Icc Moot Court Competition in The English Language 2020 The Counsel For The State of Valaria

STATE of VALARIA
ICC MOOT COURT COMPETITION
IN THE ENGLISH LANGUAGE
2020
THE COUNSEL FOR THE STATE OF VALARIA
Team Number: 129
Total Word Count: 9275
1
STATE of VALARIA
Original: English Date:
THE APPEALS CHAMBER
SITUATION RELATED TO GENOCIDE IN SOLANTIS
The State of Valaria’s Submission in the Appeal from the Pre-Trial Chamber’s
Decision on Confirmation of Charges against Defendant Cersei Bannister of Valaria.
2
STATE of VALARIA
TABLE OF CONTENTS
TABLE OF CONTENTS 3
LIST OF ABBREVIATIONS 4
INDEX OF AUTHORITIES 7
STATEMENT OF FACTS 20
ISSUES RAISED 22
SUMMARY OF ARGUMENTS 23
WRITTEN ARGUMENTS 24
I. ICC DOES NOT HAVE THE JURISDICTION TO PROSECUTE CERSEI 24

BANNISTER UNDER ARTICLE 12 OF THE ICC STATUTE
A.NON APPLICATION OF PRINCIPALS OF INTERNATIONAL CRIMINAL 24

LAW INCLUDING THE PROVISIONS OF THE VCLT
B. ABSENCE OFA REAL OR SUBSTANTIAL LINK BETWEEN ALLEGED 26

CONDUCT AND VALARIA
C. INAPPLICABILITY OF UNIVERSAL JURISDICTION 26
D. EXERCISE OF JURISDICTION IN CYBERSPACE 28
I.I ADMISSIBILITY 31
A.THE CASE AGAINST THE MEMBERS OF DRAGOS CONTRAVENES THE 31

COMPLEMENTARITY PROVISION OF THE STATUTE
B.. THE IMPACT OF THE CODED STATEMENTS IS NOT SUFFICIENT TO 32

MEET THE ‘GRAVITY’ REQUIREMENT OF THE ICC STATEMENT.
C..THE INCIDENTS CHARGED DO NOT MEET THE QUANTITATIVE

33
PORTION OF THE GRAVITY TEST. 31
UALITATID.. QUALITATIVE REQUIREMENTS OF THE GRAVITY THRESHOLD ARE

NOT NOT SATISFIED 33
3
STATE of VALARIA
II. THERE ARE NO SUBSTANTIAL GROUNDS TO BELIEVE ONE OR MORE

POSTS BY THE DRAGOS GROUP MADE ON STATUSPHERE CONSTITUTE
DIRECT AND PUBLIC INCITEMENT OF GENOCIDE 37
A.POSTS ON STATUSPHERE DO NOT AMOUNT TO A DIRECT AND PUBLIC

INCITEMENT OF GENOCIDE 37
B. FREEDOM OF SPEECH 39
III.CERSEI BANNISTER IS NOT CRIMINALLY LIABLE UNDER ART. 25(3)(E)

AND ART. 25(3)(C) 41
CERSEI BANNISTER’S CONDUCT DOES NOT AMOUNT TO DIRECT AND

PUBLIC INCITEMENT UNDER ART. 25(3)(E) 43
CERSEI BANNISTER DID NOT HAVE A LEGAL DUTY TO IMMEDIATELY

REMOVE OR BLOCK POSTS 47
SUBMISSIONS 50
4
STATE of VALARIA
LIST OF ABBREVIATIONS
AC Appeal Chambers
Anr. Another
App. Application
Art. Article
CEO Chief Executive Officer
Crim. Criminal
CUP Cambridge University Press
Doc. Document
ECHR European Court on Human Rights
Eds. Editors
ed. Edition
EJIL European Journal of International Law
Et al et alia “and others”
fn. Footnote
FRY Federal Republic of Yugoslavia
ICC International Criminal Court
ICJ International Court of Justice
ICCPR International Covenant on Civil and Political Rights
ICTR The International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
Id. Idem
5
STATE of VALARIA
ILC International Law Commission
IMT International Military Tribunal
INT’L International
JCSL Journal of Conflict and Security Law
NMT Nuremberg Military Tribunal
No. Number
Ors. Others
OTP Office of the Prosecutor, International Criminal Court
p. Page
Para. paragraph
Paras. paragraphs
PCA Permanent Court of Arbitration, Island of Palmas
PCIJ Permanent Court of International Justice
PTC Pre-Trial Chamber
Res. Resolution
Rev. Review
TC Trial Chamber
UDHR The Universal Declaration of Human Rights
UNGA United Nations General Assembly
UNHRC United Nations Human Rights Council
UNSC United Nations Security Council
UNTS United Nations Treaty Series
6
STATE of VALARIA
INDEX OF AUTHORITIES
TREATIES AND CONVENTIONS
1. American Convention on Human Rights (adopted 22 November 1969, entered into force 18
July 1978) 1144 UNTS 123
2. Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1
UNTS XVI
3. Declaration of Principles on Freedom of Expression in Africa, African Commission on
Human and Peoples’ Rights, 32nd Session, Banjul, The Gambia.
4. European Convention for the Protection of Human Rights and Fundamental Freedoms, as
amended by Protocols nos. 11 and 14 (adopted 4 November 1950, entered into force 3
September 1953) ETC 5
5. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171
6. Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1
July 2002) 2187 UNTS 90
7. Universal Declaration of Human Rights (1948), G.A. Res. 217A
8. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) 1155 UNTS 331
INTERNATIONAL CRIMINAL COURT
The Prosecutor v. Abu Garda, Pre- Trial Chamber I

The Prosecutor v. Bahar Idriss Abu Garda, Pre- Trial Chamber I, Decision on
Confirmation of charges, ICC-02/05-02/09, 8 February, 2010
Prosecutor v. Al Bashir, Pre-Trial Chamber I
7
STATE of VALARIA
Prosecutor v. Al Bashir, Pre-Trial Chamber I, Decision on the Prosecution's

Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, ICC-
02/05-01/09-3, 4 March 2009
Prosecutor v. Bemba, Pre- Trial Chamber II

The Prosecutor v. Jean-pierre Bemba Gombo (Pre- Trial Chamber II), Decision
Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the
Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, 15 June 2009
Prosecutor v. Bemba, Pre- Trial Chamber III

