NUREMBERG MOOT COURT COMPETITION

The Office of the Prosecutor

Team Number: 4

Year: 2015

Total Word Count: 3.494

SUMMARY OF ARGUMENTS

I. PROCEDURAL MATTERS

A. THE PROSECUTION ACTED LEGITIMATELY BY INITIATING A PRELIMINARY EXAMINATION

A.1 – THE PRECONDITIONS TO THE EXERCISE OF JURISDICTION WERE MET

A.2 - THE TWOFOLD REQUIREMENT IN ARTICLE 17 WAS RESPECTED

A.2.1 - COMPLEMENTARITY (ARTICLE 17(1)(A) TO (C))

A.2.2 - GRAVITY (ARTICLE 17(1)(D))

B. THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION OVER THE CASE

B.1 - JURISDICTION RATIONE TEMPORIS AND THE WITHDRAWAL (ART. 127, ROME STATUTE)

B.1.1 - THERE WAS A MATTER “UNDER CONSIDERATION BY THE COURT”

B.1.2 – ICC HAS JURISDICTION OVER BOTH CRIMES

II. MATERIAL ELEMENTS OF THE CRIMES AND FORMS OF LIABILITY

A. MS. MINSA FACILITATED THE COMMISSION OF GENOCIDE

A.1 - ELEMENTS OF THE CRIME (ARTICLE 6(A))

A.1.1 - OBJECTIVE ELEMENTS

A.1.2 - SUBJECTIVE ELEMENTS

A.2 - FORM OF LIABILITY (ARTICLE 25(3)(B))

A.3 - SELF-DEFENCE AND DURESS AS NON-EXONERATING CIRCUMSTANCES (ARTICLE 31(1)(C)

AND (D)).

B. MS. MINSA CONTRIBUTED TO THE COMMISSION OF A CRIME AGAINST

HUMANITY

B.1 – ELEMENTS OF THE CRIME

B.1.1 - OBJECTIVE ELEMENTS: THERE WAS A WIDESPREAD AND SYSTEMATIC ATTACK

B.1.2 - OBJECTIVE ELEMENT: OTHER INHUMANE ACTS

B.1.2 - SUBJECTIVE ELEMENTS

B.2 - FORM OF LIABILITY (ARTICLE 25(3)(D))

B.3 - THE CODE OF MEDICAL ETHICS AS A NON-EXONERATING CIRCUMSTANCE

III. GROUNDS FOR CONFIRMATION OF CHARGES

A. THE EVIDENTIARY THRESHOLD FROM ARTICLE 61(7) IS MET

B. THE REQUIREMENTS FROM ARTICLE 17 ARE FILLED

IV. CONCLUDING SUBMISSIONS

INTRODUCTION

“The dead cannot cry out for justice. It is a duty of the living to do so

for them.”

Lois McMaster Bujold

Pursuant to article 61(7) of the Rome Statute (Statute), the Chamber shall, on the

confirmation of charges procedural stage, “determine whether there is sufficient evidence to

establish substantial grounds to believe that the person committed each of the crimes charged”. We

respectfully submit that, at this procedural moment, this evidentiary standard is met.

The Prosecution offers concrete and tangible proof demonstrating a clear line of reasoning

underpinning is specific allegations1 against Ms. Minsa, so that the charges presented must be

confirmed, in accordance with article 61(7)(a) Statute.

To that effect, we submit that (i) the Prosecution did not act with abuse of authority by

initiating investigations proprio motu, and, thus (ii) the International Criminal Court has jurisdiction

over the case, independently on the withdrawal. Furthermore, there are strong grounds for believing

that the defendant is criminally liable (iii) for facilitating the commission of Genocide and (iv) for

contributing to the commission of a Crime Against Humanity.

1 See ICC-01/04-01/06-803-tEN, The Prosecutor v. Thomas Lubanga Dyilo, PTC I, “Decision on the Confirmation of Charges”, 29 January 2007, paras. 38-9; ICC-01/04-01/07-717, The Prosecutor v. Germain Katanga, PTC I, “Decision on the Confirmation of Charges”, 1 October 2008, paras. 62-5.

I. PROCEDURAL MATTERS

A. THE PROSECUTION ACTED LEGITIMATELY BY INITIATING A PRELIMINARY EXAMINATION

The Prosecution decided to open an investigation under its proprio motu powers following the

statutory parameters since, after having received, analyzed and filtered information from different

sources, it concluded (i) a potential case could arise under the ICC’s jurisdiction and (ii) the case

would be admissible.

A.1 – THE PRECONDITIONS TO THE EXERCISE OF JURISDICTION WERE MET

The information on crimes allegedly committed in Arkania, before November 2010, indicated

potential cases that could fall within the jurisdiction of the Court. The jurisdiction ratione temporis

and ratione loci existed since Arkania was a State member and the withdrawal had not operated

effects while the crimes were being committed.

Furthermore, regarding to the jurisdiction ratione materiae, two potential crimes could be

inferred from the situation: (i) persecution against the civilian population (article 7(1)(h) Statute)

and (ii) incitement to Genocide (article 25(3)(e) Statute).

Firstly, in October 2010, a State policy was designed at the highest level of Arkania State

machinery and aimed at terminating any civilian resistance against the regime just established in

that State. Thus, the information received indicated that a policy of systematic violence against the

civilian population was being perpetrated by the Revolutionary Arkanian Party (RAP), providing a

reasonable conclusion2 that crime of “persecution” could arise in front of the Court.

The civilian population, on political grounds, was the primary object of the attack, which was

perpetrated by an organizational policy3 that started controlling the Government of Arkania.

