person is in office.

In the Arrest Warrant case, the ICJ held that Foreign Ministers are entitled to immunity ratione

personae, and further held that the absolute nature of the immunity from criminal process accorded

to a serving Foreign Minister ratione personae subsists even when it is alleged that he has

committed an international crime and applies even when the Foreign Minister is abroad on a

private visit.(Arrest Warrant case,supra note 9, at para. 55. )The Court stated:It has been unable to deduce . . . that there exists under customary international law any form of exception to therule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs,where they are suspected of having committed war crimes or crimes against humanity. 14

The principle that immunity ratione personae extends even to cases involving allegations of

international crimes must be taken as applying to all those serving state officials and diplomats

possessing this type of immunity.15 Indeed the principle is uncontroversial and has been widely

applied by national courts in relevant cases.(Ghaddafi case, Arrt no. 1414 (2001), 125 ILR 456 (France: Cour deCassation); Castro case (Spain: Audiencia Nacional, 1999), cited by Cassese,supra note 15, at 272 n. 20; Re Sharon andYaron, 42 ILM (2003) 596 (Belgium: Cour de Cassation); R. v. Bow Street Stipendiary Magistrate and others)

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Arguments Accused Defense