The Prosecutor v. Jean-pierre Bemba Gombo (Pre- Trial Chamber II), Decision on
the Prosecutor’s Application for a Warrant of Arrest against Jean‐Pierre Bemba
Gombo, ICC‐01/05‐01/08, 10 June 2008.
Prosecutor v. Charles Blé Goudé, Pre- Trial Chamber, Pre- Trial Chamber I
Prosecutor v. Charles Blé Goudé, Prosecutors Response to Defence application
pursuant to Articles 19(4) and 17(1)(d) of the Rome Statute, ,ICC-02/11-02/11,20
October 2014
Prosecutor v. Katanga, Trial Chamber II

The Prosecutor v. Germain Katanga (Trial Chamber II), Judgment pursuant to article
74 of the Statute, ICC-01/04-01/07, 7 March 2014
Prosecutor v. Mbarushimana, Appeals Chamber

Prosecutor v. Callixte Mbarushimana, Appeals Chamber, Judgment on the Appeal of
the Prosecutor Against the Decision of Pre-trial Chamber I of 16 December 2011
Entitled “Decision on the Confirmation of Charges” May 30, 2012
Situation in the Republic of Côte d’Ivoire, Pre-Trial Chamber III

Situation in the Republic of Côte d’Ivoire, Pre- Trial Chamber III, Decision Pursuant
to Article 15 of the Rome Statute on the Authorisation of an Investigation, ICC-
02/11, 15 November 2011
8
STATE of VALARIA
Situation in Democratic Republic Of Congo

Situation in Dem Republic Of Congo, Appeals Chamber
Situation in Dem Republic Of Congo (Judgment on Application for Extraordinary
Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal),
ICC-01/04, 13 July 2006
Situation in the Republic of Kenya, Pre-Trial Chamber II,

Situation in the Republic of Kenya, Pre-Trial Chamber II, Decision Pursuant to
Article 15 of the Rome Statute on the Authorization of an Investigation, ICC-01/09,
31 March 2010
Situation in the Republic of Kenya, Pre-Trial Chamber II,

Situation in the Republic of Kenya, Pre-Trial Chamber II, Decision on the Application
by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article
19(2)(b) of the Statute, ICC-01/09-01/11, 30th May, 2011
The Prosecutor v. Ntaganda, Pre-Trial Chamber I

The Prosecutor v. Bosco Ntaganda, Pre-Trial Chamber I, Decision on the Prosecutor's
Application for Warrants of Arrest pursuant to Article 58, ICC-01/04-01/07, 10
February 2006
The Prosecutor v. Ntaganda, Trial Chamber VI

The Prosecutor V. Ntaganda, Trial Chamber VI, ICC-01/04-02/06, 7 November 2019
The Prosecutor v. Simone Gbagbo, Pre-Trial Chamber II

The Prosecutor v. Simone Gbagbo, Pre-Trial Chamber II, ICC-02/11-01/12, 11
December 2014
INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA CASES:
Bikindi v. Prosecutor, Appeals Chamber

Simon Bikindi v. The Prosecutor (Appeals Chamber), Case No. ICTR-01-72-A, 18
March 2010
Gacumbitsi v. Prosecutor, Appeals Chamber
9
STATE of VALARIA
Sylvestre Gacumbitsi v. The Prosecutor (Appeals Chamber), ICTR-2001-64-A, 7 July

2006
Kalimanzira v. Prosecutor, Appeals Chamber

Kalimanzira v. The Prosecutor (Appeals Chamber), Case No. ICTR-05-88-A, 20
October 2010
Prosecutor v. Kalimanzira
Prosecutor v. Kalimanzira (Trial Chamber), Case No. ICTR-05-88-T, 22 June 2009
Nahimana v Prosecutor, Appeals Chamber

Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor
(Appeals Chamber), ICTR-99-52-A, 28 November 2007
Prosecutor v Nahimana, Trial Chamber

The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze
(Trial Chamber), ICTR-99-52-T, 3 December 2003
Nchamihigo v. Prosecutor, Appeals Chamber

Siméon Nchamihigo v. The Prosecutor (Appeals Chamber), Case No. ICTR-2001-63-
A, 18 March 2010
Nzabonimana v. The Prosecutor, Appeals Chamber

Callixte Nzabonimana v. The Prosecutor (Appeals Chamber), ICTR-98-44D-A, 29
September 2014
The Prosecutor V. André Ntagerura, Emmanuel Bagambiki, Samuel Imanishimwe,

Appeals Chamber, Judgement, 7 July 2006 [ICTR-99-46-A]
Prosecutor v. Akayesu, Appeals Chamber

The Prosecutor v. Jean-Paul Akayesu, Appeals Chamber, Judgment, 1 June 2001,
[ICTR-96-4-A]
Prosecutor v. Akayesu, Trial Chamber

The Prosecutor v. Jean-Paul Akayesu (Trial Chamber), ICTR-96-4-T, 2 September
1998
Prosecutor v. Bagilishema, Trial Chamber

The Prosecutor v. Ignace Bagilishema, (Trial Chamber I), ICTR-95-1A-T, 7 June 2000
Prosecutor v. Brdanin, Trial Chamber

Prosecutor v. Radoslav Brdanin (Trial Chamber), IT-99-36-T, 1 September 2004
Prosecutor v. Gacumbitsi, Trial Chamber

The Prosecutor v. Sylvestre Gacumbitsi (Trial Chamber), ICTR-2001-64-T, 17 June
2004
Prosecutor v. Kajelijeli, Trial Chamber

The Prosecutor v. Juvénal Kajelijeli (Trial Chamber), ICTR-98-44A-T, 1 December
2003
Prosecutor v. Kalimanzira, Trial Chamber
10
STATE of VALARIA
The Prosecutor v. Callixte Kalimanzira (Trial Chamber), Case No. ICTR-05-88-T, 22

June 2009
Prosecutor v Kayishema, Trial Chamber

The Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Chamber), ICTR-
95-1-T, 21 May 1999
Prosecutor v. Krstic, Appeals Chamber

Prosecutor v. Radislav Krstic (Appeals Chamber), IT-98-33-A, 19 April 2004
Prosecutor v. Mpambara, Trial Chamber

The Prosecutor v. Jean Mpambara (Trial Chamber), ICTR-01-65-T, 11 September 2006
Prosecutor v. Muhimana, Trial Chamber

The Prosecutor v. Mikaeli Muhimana (Trial Chamber), ICTR- 95-1B-T, 28 April 2005
Prosecutor v. Musema, Trial Chamber