Furthermore, there was a widespread attack, considering that the persecution against undesirable

political elements achieved a national level.

Even, the discourses that RAP was perpetrating could indicate a “direct and public” call for

genocide, since members of RAP publicly reiterated its political program, on social media and

television, which included the extermination of the Capu leaders. RAP did not engage in a vague

suggestion4, but in a direct appeal specifically provoking other people to engage in the criminal act.

2 See ICC-01/09-19, 31/03/2010, para. 33. 3 See article 7(3) of the Elements of Crimes. 4 ICTR, AC, The Prosecutor v. Ferdinand Nahimana, Case No. ICTR-99-52-A, para. 692.

Even the discourses perpetrated by Mr. Lona could indicate a potential case of this crime, since they

created a violent atmosphere favorable to violence against the Capu5.

The atrocities committed against the civilian population, specially the Capu, were recognized

by the Security Council of the United Nations through resolution 7568(2010) only one month after

the preliminary examinations proprio motu had started, which reinforces the idea that the situation

was serious enough and concerned the international interest.

A.2 - THE TWOFOLD REQUIREMENT IN ARTICLE 17 WAS RESPECTED

A.2.1 - COMPLEMENTARITY (ARTICLE 17(1)(A) TO (C))

Furthermore, in November 2010, there were no elements that indicated that Arkania was

prosecuting or investigating the potential cases6 in concern. There were no ongoing investigations

or prosecutions, and nothing indicated they ever happened in the past. Thus, the analysis of inability

and unwillingness does not apply.7

A.2.2 - GRAVITY (ARTICLE 17(1)(D))

As stipulated in Regulation 29(2) of the Regulations of the Office, the non- exhaustive factors

that guide the Office’s assessment of gravity include the scale, nature, manner of commission of the

crimes, and their impact8. There was an attack perpetrated by the State against a religious group

which constituted 29% of that population, added to a national persecution against the civilian

population, which indicates not a peripheral9 potential case, but sufficiently serious situation to

justify further action by the Court.

Lastly, there elements indicated that the commencement of formal preliminary examinations

would be on the interest of justice10.

5 See ICTY, TC I, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, para. 557. 6 ICC-01/09-19, 31/03/2010, para. 41. 7 See AC, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, ICC-01/04-01/07-1497, para. 78. 8 See Prosecutor v. Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09- 243-Red, 8 February 2010, paras. 31; ICC-01/09-19-Corr, para. 188; ICC-02/11-14, paras. 203-204. 9 See No.: ICC-02/11-14, 03/10/2011, para. 201 and No.: ICC-01/09-19, 31/03/2010, para. 51. 10 No.: ICC-01/09-19, 31/03/2010, para. 63 and, No.: ICC-02/11-14, 03/10/2011, paras. 207 e 208.

B. THE INTERNATIONAL CRIMINAL COURT HAS JURISDICTION OVER THE CASE

Considering that Ms. Minsa is a citizen of Arkania and that the crimes committed by the

defendant fall within the jurisdiction of the Court, ICC has jurisdiction ratione loci/personae and

ratione materiae over the case.

B.1 - JURISDICTION RATIONE TEMPORIS AND THE WITHDRAWAL (ART. 127 ROME STATUTE)

The Court was already analyzing the matter in Arkania before the withdrawal could operate

any effects, since the Prosecution had started legitimate preliminary examinations. Thus, ICC has

jurisdiction ratione temporis over both crimes committed in Arkania.

B.1.1 - THERE WAS A MATTER “UNDER CONSIDERATION BY THE COURT”

In accordance with article 34 Statute, the Office of the Prosecution (“OTP”) is an organ of the

Court, as much as the Appeals, Trial or Pre-Trial Divisions. The term “Court”, used in article 127.2,

that provides the preservation of ICC’s jurisdiction over a matter, must encompass even acts taken

solely by the Prosecution, as a preliminary examination.

Such an interpretation comprises the spirit of the Statute's preamble. The determination to end

the impunity of atrocities is the ideal that must guide the application of article 127.2 of the Statute.

The importance of sovereignty cannot be played by criminals as a tool against the administration of

justice. By interpreting "the Court" as the whole criminal international system, the finality of this

article to shield ICC's jurisdiction from maliciously motivated withdrawals will be achieved.

B.1.2 - ICC HAS JURISDICTION OVER BOTH CRIMES

Even considering that the crime against humanity happened after the withdrawal had already

operated effects in the territory of Arkania, we respectfully submit it is covered by the jurisdiction

ratione temporis.

As we can infer from article 127(2) Statute, the withdrawal will not prejudice the “continued

consideration” of a matter. There is a sufficient link between the crimes committed at the State

Brain Disorder Research Center (SBDRC) and the matters which were already being considered by

the Prosecution before September 2011, namely, the creation of the Presidential Special Force

(PSF) and its deployment to “cleanse” the society of disabled persons. There is a logical progression

of violence unleashed by the same political party against the civilian population in general, which

lead to the creation of the SBDRC.

II. MATERIAL ELEMENTS OF THE CRIMES AND CRIMINAL RESPONSIBILITY

A. MS. MINSA FACILITATED THE COMMISSION OF GENOCIDE

A.1 - ELEMENTS OF THE CRIME (ARTICLE 6(A))

A.1.1 - OBJECTIVE ELEMENTS

There are substantial grounds to believe that the gas vans were used, in the MTF, to murder

members of a particular religious group, chosen by reason of their membership to this protective

group11, employing gas inhalation, in accordance with article 6(a) Statute.

