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 and
Luke 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 been
taken 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 25
th
February 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.


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 of
State, 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 the
Charter. (
Berld Martenczuk, The Security Council, the International Court and Judicial Review: What
Lessons 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, the
International 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

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 is
widely 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, 88 AJIL (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.
























2) Assuming involvement of Colonel Jingo Crackle in helping the HLF , he
cannot 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 from
prosecution.

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 and
therefore cannot be held responsible for the attacks under Section 28 of
the Statute.




















The Prosecutor vs Lama Suki

Charges against Lama Suki do not constitute a cognizable case against
humanity 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, Mugesera
v. Minister of Citizenship and Immigration, 93 AJ IL (1999) 529.

We know that Lama Suki never had such an intent and as per our arguments
made above his reference to the HLF was misunderstood as a reference to all
Hists 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. Sikirica et al., (Case No. IT-95-8-T), para. 89
A Trial Chamber of
the ICTY in Sikirica 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 such in the definition of genocide.


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 International
Law, 96 AJ IL (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 weapon
malfunctioned in a given case. (
W.J. Fenrick The Law Applicable to Targeting and
Proportionality 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 suki
himself had lost control over the military.

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 military
commander 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 is
conferred, 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 the
rule 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 de
Cassation); Castro case (Spain: Audiencia Nacional, 1999), cited by Cassese, supra note 15, at 272 n. 20; Re Sharon and
Yaron, 42 ILM (2003) 596 (Belgium: Cour de Cassation); R. v. Bow Street Stipendiary Magistrate and others)