The Prosecutor v. Alfred Musema (Trial Chamber), ICTR-96-13-T, 27 January 2000
Prosecutor v. Muvunyi, Trial Chamber

The Prosecutor v. Tharcisse Muvunyi (Trial Chamber), ICTR-2000-55A-T, 12
September 2006
Prosecutor v. Nahimana, Trial Chamber

The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze
(Trial Chamber), ICTR-99-52-T, 3 December, 2003
Callixte Nzabonimana v. The Prosecutor, Appeals Chamber

Callixte Nzabonimana V. The Prosecutor (Appeals Chamber), ICTR-98-44D-A, 29
September 2014
Prosecutor v. Niyitegeka, Trial Chamber

The Prosecutor v. Eliézer Niyitegeka (Trial Chamber), ICTR-96-14-T, 16 May 2003
Nahimana v. Prosecutor, Appeals Chamber

Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor
(Appeals Chamber), ICTR-99-52-A, 28 November 2007
Prosecutor v. Ruggiu, Trial Chamber

The Prosecutor v. Georges Ruggiu (Trial Chamber) Chamber, ICTR-97-32-I, 1 June,
2000
Prosecutor v. Rutaganda, Trial Chamber

The Prosecutor v. Georges Anderson Nderubumwe Rutaganda (Trial Chamber), ICTR-
96-3-T, 6 December 1999
Prosecutor v. Semanza, Trial Chamber

The Prosecutor v. Laurent Semanza (Trial Chamber), ICTR-97-20-T, 15 May 2003
Prosecutor v. Stakic, Appeals Chamber

Prosecutor v. Milomir Stakic (Appeals Chamber), IT-97-24-A, 22 March 2006
11
STATE of VALARIA
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

CASES:
Prosecutor V. Blagoje Simić, Appeals Chamber

Prosecutor V. Blagoje Simić, Appeals Chamber, Judgement, 28 November 2006 [IT-
95-9-A]
Blaškić, Appeals Chamber

Prosecutor v. Tihomir Blaškić, Appeals Chamber, Judgement, 29 July 2004 [IT-95-14-
A]
Čelebići
ICTY, Mucić et al., Trial Judgment, 16 November 1998. [IT-96-21-T]
Tadic, Appeals Chamber

The Prosecutor V. Duško Tadic, Appeals Chamber, Judgement, 15 July 1999 [IT-94-
1-A]
Prosecutor v Prlic, Trial Chamber

The Prosecutor v. Jadranko Prlić,Bruno Stojić, Slobodan Praljak, Milivoj Petković,
Valentin Ćorić, Berislav Pušić, Trial Chamber, Judgement, 29 May 2013 [IT-04-74-
T]
Prosecutor v. Kupreskic et al., Trial Chamber

Prosecutor v. Kupreskic et al., (Trial Chamber Judgement), IT-95-16-T, 14 January
2000
Prosecutor v. Mejalić, Pre Trial Chamber

Prosecutor v. Mejalić, Pre Trial Chamber, Judgement, 20 July 2004, [IT-02-65-PT]
Prosecutor v. Mrkšić and Šljivančanin, Appeals Judgement
Prosecutor V. Mile Mrkšić And Veselin Šljivančanin, Appeals Chamber, Judgement,

5 May 2009 [IT-95-13/1-A]
Prosecutor v. Naser Orić, Appeals Chamber
Prosecutor V. Naser Orić, Appeals Chamber, Judgement, 3 July 2008 [IT-03-68-A]
12
STATE of VALARIA
Šainović et al., Appeals Judgement
Prosecutor V. Nikola Šainović Nebojša Pavković Vladimir Lazarević Sreten Lukić,

Appeals Chamber, Judgement, 23 January 2014 [IT-05-87-A]
Prosecutor v. Radoslav Brđanin, Appeals Chamber
Prosecutor V. Radoslav Brđanin, Appeals Chamber, Judgement, 3 April 2007 [IT-99-

36-A]
Prosecutor v. Stanislav Galić, Appeals Chamber
Prosecutor V. Stanislav Galić, Appeals Chamber, Judgement, 30 November 2006 [IT-

98-29-A]
INTERNATIONAL COURT OF JUSTICE CASES:
North Sea Continental Shelf Case

(Federal Republic of Germany v. Denmark; Federal Republic of Germany v.
Netherlands) , I.C.J. Reports 1969, p. 3, International Court of Justice (ICJ), 20 February
1969
Nicaragua Case
Military and Paramilitary Activities in and against Nicaragua, (Merits), ICJ Rep. 1986.
Fisheries Jurisdiction case

Fisheries Jurisdiction (Federal Republic of Germany v. Zeeland), Merits, Judgment,
Z.C.J. Reports 1974, p. 175.
OTHER INTERNATIONAL COURT CASES:
Island of Palmas Case [PCA]
Island of Palmas Case (or Miangas), United States v Netherlands, Award, (1928) II
RIAA 829, ICGJ 392 (PCA 1928), 4th April 1928, Permanent Court of Arbitration
[PCA]
13
STATE of VALARIA
Hermann Case [IMT]

Nuremberg judgment, France and ors v Göring (Hermann) and ors, Judgment and
Sentence, [1946] 22 IMT 203, 1st October 1946, International Military Tribunal [IMT]
Jersild v. Denmark, 298 Eur. Ct. H.R.

Jersild v. Denmark (Grand Chamber), European Court of Human Rights, Application
no. 15890/89, 23 September 1994
Polish Silesia Case [PCIJ]

German Interests in Polish Upper Silesia (Germ. v. Pol.).
S.S. Lotus
S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)
DOMESTIC CASES:
Wood Pulp Case
Ahlström OY v. E.C. Commission (“Wood Pulp”), 1988 E.C.R. 519
Eichmann Case
Attorney Gen. of Israel v. Eichmann, 36 I.L.R. 5, 34 (Jm. D.C., 1961), aff’d, 36 I.L.R.
277 (Isr. S. Ct. 1962)
Libman Case
Libman v. The Queen, [1985] 2 S.C.R. 178
Playboy Enterprises, Inc

Playboy Enter., 939 F. Supp. 1032 (S.D.N.Y. 1996)
Schooner Exchange
The Schooner Exch. v. McFaddon, 11 U.S. 116, 3 L. Ed. 287, 1812 U.S. LEXIS 377,
7 Cranch 116 (U.S. Mar. 2, 1812)
Somchai Liangsiripraesert Case