A.1.2 - SUBJECTIVE ELEMENTS

Ms. Minsa not only knew and intended to contribute to the murder members of the Capu

(since she is not covered by duress neither self-defense), but, still, aimed to exterminate this group.

The special intent can be inferred (i) since she ratified an extremely violent document calling for the

extermination of the leading members of the Capu and (ii) from the facts12 that she kept being a

member of the RAP while it was promoting a public incitement and reiterating on several occasions

the genocidal idea of the political program.

A.2 - FORM OF LIABILITY (ARTICLE 25(3)(C))

Ms. Minsa did abet with the commission of genocide by providing the means for its

commission, being responsible for the functional efficiency of the gases and its distribution across

the country. Moreover, Ms. Minsa shared the purpose of this group, as already addressed.

A.3 - SELF-DEFENCE AND DURESS AS NON-EXONERATING CIRCUMSTANCES (ARTICLE 31(1)(C)

AND (D)).

In this regard, we respectfully submit that neither self defense nor duress can be alleged in

order to exonerate Ms. Minsa’s criminal liability.

Regarding to the self-defense allegation, the lack of identity between the victims and the

supposed aggressor precludes Ms. Minsa from alleging this exonerating circumstance13.

Even, the defendant did not act compelled by duress. Pursuant to article 31(1)(d) Statute, this

reasoning can be divided in three different stages.

11 See ICTY, TC, Prosecutor v. Stakic, 31/07/2003, para 521; ICTY, TC, Prosecutor v. Kristic, 02/08/2001, para. 561; ICTY, TC, Prosecutor v. Jesilic, 14/12/1999, para. 67. 12 ICTR, TC I, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, para. 523. 13 See Kai Ambos, “Treatise on International Criminal Law”, Volume I: Foundations and General Part, page 338.

Firstly, there was no objective, imminent or continuing threat to Ms. Minsa’s life. She was a

member of RAP and never represented any of its group’s targets. The absence of a real threat to her

life, besides the fact that she had an important role in the MTF, is reinforced by the finding that

when she had misunderstandings with the head of MTF, she was not murdered, but merely

relocated to another work center.

Thus, there is no evidence of a present threat exercising an overwhelming pressure14 on Ms.

Minsa. The facts presented to this Chamber absolutely indicate the possibility of a moral choice15

for the defendant at this situation.

We additionally submit that, in discordance with article 31(1)(d) Statute, Ms. Minsa did not

react “necessarily” and “reasonably” in order to avoid the supposed threat. In Prosecutor v.

Erdemovic, ICTY’s Appeals Chamber concluded that duress can never be alleged by a soldier as an

exonerating circumstance where innocent lives are at stake16. Even though Ms. Minsa is a civilian,

this reasoning applies to her situation, since even the lowest requirement for resistance does not

legitimate the commission of genocide for almost one year continually.

Thirdly and lastly, the defense of duress is not available where the party seeking to invoke it

was, herself, responsible for the existence or execution of such order. This submission is even

clearer in the french version Statute of article 31(1)(d)(ii): “circonstances independantes de sa

volonté”. Ms. Minsa decided to joint and stay at a violent military group17, so that she could foresee

the order to commit an illegal act. As held by IMT, on United States v. Ohlendorf, “One who

embarks on a criminal enterprise of obvious magnitude is expected to anticipate what the enterprise

will logically lead to”18.

14 Id, page 358. 15 See Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits, 62 S. CAL. L. REV. 1331, 1339 (1989). 16 ICTY, AC, Prosecutor v. Erdemovic, Case No. IT-96-22A, para. 19. 17 See Kai Ambos, “Treatise on International Criminal Law”, Volume I: Foundations and General Part, page 358. 18 IMT, United States v. Ohlendorf, page 481.

B. MS. MINSA CONTRIBUTED TO THE COMMISSION OF A CRIME AGAINST HUMANITY

B.1 – ELEMENTS OF THE CRIME

B.1.1– THERE WAS A WIDESPREAD AND SYSTEMATIC ATTACK

The attack was systematic because it had a specific target, within the civilian population, and,

thus, the individuals were not randomly selected19. Furthermore, the attack was widespread because

there was a “multiple commission”20 of the atrocities. Until the moment, there are 320 known cases

of human tests in Arkania, which resulted in the death of 80 people. Lastly, it is important to

highlight that those requisites (“widespread” or “systematic”) are disjunctive21 even though both

requisites are present at this case.

B.1.2 - OBJECTIVE ELEMENT: OTHER INHUMANE ACTS

Ms. Minsa, by participating on the activities of the State Brain Disorder Research Center,

which included drug-epileptics induction without subsequent treatment, resulting in death on the

proportion of 25%, inflicted great suffering and serious injury to body and mental health by means

of inhumane acts, being part of a greater attack.

B.1.1 - SUBJECTIVE ELEMENTS

Ms. Minsa’s contribution was intentional and, as held by ICC on Prosecutor v. Callixte

Mbarushimana22, the form of liability in which she incurs only requires the knowing of the group-

perpetrator’s intentions, and not the sharing.

B.2 – CO-PERPETRATION

B.2.1 - THE RETRACTION OF THE FORM OF LIABILITY ON ARTICLE 25(3)(A)

The elements of proof that were obtained since January 2015 and the Confirmation of

Charges audience lead the Prosecution to withdraw the form of liability contained on article

25(3)(a) Statute. The Prosecution does not possess sufficient elements of proof, until this moment,

to establish substantial grounds to believe Ms. Minsa had joint control over the crime and was

essential in order to frustrate its commission23.