Somchai Liangsiripraesert Case v. U.S. 29 I.L.M. 1390
INTERNATIONAL CRIMINAL COURT OFFICIAL DOCUMENTS:
ICC,Rules of Procedure and Evidence, ICC-ASP/1/3
14
STATE of VALARIA
Office of the Prosecutor, ICC, Policy Paper on Preliminary Examinations (2003)
Office of the Prosecutor, ICC, Policy paper on case selection and prioritisation (2016)
Office of the Prosecutor, ICC, Response to Communications Received Concerning Iraq

(2006)
U.N. DOCUMENTS:
Travaux preparatoires of the Genocide Convention, UN Doc. E/794
UN General Assembly, Prevention and Punishment of the Crime of Genocide, 9 December

1948, A/RES/260.
BOOKS
A Cassese, P Gaeta, J.R.W.D. Jones

The Rome Statute of the International Criminal Court: A Commentary, Oxford University
Press (2002)
Evans, Malcolm D
International Law. 3d edn. Oxford: Oxford University Press, 2010.
Gideon Boas, James L. Bischoff, Natalie L. Reid

Elements of Crimes under International Law, International Criminal Law Practitioner Library
- Vol. 2, Cambridge University Press (2009)
John H Currie, Craig Forcese & Valerie Oosterveld

International Law: Doctrine, Practice, And Theory 463 (2007).
Kai Ambos
Treatise on International Criminal Law Volume I- Foundations and General Part, Oxford
University Press (2013)
Otto Triffterer, Kai Ambos

Triffterer and Ambos ,“The Rome Statute of the International Criminal Court- A
Commentary” (3rd ed 2016)
15
STATE of VALARIA
Richard Ashby Wilson, Matthew Gillett

Richard Ashby Wilson and Matthew Gillett, “The Hartford Guidelines on Speech Crimes in
International Criminal Law” (2019)
Schabas, W
An Introduction to the International Criminal Court. Cambridge: Cambridge University
Press (2017)
Genocide in International Law (2000)
Shaw, Malcolm
International Law (7th ed.) Cambridge: Cambridge University Press (2014)
ARTICLES:
Anthony J. Colangelo
The New Universal Jurisdiction: In Absentia Signaling over Clearly Defined Crimes, 36 Geo.
J. Int'l L. 537 (2005)
Brendan Saslow
Public Enemy: The Public Element of Direct and Public Incitement (2016)
David R Johnson & David B Post

Law and Borders: The Rise of Law in Cyberspace, 48 Stan L Rev 136 (136)
Focarelli, C.
Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?. European Journal of
International Law, 21(1). (2010)
John H Currie, Craig Forcese & Valerie Oosterveld

International Law: Doctrine, Practice, And Theory (2007)
Marco Roscini,
‘Gravity in the Statute of the ICC and cyber conduct that constitutes, instigates , facilitates
the International Crimes’ (2019)
Megumi Ochi
Gravity Threshold Before The ICC: An overview of the Court’s practice (2016)
M. Vagias (2012)
16
STATE of VALARIA
‘The Territorial Jurisdiction of the International Criminal Court– A Jurisdictional Rule of

Reason for the ICC’. (2012)
M. Vagias (JCSL)
‘The Territorial Jurisdiction of the ICC for Core Crimes Committed Through the Internet’,
Journal of Conflict and Security Law, Volume 21, Issue 3, Winter 2016, Pages 523–540.
Mireille Hildebrandt
‘Extraterritorial Jurisdiction To Enforce In Cyberspace? Bodin, Schmitt,Grotius In
Cyberspace’, The University Of Toronto Law Journal ,Vol. 63, No. 2 (Spring 2013), Pp.
196-224
Lea Brilmayer
‘Justifying International Acts 107’(1989)
Richard Ashby Wilson and Matthew Gillett

“The Hartford Guidelines on Speech Crimes in International Criminal Law” (2019)
Shannon Fyfe
Tracking Hate Speech Acts as Incitement to Genocide in International Criminal Law (2017)
John H Currie, Craig Forcese & Valerie Oosterveld, International Law: Doctrine, Practice, And Theory 463
(2007)
MISCELLANEOUS:
Hiawatha Bray,
‘UMass Shuts Down Web Site Containing Neo-Nazi Material, BOSTON GLOBE’, Feb. 2,
1996, at 28
http://www.icc-cpi.int
Legal-tools.org (2016). [online] Available at: https://www.legal-tools.org/doc/7441a2/pdf/

[Accessed 11 February 2020].
Nathaniel C. Nash,
‘Germans Again Bar Internet Access, This Time to Neo-Nazism’, N.Y. Times, Jan. 29, 1996
17
STATE of VALARIA
STATEMENT OF FACTS
I. Background Of The Situation
Valaria and Solantis are democratic nations divided by the Neereen Sea.
Solantis is composed of 97 percent Nothroki and 3 percent Starek ethnicity and Valaria is composed
entirely of a Nothroki population. For a centenary there have been widespread discrimination and
acts of violence by the Nothroki directed against the Stareks in Valaria (before their expulsion) and
in Solantis (continuing to this day). The Rome Treaty has been ratified only by the State of Solantis.
However, both countries are members of the U.N. and parties to the I.C.C.P.R. and the Genocide
Convention. They do not have a bilateral extradition treaty.
II. Role Of Statusphere In Inciting Attacks
Cersei Bannister, a citizen of Valaria, is the Controlling Owner and CEO of a social network platform
called Statusphere,created for those of Nothroki ethnicity. Statusphere has 7 million active users in
Valaria and 3 million in Solantis where it has become a popular source of information for citizens to
obtain news, weather forecasts, and government information. Access to Statusphere by users is free
and the majority of Statusphere’s revenue is from pop up ads funded by groups on the platform
(including $1 million by Nothroki extremists).
In 2017, a Nothroki extremist group committed to the ethnic purity of Solantis and calling itself
“Dragos” was established. In January 2018, Dragos had 1,000 members, who belonged to a
Statusphere private group called “Dragos Initiative.” Posts on the group were limited to
members, who had to sign up for the same. Today Dragos has 4000 members.
On 25 May 2019, the UN High Commissioner for Human Rights issued a report on the situation in
Solantis that concluded that the increasing violence against the Stareks was linked to posts made on
Statusphere by the Dragos extremist group. Prompted by coded calls to violence including the use of
ethnic slurs such as “break down those widgets”, group members attacked Stareks outside their
worship centres and so on, resulting in innumerable injuries and over 150 Starek deaths in the first
five months of 2019.
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STATE of VALARIA
On an email request to Bannister by the President of Solantis, the original Dragos Initiative group
was removed. A similar group called ‘Dragos Ambition’ was then created and not removed despite
the President’s repeated email requests. Bannister declined to do so stating that Statusphere’s content
monitors did not recognize the messages as calls to violence and closed down the offending groups
after each attack.
Within a short time of the Dragos groups being removed from Statusphere, new groups of the same
nature with similar names were created, which continued to call for violence. The newly elected
Solantis Parliament enacted a Statute enabling the prosecution of individuals who incite violence
against minorities using the Internet.
Bannister continued to have the same response.
III. Chronology Of Events
The attacks in Solantis between January-December 2017 led to 23 Starek deaths. The online posts
and the violence continued in the last two months of 2019. By 1 January 2020, due to several attacks
including those at the Liberty Building and voting centres, the death toll rose to 1,500 Stareks.
On 5 January 2020, Solantis requested Valaria to extradite Bannister, however Valaria refused due to
the lack of an extradition treaty. Thus, the matter was referred to the ICC.
IV. Pre-Trial Chamber Proceedings
The PTC decided by majority, with one dissent, that: the posts made on Statusphere on 16 June, 2019
and 6 November, 2019 were liable to prosecuted as incitement to Genocide; Bannister is criminally
liable for the charges against her and that the Court does have jurisdiction in the present case under
Article 12 of the Rome Statute.
This is Cersei Bannister’s Appeal to the PTC decision.
19
STATE of VALARIA
ISSUES
-I-
Whether the ICC has the jurisdiction to prosecute Cersei Bannister under Article 12 of the ICC
Statute, considering that all of her actions related to the charges of incitement and providing the
means to incite genocide occured in her State of nationality, Valaria, which is not a party to the
ICC.
-II-
Whether there are substantial grounds to believe one or more of the posts by the Dragos group made
on the social networking platform, Statusphere, between January 2018 and January 2020 constituted
direct and public incitement of genocide under Article 25(3)(e) of the ICC Statute.
-III-
Whether Cersei Bannister, owner and CEO of the social networking company Statusphere can be
held criminally responsible for inciting genocide under Article 25(3)(e) of the ICC Statute and/or
providing the means to incite genocide under Article 25(3)(c) of the ICC Statute by allowing users
to post statements.
20
STATE of VALARIA
SUMMARY OF ARGUMENTS
-I-
Article 12 of the Rome Statute, particularly states that the Court has jurisdiction over nationals of
state parties and over crimes committed on the territory of State parties. This case lacks justification
for jurisdiction on either ground as The Defendant is a citizen of Valaria, that is not a party to the
Statute. The State submits that the defendant’s actions occurred in Valaria which is not bound by the
treaty’s provisions as stated in the Vienna Convention. Additionally, there exists no bi-lateral treaty
between Valaria and Solantis, permitting extradition of the defendant. The present case lacks
sufficient gravity. The factors considered vis a vis scale, nature, impact, manner of commission and
degree of participation are found to be lacking.Thus, it also fails to satisfy the requirements of the
admissibility test under Article 17(1)(d) of the Statute.
-II-
The posts on Statusphere do not constitute as a direct and public incitement to genocide. On account
of being a democracy Valaria upholds the Right to Freedom of Speech. The classification of the posts
as direct and public incitement to genocide curb the Freedom of Speech of its citizens. The posts were
neither direct in their language nor were made to a wide audience. The messages do not meet the
requirements of the grave act of incitement to genocide under Art. 25(3)(e).
-III-
The State of Valaria is a party to the Convention on the prevention and punishment of the crime of
genocide and owing to Art. 5 has rightfully not criminalised the Defendant's conduct. The elements
of actus rea and mens rea are not satisfied for the Defendant to be held criminally responsible under
Art. 25(3)(e) and 25(3)(c). The Defendant, a citizen of Valaria, is not criminally responsible under
Article 25(3)(c) for aiding and abetting. Cersei has not with her contribution created or increased the
risk of the crimes against the Stareks. She hasn’t ailed to immediately remove or block such posts
and neither has a legal duty for the same as her conduct in not criminalized in her country (Valaria).
21
STATE of VALARIA
WRITTEN ARGUMENTS
I. ICC DOES NOT HAVE THE JURISDICTION TO PROSECUTE CERSEI BANNISTER

UNDER ARTICLE 12 OF THE ICC STATUTE
1. The International Criminal Court (ICC) is governed by the provisions of the Rome Statute
(Herein referred to as “The Statute”). The present case concerns two countries namely,
Valaria and Solantis. Solantis, a State Party has initiated the proceedings by submitting the
matter to the ICC for adjudication. Article 12(2)(a) of the Rome Statute, particularly states
that the Court may exercise jurisdiction over nationals of state parties and over crimes
committed on the territory of state parties. 1
2. The State submits that the present case lacks justification on either ground as Bannister is a
citizen of Valaria,2 a state that is not a party to the Rome Statute.3 Furthermore, it is claimed
that her actions have somehow contributed to the incitement of genocide in Solantis,
although she resides and works solely within the territory of Valaria, and all her actions
occurred in Valaria.
1.A. NON APPLICATION OF PRINCIPALS OF INTERNATIONAL CRIMINAL LAW
INCLUDING THE PROVISIONS OF THE VCLT
3. The Statute should be interpreted according to the principles of the Vienna Convention. 4 It
is submitted that Valaria, as a non-state party, is not obligated to adhere to the provisions of
the Statute. The Preamble of the VCLT mentions the principles of free consent as well as good
faith, along with the pacta sunt servanda as being universally recognised.5 Article 26 defines
‘pacta sunt servanda’ as no more than the agreements which are binding must be performed. 6
Article 34 also talks of Pacta ‘Tertiis Nec Nocent Nec Prosunt’ which means that a treaty
binds only the consenting party. 7 They do not create either obligations or rights for third
1 Statute, art. 12(2)(a)