19 ICTY, Trial Chamber II, Prosecutor v. Fatmir Limaj, 30/11/2005, Case No.: IT-03-66-T, para. 218. 20 See Elements of Crimes, article 7(3). 21 See No.: ICC-01/09-19, 31/03/2010, para. 94. 22 PTC I, Decision on the confirmation of charges in the case of The Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10, 16/12/2011, para 289. 23 See No. ICC-01/04-01/06-803-tEN, 14/05/2007, para. 342.

B.2.2. MS. MINSA INCURRED ON THE FORM OF LIABILITY OF ARTICLE 25(3)(D)

On the other hand, the contribution of Ms. Minsa can be perfectly filled by the form of

liability contained in article 25(3)(d) Statute. This form of liability entails three objective and two

subjective elements, as held by the Court on the case Mbarushimana24.

Regarding to the objective requirements, we observe that (i) a crime within the jurisdiction of

the Court was being committed, as already advanced; (ii) the criminal group carried out a common

purpose and (iii) Ms. Minsa contributed to the crime in a significant way, other than those set out in

article 25(3)(a) to (c).

In order to analyze the level of contribution in this issue, ICC held that there are standards that

can be observed25. Ms. Minsa complies with various of those standards, since (i) she sustained her

contribution for a long time (more specifically, for almost for 03 years) even knowing about the

effects of those experiments; (ii) she did no efforts to prevent the criminal activity; (iii) and, most

importantly, she played an essential role with respect to the scope of the crimes committed. This

because the objective to be achieve with those human experiments was to provide breakthrough

insights on the medicines, and, for that objective, her contribution was very important, since she had

the necessary expertise.

The analysis of the level of contribution, thus, has the aim to prevent the Court from judging

very minimum levels of assistance on those crimes26, which is absolutely not the case for Ms.

Minsa. Moreover, ICC concluded that it is possible that the contributions under article 25(3)(d)

happen after the crimes have in fact have occurred, the exact context of this case, “so long as the

contribution had been agreed upon by the relevant group (...) and the defendant”27.

Furthermore, as already explored, the two subjective elements required for this form of

liability are filled. (i) The contribution was intentional and (ii) she knew about RAP’s criminal

intentions, in accordance with article 25(3)(d)(ii).

B.3 - THE CODE OF MEDICAL ETHICS AS A NON-EXONERATING CIRCUMSTANCE

Lastly, Ms. Minsa cannot allege the existence of a Code of Medical Ethics as an exonerating

circumstance. It is important to establish that the Principles that guide medical research involving

human subjects, which were firstly established on the post-Nuremberg era, have turned into

24 PTC I, Decision on the confirmation of charges in the case of The Prosecutor v. Callixte Mbarushimana, No. ICC-01/04-01/10, 16/12/2011, para 269. 25 No. ICC-01/04-01/10, 16/12/2011, para 248. 26 No. ICC-01/04-01/10, 16/12/2011, para 277. 27 No. ICC-01/04-01/10, 16/12/2011, para. 286-7.

customary law28. After more than 50 years of progress, these rules are set as: i) a general practice ii)

accepted as law by States.

The WMA's Declaration of Helsinki (DoH), has been embodied in national and international

instruments, laws, regulations and other non-binding texts of countries like Australia, China,

Germany, Israel, Japan, New Zealand, Norway, Uganda and many others29.

The experiments were against the Principles on several points. Firstly, by targeting people

with mental and physical disabilities30 because they were considered inferior. Secondly, it is not

clear that there was consent or authorization of the responsible31. Thirdly, the subjects were left

without treatment to the symptoms provoked and the research promoted a 25% death rate. This

frontally contradicts medical responsibility to minimize possible harm to the environment32.

28 UN, Statute of the International Court of Justice, Article 38. 29 HUMAN, Delon and FLUSS, Sev. The World Medical Association's Declaration of Helsinki: Historical and Contemporary Perspectives. 30 Paragraph 20 of DoH. 31 Convention on Human Rights and Biomedicine, article 6. 32 DoH, Paragraphs 8 and 11.

III. GROUNDS FOR CONFIRMATION OF CHARGES

A. THE REQUIREMENTS FROM ARTICLE 17 ARE FILLED

The facts indicate that, until the present moment, the State of Arkania or any other State that

would normally exercise jurisdiction over the facts are not investigating neither prosecuting these

facts.

Furthermore, the gravity requirement concerning to the admissibility of charges against Ms.

Minsa is filled in this case. As held by the Court, there is no limit on the kinds of defendant who

meet this threshold and, thus, grave cases are not restricted to crimes committed by senior leaders33.

B. THE EVIDENTIARY THRESHOLD FROM ARTICLE 61(7) IS MET

With basis on all the exposed, we submit there is consistent basis to meet the evidentiary

burden of the “substantial grounds to believe”, since the Prosecution has demonstrated a clear line

of reasoning underpinning each allegation and as presented concrete and tangible proof34.

Consequently, and considering the ICC has jurisdiction over this case, the charges presented against

the defendant must be confirmed, so that the evidences can be deeply analyzed by the Chamber on

Trial.

33 See, Case No. ICC-01/04-01/06, 10/02/2006 and annex I, paras.73–79; Case No. ICC-02/05-02/09, 08/02/2010, paras. 28–34. Case No. ICC-01/09, 31/03/2010, paras. 55–62. 34 See No.: ICC-01/04-02/06, 09/06/2014, para 9; ICC- 01/05-01/08-424, 15/06/2009, para. 29; ICC-01/09-02/11-382-Red, 23/01/2012, para. 52; ICC-02/11-01/11-432, 03/06/2013, para. 17.