2 Case, para 6
3 Case, para 3
4 See e.g. Prosecutor v. Al Bashir, Pre-Trial Chamber I, pp. 48:19-51:2.
5 Preamble of VCLT
6 VCLT, art. 26
7 VCLT, art. 34
22
STATE of VALARIA
parties without their consent. 8 This rule is one of the bulwarks of the independence and
equality of States.9 Additionally, in international law the justification for this rule does not
rest simply on the general concept of the law of contract but on sovereignty and
independence of States.10 Jurisdiction is thus, an aspect of sovereignty, it is co-extensive with,
and indeed incidental to, but also limited by a State’s sovereignty. 11
4. The three prerequisites of “assent of the Third State” and the “express recognition by a state
of its obligations” and “the written form of assent” are absent in the present case. 12 Valaria
has neither accepted the jurisdiction of the Court nor made a declaration accepting the same13
in accordance with Article 12 of the Statute. 14
5. Furthermore, “When approaching the construction of a statute, particularly a criminal statute
there is a strong presumption that it is not intended to have extraterritorial effect and clear and
specific words are required to show the contrary; this presumption arises from the assumption
that the legislature does not intend to intrude upon the affairs of other countries which should
be left to order affairs within their own boundaries by their own laws.”15 Thus the right of
Valaria to be free from the exercise of exorbitant jurisdiction over its nationals cannot be
abrogated by a treaty to which it is not a party. Accordingly, the submission of this case to
the ICC by Prosecution violates established international law and shall be categorically
refuted.
1B.ABSENCE OFA REAL OR SUBSTANTIAL LINK BETWEEN ALLEGED

CONDUCT AND VALARIA
6. Territorial jurisdiction allows courts of the State where the crime is committed to exercise
jurisdiction.16 This territorial basis for jurisdiction necessitates a real or substantial link
8 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155,
Article 35; see also North Sea Continental Shelf case, Nicaragua Case, Fisheries Jurisdiction case, Polish Silesia Case
(PCIJ)
9
Draft Articles on the Law of Treaties with commentaries 1966
10 UN Charter
11 Nicaragua Case
12 VCLT
13 Case, para 19
14 Statute, ar. 12(2) and article 12(3)
15 Somchai Liangsiripraesert Case
16 Justice Marshall in the Schooner Exchange, at 838.
23
STATE of VALARIA
between the alleged crimes and the forum State. 17 This test is based on an inspection of the
activities constituting the offense. 18 In the present case, there is no real or substantial link
between the crime and Valaria. The fact that Statusphere was used as a platform to disseminate
hateful messages by certain users does not mean it is the ‘link’ between the crimes. The link
is further disproved as its purpose was not that of the crime in question. The team of
Statusphere was determined to remove the posts of the website. It must be noted that the
disaffection against the Starek community has been prevalent much before Statusphere came
into existence. There is no evidence that can definitively determine that the events in question
events have occurred in Valaria. The allegations in question relate solely to what has
transpired in Solantis.19
7. Most of the criminal prosecutions in the Court were found to rely on the basis of territoriality 20
but there is limited scope of the ICC’s territorial jurisdiction as well. The Court’s argument is
based on not only territoriality, but also nationality 21; as observed in cases of crimes on Bemba
Gombo22 and the Callixte Mbarushimana case 23, it is clear that States cannot limit the Court’s
investigation to only certain crimes wherein the offense took place, on the provision that the
court is acting based on the crisis situation as a whole.24
1C.-Inapplicability of Universal Jurisdiction

8. The Statute excludes the principle of universal jurisdiction, precluding Solantis from claiming
justification for seeking relief on this ground. It is arguably the most contentious method of
establishing jurisdiction in international law. 25 The inclusion of the concept in the Rome
Statute would have been highly problematic and controversial, as evidenced by its exclusion. 26
The drafters of the Rome Statute acknowledged that, in practice, states rarely exercise
universal jurisdiction.
17
S.S. Lotus at 299
18
Libman Case, para 25
19
Case, page 7-18
20 M. Vagias (2012) at pp. 50:1
21 Statute, art. 12(2)(b)
22 Prosecutor v. Bemba, Pre-Trial Chamber III, para 15
23 Prosecutor v. Mbarushimana, Appeals Chamber, para 1
24 Ibid, Defence Challenge to the Jurisdiction of the Court at para 15, 27
25 John H Currie et.all (2007) at 463
26 William A Schabas, An Introduction To the International Criminal Court 66 (2007)
24
STATE of VALARIA
9. While certain conduct is prohibited under customary international law and might be the
object of universal jurisdiction by a national court, the establishment of, and a state's
participation in, an international criminal court are not derived from custom but, rather, from
the requirements of treaty law. At this stage it is important to note that unlike the ICTY in its
famous Tadic´ Jurisdiction Decision 27, the ICC cannot extend its jurisdictional reach by
reference to international customary law. 28
10. Despite this, the Appeals Chamber of ICTY in the Tadic case 29, ruled that “universal
jurisdiction (is) nowadays recognized in the case of international crimes. The recognition
which the Appeals Chamber refers to is certainly linked to the ‘jus cogens’ obligations that
ensue from the ‘erga omnes’ nature of the core crimes of Genocide, Crimes against
Humanity, War crimes, The crime of Aggression
11. However, it is extremely pertinent to note that that the OTP has approached this court on the
charge incitement to genocide under Article 25(3)(e) and Article 25(3)(c) 30 which does not
form a part of the core crimes enshrined in Art. 5. Furthermore, Art. 6, which defines
genocide31, includes only the text from Article II of the Genocide Convention — defining
genocide itself, but not listing the “other acts” including incitement that are enumerated
in Article III of the Genocide Convention. 32 Unlike the ICTY and ICTR which treat incitement
as a separate crime, the Statute lists incitement as a mode of participation rather than as a
crime in itself, and thereby does not include incitement in the list of crimes over which the
ICC has jurisdiction under Article 12. 33 Thus, the Defendant is not liable to the high threshold
and stringency of the act of genocide. The PTC has erred in this regard and the decision to
assert jurisdiction over Bannister is a mistake in law.
1D. EXERCISE OF JURISDICTION IN CYBERSPACE
27 Tadic, Appeals Chamber, para

28 Otto Triffterer, Kai Ambos ,“The Rome Statute of the International Criminal Court- A Commentary” (3rd ed 2016)
page
29 Tadic, Appeals Chamber, para 62
30 Case, para19
31 Statute, art. 6
32 UN General Assembly, Prevention and Punishment of the Crime of Genocide, 9 December 1948, A/RES/260
33 William A Schabas, Genocide in International Law 259 (2000)
25
STATE of VALARIA
12. Jurisdiction in cases of crimes occurring in cyberspace is a complex issue. Legal scholars have
in the past, emphasised the intangible nature of cyberspace, proclaiming, “Because events on
the Net occur everywhere but nowhere in particular, are engaged in by online personae who
are both 'real' (possessing reputations, able to perform services, and deploy intellectual
assets) and 'intangible' (not necessarily or traceably tied to any particular person in the
physical sense), and concern 'things' (messages, database, standing relationships) that are
not necessarily separated from one another by any physical boundaries, no physical
jurisdiction has a more compelling claim than any other to subject these events exclusively to
its laws.” 34
13. The boundaries of territory in the era of cyberspace are liquid. Cyberspace does not stop where
ordinary space begins. This means that territorialisation of cyberspaces easily generates cross-
border communication, commerce, and crime, situating the same action seamlessly in
different territories.35 The problem with the argument in favour of enforcing universal
jurisdiction for cybersecurity is that it builds on an a legal occupation because it claims and
seizes access to computing systems located in the realm of another state that may decide to
exercise its monopoly on violence. 36 Thus, Valaria, which serves as the headquarters for
Statusphere and is the state in which its servers are located 37 has the option to exercise its
monopoly. It is the State’s humble submission in such a scenario, Solantis’s ability to exercise
jurisdiction and consequently the ability of the ICC to exercise said jurisdiction, through the
principal of delegated jurisdiction is ambiguous at best.
a. Territoriality
14. "The territoriality principle is by far the most common basis for the exercise of jurisdiction
to prescribe. This principle would allow a State to order service providers who operate on its
territory to obey its regulations. It would further allow barring access to certain Web sites
from machines operating within the State's territory. States insist, in fact, on their
sovereignty to control activities which happen in their territory even if these activities are
not limited to the national territory 38 and even if control might be ineffective. 39 It is our
34 David R Johnson & David B Post, 'Law and Borders: The Rise of Law in Cyberspace' (1996) 48 Stan L Rev 136
35 Mireille Hildebrandt, ‘Extraterritorial Jurisdiction To Enforce In Cyberspace? Bodin, Schmitt,Grotius In
Cyberspace’, The University Of Toronto Law Journal, Vol. 63, No. 2 (Spring 2013), Pp. 196-224
36 Ibid
37 Case, para 6
38
Nathaniel C. Nash, ‘Germans Again Bar Internet Access, This Time to Neo-Nazism’ Nathaniel C. Nash, ‘Germans
Again Bar Internet Access, This Time to Neo-Nazism’, Jan. 29, 1996
39 Hiawatha Bray, UMass Shuts Down Web Site Containing Neo-Nazi Material,Feb. 2, 1996, at 28
26
STATE of VALARIA
humble submission that Solantis had a responsibility to protect its nationals. By simply
regulating the use of Statusphere in their country, they could have averted the tragedy
caused by ensuing events. This move would have been in consonance with the principles of
sovereignty which allow a state to control activities which happen in its territory.
15. However, "It cannot be the case that a state is prohibited from engaging in any actions that
produce changes in another state, because in an interdependent world, virtually everything
that one state does has impacts on the others.40 In addition, the territoriality principle does
not allow extraterritorial application of national law. Thus, an unfair burden was imposed on
Bannister. Despite this she ensured that each offending group site was removed at the
earliest.
16. Under the nationality principle the right of a State to regulate the conduct of its citizens or
nationals anywhere in the world is, like territorial jurisdiction, basically noncontroversial.
However, this right does not extend to citizens of another/foreign state and their acts. Thus,
Solantis can exercise jurisdiction over its national i.e. initiate proceedings against them in
their national courts, but to do so over Cersei is in contravention with the Nationality
principle as per Article 12(2)(b) of the Statute
b. Effects Doctrine
17. Effects Doctrine is the concept that alleged crimes perpetrated in a Non-party State may be
punishable for the effect they have on State parties.
18. The Rome Statute is quiet on this concept. Deducing such jurisdiction for the ICC would be
contrary to the plain and ordinary meaning of the words used by the drafters of the statute.
Solantis' actions cannot be justified on such grounds.
19. The 'Effects doctrine', extends the objective jurisdiction further to encompass more than just
the distinct physical elements of the crime.41 It is distinguished from objective territorial
jurisdiction in that it does not rely upon some element of inter-territorial conduct.42 This has
been met with strong protests and cases which appear especially when dealing with a
transnational crime.43 Its status in international law at least, is therefore dubious.
20. Firstly, the crimes that occurred in Solantis were arbitrary of Bannister’s involvement. There
is no indication that she is a direct part of the incidents that have occurred at Solantis, as she
is merely the CEO of a social media networking platform which was one of the many media
40 Lea Brilmayer, ‘Justifying International Acts’, 107 (1989)