IV. CONCLUDING SUBMISSIONS

Wherefore in light of the questions presented, arguments advanced and authorities cited, the

Prosecution respectfully requests this Court to confirm, in accordance with article 61(7)(a) Statute,

the following counts against Ms. Minsa:

I. Facilitation of the commission genocide under articles 6(a) and 35(3)(c) Statute;

II. Contribution to the commission of a crime against humanity under articles 7(1)(k) and

25(3)(d) Statute;

On Behalf of the Prosecution

NUREMBERG MOOT COURT COMPETITION

The Defense Counsel

Team Number: 4

Year: 2015

Total Word Count: 3.497

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SUMMARY OF ARGUMENTS I. PROCEDURAL MATTERS A. THE LACK OF JURISDICTION DUE TO THE WITHDRAWAL A.1 - THE ABSENCE OF A “MATTER UNDER THIS COURT’S APPRECIATION” (ARTICLE 127(2)

STATUTE) UNTIL SEPTEMBER 2011 A.2 - THERE IS NO LINK BETWEEN THE CHARGES OF CRIMES AGAINST HUMANITY AND THE

COMMENCEMENT OF THE INVESTIGATION

B. PROSECUTOR’S ABUSE OF AUTHORITY IN PROPRIO MOTU INVESTIGATION B.1 - THERE WERE NO REASONABLE BASIS TO COMMENCE INVESTIGATIONS IN DISCORDANCE

WITH 53(1)(A) STATUTE B.2 - THE PROPRIO MOTU INVESTIGATION DID NOT RESPECT THE PRINCIPLE OF

COMPLEMENTARITY (ARTICLES 17(1)(A) AND 53(1)(B) STATUTE) B.4 - CONSEQUENCES OF THE ABUSE OF AUTHORITY AND THE IMPOSSIBILITY OF ADMITTING THE

EVIDENCES OBTAINED IN ACCORDANCE TO ARTICLE 69(7)(B) STATUTE II. THE LACK OF SUBSTANTIAL GROUNDS TO CONFIRM CHARGES AGAINST MS. MINSA A. THE ABSENCE OF GROUNDS FOR GENOCIDE A.1- DURESS AS A GROUND FOR EXCLUDING CRIMINAL RESPONSIBILITY

B. THE ABSENCE OF GROUNDS FOR CRIMES AGAINST HUMANITY B.1 - THE COMPLIANCE OF THE CONDUCTS WITH THE CODE OF MEDICAL ETHICS B.2 - THE INADEQUACY OF THE CRIMINAL LIABILITY UNDER ARTICLE 25(3)(A) STATUTE B.3 - THE INADEQUACY OF THE CRIMINAL LIABILITY UNDER ARTICLE 25(3)(D) STATUTE III. GROUNDS FOR ADMISSIBILITY OF CHARGES A. THE LACK OF THE GRAVITY REQUISITE IN THE CASE UNDER ARTICLE 17(1)(D) STATUTE

IV. SUBMISSIONS

3

INTRODUCTION

“It is better to risk saving a guilty person than to condemn an innocent one.”

(Voltaire)

The present case shows up as a real emblematic situation, by which we can analyze series of

procedural irregularities taken by the Prosecutor during the beginning of the investigations that lead

us to this case. Besides that, we shall observe that Ms. Minsa was just an ordinary person, victim of

a bigger plain perpetrated by RAP and its main leaders. Thus, the present case must not be admitted

by this Court in respect with art. 61(7)(b) Statute.

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I. PROCEDURAL MATTERS

A. THE LACK OF JURISDICTION DUE TO THE WITHDRAWAL

A.1 – THE ABSENCE OF A “MATTER UNDER THIS COURT’S APPRECIATION” (ARTICLE 127(2)

STATUTE) UNTIL SEPTEMBER 2011

After the presidential elections, the State of Arkania decided on withdrawing its membership

from the Rome Statute (Statute). Before the vacancy period of ICC’s jurisdiction, there was no

matter under appreciation of the Court, and, thus, the retaining of jurisdiction provided in art.

127(2) Statute does not apply to this case.

The facts indicate that, before September 2011, the only procedural step related to ICC was

taken solely by the Prosecution, which, acting with abuse of authority, decided to commence

preliminary examinations on November 2010. At this procedural stage, the Office of the Prosecutor

(OTP) does not even enjoy full investigative powers, but merely gathers more additional

information regarding to a situation1.

Given that the Chamber had no contact with that matter, it is impossible to argue that there

was a matter “under consideration by the Court”. The decision on commencing preliminary

examinations is not even subjected to the Chamber’s review, and such a superficial contact with the

facts, which is not even taken by the Decision-Making Organ of ICC, cannot be considered to fill

the requirement from article 127.2 Hence, this Court has no jurisdiction over the present case.

A.2 - THERE IS NO LINK BETWEEN THE CHARGES OF CRIMES AGAINST HUMANITY AND THE

COMMENCEMENT OF THE INVESTIGATION

Even if it was considered that there was a matter under consideration by the Court at the time,

such matter would not encompass any crime against humanity.

The investigation started in concern to eventual attacks2 perpetrated against the Capu

community, which is the only group that could be allegedly targeted before November 2010. The

supposed crime on the State Brain Disorder Research Center (SBDRC) was placed against a

different group, for different purposes. Therefore, it would not be sufficiently linked3 with the

situation that gave rise to the beginning of the investigation.

1 Policy Paper on Preliminary Examinations, ICC-OTP November 2013, para. 12. 2 See Pre-Trial Chamber III, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Côte D’Ivoire, No.: ICC-02/11-14, 03/10/2011, para. 179. 3 See Decision on the Prosecutor's Application for a Warrant of Arrest against Callixte Mbarushimana, 28/09/2010, ICC-01/04-01/10-1.

5

B. PROSECUTOR’S ABUSE OF AUTHORITY IN PRELIMINARY EXAMINATIONS

The Prosecutor did not observe the legal framework for the commencement of a preliminary

examination, contained in article 53(1) Statute4.

Furthermore, the facts indicate that between November 2010 and January 2015, the

Prosecution did not submit a request for authorization for the commencement of an investigation5,

with basis on the “reasonable basis to proceed” standard.

The lack of authorization for the commencement of the investigation is an omission that

damages the entire procedure and specially the credibility of the evidences obtained by its means6.

B.1 – THERE WERE NO REASONABLE BASIS TO COMMENCE INVESTIGATIONS IN DISCORDANCE

WITH 53(1)(A) STATUTE

In November 2010, in Arkania, there was no “potential case”7 of any crime within this Court's

jurisdiction.

The political rivalry developed after the presidential elections did not indicate sufficient

elements to infer that any of the crimes listed in the article 5 Statute would be potentially

committed. Judge Hans-Peter Kaul, in its dissent vote in the Decision on the Authorization of an

Investigation into the Situation in the Republic of Kenya8, emphasized the difference between

“international crime of concern to the international community as whole”, for which ICC is the

appropriate forum and the “common crimes, albeit of serious nature”, that must be prosecuted by

the national systems.

While situation in Kenya, also shaped after elections, had already caused the death of at least

a thousand of persons, followed by the physical injury of more than 3,500 persons approximately

350,000 persons displaced9, in Arkania the situation was limited to speeches related to an economic

crisis and civil protests with no injuries. Therefore, the situation, in November 2010, did not

indicate a potential case of interest of this Court.

4 ICC-OTP November 2013, para. 5. 5 See article 15(4) Statute and Rule 48. 6 See article 69(7)(b) Statute. 7 No.: ICC-02/11-14, 03/10/2011, para. 24 and No.: ICC-01/09-19, 31/03/2010, para. 27. 8 ICC-01/09-19, Dissenting Opinion of Judge Hans-Peter Kaul, 31/03/2010, para. 8. 9 ICC-01/09-19, para. 131.

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B.2 - THE PROSECUTION DID NOT RESPECT THE PRINCIPLE OF COMPLEMENTARITY (ARTICLES

17(1)(A) AND 53(1)(B) STATUTE) AND THE SITUATION LACKED ON GRAVITY

Apart from the lack of jurisdiction and reasonable basis, article 53(1)(b) was disregarded, as

the investigation did not consider the issues of admissibility under article 17 Statute.

The investigation started merely one month after the civilian hostilities took place, which

impeded Arkania from proceeding with its own investigations. Comparatively, the proprio motu

investigation on the situation of Kenya started only on 31 March 2010, while the conducts happened

from June 2005 to November 200910. The inaction of Kenya was certain, as almost five years have

passed from the beginning of the occurrences and the commencement of the investigations. This is

not the case for Arkania.

Moreover, the Prosecutor did not notify the State of Arkania about the beginning of the

investigation, in discordance to article 18 Statute. Thus, as the investigation in the present case was

premature and unmotivated, it was impossible to determine eventual inaction of Arkania on

investigating the situation.

B.3 - THE SITUATION LACKED ON GRAVITY UNDER ARTICLE 17(1)(D).

Even if the Chamber considers there is a potential case for any crime under the jurisdiction of

this Court, the “quantitative and qualitative” requisites11 under article 17(1)(d) Statute, which

concerns to the sufficient gravity of the situation, were not fulfilled. At November 2010, there was

not a sufficient context of violence against neither the Capu, nor the civilian community. The

complete lack of casualties and physical aggression, before November 2010, indicate a case that

would be peripheral12 in front of the Court.

B.4 - THE IMPOSSIBILITY OF ADMITTING THE EVIDENCES OBTAINED IN ACCORDANCE TO

ARTICLE 69(7)(B) STATUTE

As a consequence of the abuse of authority, the investigation as a whole is compromised. The

provisions stipulated in order to restrict the Prosecutor’s investigative powers are not merely

concern of procedure. By ratifying the Statute, Arkania agreed on its submission to the jurisdiction

of ICC whereas the rules and regulations set by the Statute were respected.

10 ICC-01/09-19, para. 211. 11 PTC I, Decision on the Confirmation of Charges, No.: ICC-02/05-02/09-243-Red, 08/02/2010, para. 31. 12 See No.: ICC-02/11-14, 03/10/2011, para. 201 and No.: ICC-01/09-19, 31/03/2010, para. 51.

7

Thus, the evidences presented to support this case must not be admitted by this Court, with

respect to the article 69(7)(b) Statute, since they were obtained with by means of the violation of

this Statute and compromise the very integrity of this proceeding.

8

II. THE LACK OF SUBSTANTIAL GROUNDS TO CONFIRM CHARGES AGAINST MS. MINSA

A. THE ABSENCE OF GROUNDS FOR GENOCIDE

The prerequisites for the commission of genocide were not met, as it will be demonstrated.

Ms. Minsa was also a potential victim of the Revolutionary Arkanian Party (RAP) hostilities and

cannot be held liable for its crimes.

Respectfully, this Defense withdraws from the “self-defense” submission, since there is no

identity between the victims and the one aggressors concerning to this topic.

A.1 - DURESS AS A GROUND FOR EXCLUDING CRIMINAL RESPONSIBILITY

Ms. Minsa acted under duress and, thus, has no criminal responsibility for acts taken in the

MTF, since: (i) she faced a threat of imminent death; (ii) her acts were necessary and reasonable to

avoid the threat and (iii) she was not responsible for the threat situation13.

Firstly, there was an objective threat to Ms. Minsa’s life. At that time, the targets of RAP were

no longer limited to the Capu community, since the PSF had already been deployed to "cleanse the

society" from all "politically undesirable elements". The situation in Arkania had escalated in such

way that all persons who opposed the regime could be qualified as targets. Due to this situation not

even Ms. Minsa, who once supported RAP, could consider herself safe.

Thus, the threat of Ms. Minsa’s life existed on a subjective and objective perspective. It

existed subjectively, since she was aware of circumstances beyond her control that could harm her.

It also existed objectively because there were sufficient chances that her refusal to take the position

in the MTF would cause such consequences.

Hence, all conducts taken by Ms. Minsa fill the first element required by the duress defense

and thus, she had no moral choice14 of refusing to collaborate with RAP.

The impossibility of using other means to avoid such situation is also met. Ms. Minsa had

never occupied a commander position inside RAP’s hierarchy. The defendant was an ordinary

person and as such, could only be held accountable for conducts expected from every other regular

person. It lacks on reasonableness to expect that a regular person should rebel against RAP and risk

to be murdered as an undesirable political element.

As held by the Judges McDonald and Vohrah, at their Separate Opinion, on the case 13 As set on Article 31(1)(d) Statute. 14 See Kai Ambos, Treatise on International Criminal Law, Volume I: Foundations and General Part, page 358.

9

Prosecutor v. Erdemović, the requirement for resistance for a civilian is lower if compared to a

soldier15. Thus, she acted according to the necessity to avoid the harm.

Secondly, Ms. Minsa acted reasonably and necessarily. In accordance with the dissenting

votes of Judge Casesse16 and Judge Stephen17 on Erdemović’s case, the proportionality analysis is

strictly connected with the idea that the crime “would be committed no matter what”. This because

there is no balance of a life on the expense of others, but merely a choice between dying or not

dying while the crime would be committed anyway by the perpetrator group. This is exactly what

we observe in this case.

Ms. Minsa's hypothetical refusal from working in the Medical Task Force would not have

prevented the genocide from occurring, since she was a fungible and unnecessary part on the

genocidal plan. The harm caused would be the same and she would have subjected herself to the

threat of being another victim.

Lastly, Ms. Minsa did not place herself into the threat situation. Even though Ms. Minsa

ratified the political program in 2006, it did not anticipate all the political and social consequences

of the election of Mr. Gome. The escalation of violence was not planned on the document, which

did not predict the elimination of the Capu as a whole.

Thus, Ms. Minsa is not criminally responsible for the charges of genocide within article

31(1)(d) Statute, since her acts were motivated by an objective and imminent threat to her life.

B. THE ABSENCE OF GROUNDS FOR CRIMES AGAINST HUMANITY

B.1 - THE COMPLIANCE OF THE CONDUCTS WITH THE CODE OF MEDICAL ETHICS

Firstly, the Court shall observe that Ms. Minsa’s objective conducts did not constitute “other

inhumane actions”, nor did they cause any suffering or injuring to the persons involved at the

research. Ms. Minsa was “responsible for the autopsy of the deceased persons and in particular, the

removal of the brain for scientific research purposes”. Her access to the experiment was limited to

the study of organs of corpses, which does not constitute an inhumane act18 and is permitted by the

Code of Medical Ethics of Arkania.

15 ICTY, AC Decision, No.: IT-96-22, Joint Separate Opinion of Judge McDonald and Judge Vohrah, 07/10/1997, para. 84. 16 No.: IT-96-22, Separate and Dissenting Opinion of Judge Cassese, para. 44. 17 No.: IT-96-22, Separate and Dissenting Opinion of Judge Stephen, para. 56. 18 See ICTY, Prosecutor v. Tadic, TC, para 748.

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The national Code of Medical Ethics is the only instrument applicable to Arkania given that

the State is not abided to any international instrument on the issue of bioethics. As a matter of fact,

there is still no international consensus over the limits of scientific research with human subjects, as

UNESCO acknowledged on 200319. Even if international soft law instruments over the matter20

were to be taken into consideration, Ms. Minsa should not be held accountable for the selection of

subjects to the study, nor the medication given, since she could not interfere on such aspects of the

experiment.

B.2 - THE INADEQUACY OF THE CRIMINAL LIABILITY UNDER ARTICLE 25(3)(A) STATUTE

Ms. Minsa was only responsible for the autopsy of the deceased, which is not a crime under

the Statute. She cannot be held responsible for the whole experiment as a crime against humanity

because her conducts do not meet the elements held in the case Prosecutor v. Thomas Lubanga

Dyilo21 as necessary for “co-perpetration” form of liability based on the joint control over the crime.

Ms. Minsa had no potential of frustrating the commission of the medical experiment in the

SBDRC by not performing her tasks. Her contribution was not essential to the crime, thus failing

the second objective element.

Furthermore, Ms. Minsa does not fulfill the mental elements required by the “co-

perpetration”. Although aware of the test-persons selection and drug-inducing experiments, she did

not mean to cause such consequences to that persons, nor she coadunate with the main-perpetrator’s

intent.

The other two subjective elements are neither present. Once Ms. Minsa did not share the

intent of committing the crime with the main perpetrators, it is illogical to say that there was a

mutual agreement - acceptance - about such plan, or, even, joint control over its execution.

B.3 - THE INADEQUACY OF THE CRIMINAL LIABILITY UNDER ARTICLE 25(3)(D) STATUTE

This Court has established in Prosecutor v. Callixte Mbarushimana22 the elements which

must be observed for contribution under article 25(3)(d). As the non-compliance with any of the

elements is already sufficient to impede the recognition of this form of liability, it will be

demonstrated that the third objective element set was not fulfilled.

19 IBC. SHS/ETS/02/CIB-9/5. Report of the IBC on the Possibility of Elaborating a Universal Instrument on Bioethics. Paris, 13 June 2003. 20 Such as the Nuremberg Principles (1948), the Declaration of Helsinki (1964), the International Ethical Guidelines for Biomedical Research Involving Human Subjects (1992) and the Universal Declaration on Bioethics and Human Rights. 21 PTC I, Decision on the Confirmation of Charges, No.: ICC-01/04-01/06, 29/01/2007, para. 342-367. 22 ICC-01/04-01/10, para. 268-289.

11

This point concerns to the existence of a significant contribution that happens in any other

way than those set in article 25(3)(a) to (c) Statute. Inside this objective element, it must be

addressed whether Ms. Minsa’s conducts were “significant” as a part of the criminal context, since

it is known that not any “infinitesimal contribution”23 must be criminally liable.

The Court stipulated24 some points to determine the “level of contribution” of a conduct, such

as: (i) any efforts made to prevent criminal activity or to impede the efficient functioning of the

group's crimes, (ii) whether the person creates or merely executes the criminal plan, (iii) the position

of the suspect in the group or relative to the group and (iv) the role the suspect played vis-à-vis the

seriousness and scope of the crimes committed”.

Referring to such points, the defense submits that: (i) Ms. Minsa did efforts to prevent the

criminal activity, since she showed resistance to RAP’s actions by having a dispute with the head of

MTF; (ii) she merely executed the criminal plan, she had no power over others that could prevent

them from committing such conducts with the selected test-persons, nor she had any influence over

the criminal plan developed on the research centers (iii) According to her position, she had a very

low significance, being a medical assistant only responsible for the autopsy of the deceased persons

and (iv) she was a fungible instrument RAP was using through coercion in order to achieve its

greater plan.

Thus, we submit that neither of the forms of criminal liability are adequate for the conducts of

Ms. Minsa in concern to the charges of crimes against humanity.

23 ICC-01/04-01/10, para. 277. 24 ICC-01/04-01/10, para. 284.

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III. GROUNDS FOR ADMISSIBILITY OF CHARGES

A. THE LACK OF THE GRAVITY REQUISITE IN THE CASE UNDER ARTICLE 17(1)(D) STATUTE

It is known that during the Statute development, article 17(1)(d) held that the “crime” should

be of sufficient gravity, but such term was later replaced by the word “case”25, which to the

understanding that during the admissibility of charges, it is necessary the analysis of the defendant’s

individual conducts inside the criminal context, not the criminal context itself.

Thus, the mere existence of a core crime is not enough to justify this Court’s action. The

gravity criterion is brought so the Court may focus its resources on the investigation and

prosecution of the main responsible for the crimes. It prevents the Court from analyzing “peripheral

cases”.

For a comparative analysis, in the case Prosecutor v. Paško Ljubičić26, ICTY held that the

conduct of a military commander, responsible for the planning and executing a series of attacks

against Bosnian Muslim population – which caused the death of 100 civilians, torture of a high

number of men and the destruction of villages -, were not of the gravity degree required by the

Court to prosecute him.

Ms. Minsa’s level of contribution concerning the crimes here analyzed was of the lowest

standards. She was a subordinate following superior’s orders, a non-essential tool to crimes that

would have occurred either with or without her. By not filling the gravity requisite, brought under

article 17(1)(d), this Court must determine this case inadmissible.

25 ICC-01/04-01/10, 16/12/2011, para. 276. 26 Referral Bench, Decision to Refer the Case to Bosnia and Herzegovina pursuant to Rule 11bis, No.: IT-00-41-PT, 12/04/2006, para. 17-18.

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IV. PLEADINGS

Respectfully, this Defense Counsel submits that this Court shall determine that the present

case is inadmissible due to the lack of jurisdiction in respect to the withdrawal. Specially about the

charges related to crime against humanity.

The evidences obtained by the proprio motu investigation shall not be admitted, in respect to

the article 69(7)(b) of the Statue, once they were obtained in discordance with the Statute, damaging

the integrity of this procedure.

There are no reasonable grounds for charging Ms. Minsa for the crime of genocide, because

her conducts were under duress, in accordance with article 31(1)(d) Statute.

There are no reasonable grounds for charging Ms. Minsa for committing crimes against

humanity, because her participation was so insignificant, that neither the forms of criminal liability

brought under article 25(3)(a) and 25(3)(d) are adequate, and also because the compliance of the

experiments with the Code of Medical Ethics made Ms. Minsa believe that the conducts taken by

her were legal.

The present case lacks on gravity.

And finally, it must observed that the confirmation of the present charges will not allow this

Court to reach its main objective, which concerns to the “effective prosecution” of the most serious

crimes that ravages the world, because since the first moment we are dealing with a mere piece

inside of someone else's’ bigger plain.

For all those reasons, the Court must determine the present inadmissible, in accordance to the

art. 61(7)(b) of the Statute.