41 Shaw, International Law, 7th Ed. (Cambridge: CUP, 2014), pp. 499-505 (explaining the ‘effects doctrine’)
42 Evans, Malcolm D, 439
43 Eg: Wood Pulp Case.
27
STATE of VALARIA
used to spread hate speech, etc. Additionally, it has been held that ‘the Internet is a world-
wide phenomenon, accessible from every corner of the globe. The Defendant cannot be
prohibited from operating its Internet site merely because the site is accessible from within
one country in which its product is banned.’ 44 This amounts to criminalisation of free speech
which is contrary to the aims of the drafters of the Statute. 45 To hold otherwise "would be
tantamount to a declaration that this Court, and every other court throughout the world, may
assert jurisdiction over all information providers on the global World Wide Web. 46
21. Also, for the 'Effects doctrine' to be applied, if found that it exists in international law, Solantis
would have to prove that Bannister played a direct role in the acts committed against the
minority groups in Solantis, and that it was not merely an incidental effect. The fact that
Statusphere- a website of which she is the CEO, was used by some of the members of the
extremist group ‘Dragos’ intending to spread hate alone is simply, not sufficient.
22. Thus, With respect to the Statute, the distinction in Article 12(2)(a) suggests that territorial
jurisdiction is limited only to the territory of the criminal “conduct” in question and not the
manifestation of the effects. At the same time, the drafters showed some degree of
technological awareness since Article 68(2) of the Statute explicitly allowed for the electronic
presentation of evidence and so on. Therefore, it is without much substance to say that the
drafters were unaware of the issue of Internet-criminality or the crimes in cyberspace and
decided to limit the Court’s jurisdiction by excluding it.
23. In conclusion, it is observed that actors in cyberspace often operate not on the basis of
hierarchical relationships but in horizontal structures and dynamics. There does not exist a
superior-subordinate relationship in this case. Furthermore, there is definitive evidence that
can attribute to the possibility that Bannister could exercise certain powers within her duty to
prevent, which she did by removing the harmful posts and groups but she visibly lacks the
capacity to command and control the commission of the said crime(s).
24. The real question, thus, lies in whether the Court should indulge in the use constructions of
qualified territoriality, in the absence of explicit legislation, to address the cyber commission
44
45) William A Schabas, Genocide in International Law 259 (2000)
46 Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc. 8
28
STATE of VALARIA
of core crimes.47 Until, the court rules in favour of such an interpretation, application of such
a concept defeats the provisions of the Statute.
I.IADMISSIBILITY
25. I.I A.THE CASE AGAINST THE MEMBERS OF DRAGOS CONTRAVENES THE
COMPLEMENTARITY PROVISION OF THE STATUTE. It is our humble submission that
due consideration has not been attached to Article 17(1)(a) of the Statute. 48 The article clearly
provides that a case is inadmissible if is being investigated or prosecuted, or has been
prosecuted by a State which has jurisdiction over it. The PTC in Lubanga 49 held that the case
at hand would be admissible only if those States with jurisdiction over it have remained
inactive in relation to that case or are unwilling or unable, within the meaning of article
17(1)(a) to (c),2 and 3 of the Statute. In the present case prosecutions against members of
Dragos for incitement and attempted genocide as well as crimes against humanity are taking
place in Solantis pursuant to national law.50 Thus this court cannot pronounce judgement on
whether there are substantial grounds to believe one or more of the posts by the Dragos group
constituted direct and public incitement of genocide under Article 25(3)(e) of the ICC Statute.
26. Furthermore, a case is inadmissible in so far as the investigation, prosecution or trial is proven
by evidence that it targets the same ‘case’ which is the subject of the Court’s consideration.51
The prosecutions taking place in Solantis fulfil the test of ‘covering the same individual(s)
and substantially the same conduct as alleged in the proceedings before the Court’ 52 These
circumstances render the present case inadmissible before the Court.
I.I B THE IMPACT OF THE CODED STATEMENTS IS NOT SUFFICIENT TO MEET

THE ‘GRAVITY’ REQUIREMENT OF THE ICC STATEMENT.
27. The State submits that impact of the coded statements displayed on private groups in
Statusphere is too small to constitute incitement to genocide and furthermore, to meet the
gravity requirement under Article 17(1)(d) of the ‘Statute’. The fact that the gravity threshold
47 Vagias, M. "‘The Territorial Jurisdiction of the ICC for Core Crimes Committed Through the Internet’." Journal of
Conflict and Security Law 21.3 (2016).
48 Statute, art.17
49 The Prosecutor v. Ntaganda, Pre-Trial Chamber I, para 29
50 Case, para 19
51 The Prosecutor v. Simone Gbagbo, Pre-Trial Chamber II para 34
52Situation in the Republic of Kenya, Pre-Trial Chamber II, para 21
29
STATE of VALARIA
of article 17 (1)(d) of the Statute is in addition to the gravity-driven selection of the crimes
included within the material jurisdiction of the Court indicates that the relevant conduct must
present particular features which render it especially grave.53 The PTC has emphasised that
merely because a case addresses one of the most serious crimes for the international
community as a whole is not sufficient for it to be admissible before the Court. 54
28. It is the State’s submission that in the present case, Bannister’s alleged conduct and the impact
of such actions, if any, does not satisfy either the quantitative and qualitative elements
important for determining the case as one of ‘sufficient gravity’. 55 The quantitative analysis
is thus performed by “considering the number of victims in comparison to other situations
under its scrutiny”.56 While the qualitative factors are the scale of the alleged crimes
(including assessment of geo-graphical and temporal intensity) 57 and the impact of the
crimes. Additionally, in case of individual criminal responsibility, gravity encompasses the
degree of participation in its commission.58 The State, in the course of its submissions will
prove that the present criterions are not sufficiently satisfied.
I. I.I C.. THE INCIDENTS CHARGED DO NOT MEET THE QUANTITATIVE

PORTION OF THE GRAVITY TEST.
29. The State moves to submit that the relevant conduct must present particular features which
render it especially grave. 59 In consonance with the above observation, the number of victims
has also been considered important by the PTC, for instance in its decisions to authorise
investigations.The former Prosecutor of the ICC in his decision on an Article 15
communication concerning Iraq held that his office would not initiate, proprio motu, an
investigation when the casualties were not of the “order” of those affected by the “long-
running conflicts in Northern Uganda, the Democratic Republic of Congo and Darfur”; i.e.,
upwards of thousands of deaths and rapes conducted over years with a large geographical
53Supra at 66, para 46

54 Ibid, para 42; see also: The Prosecutor v. Abu Garda, Pre-Trial Chamber I, para. 30, Situation in the Republic of Côte
d’Ivoire, Pre- Trial Chamber III, para 203
55Situation in the Republic of Côte d’Ivoire, Pre- Trial Chamber III, para 203
56ICC, OTP Response to communications received concerning Iraq, para 9-10
57 Prosecutor v. Charles Blé Goudé, Pre-Trial Chamber I, para 16
58 OTP, International Criminal Court, "Paper on some policy issues before the Office of the Prosecutor", (2003), page 7
59 Supra note 66,para 46
30
STATE of VALARIA
span. 60 The prosecution has claimed that Ms. Bannister’s acts of omission and providing
means to incite genocide is responsible for 1500 Starek deaths.With utmost respect to the
victims of this case and their individual suffering, the Defence submits that the numbers of
casualties attributed and the apparent impact of the coded statements on Stratosphere do not
meet the requisite gravity threshold.
30. Additionally, a pertinent fact is that the deaths occurred as a result of acts committed through
the means of cyberspace61, over which jurisdiction is contested. 62 Hence it is submitted that
while the number of victims is not the only element to be considered in determining gravity 63,
it is still an essential prerequisite. Therefore, the PTC has acted erroneously in this regard.
I.I D.. QUALITATIVE REQUIREMENTS OF THE GRAVITY THRESHOLD ARE

NOT SATISFIED
31. It has been observed that gravity plays an important role, both in the selection of a situation
and in the selection of a case. 64 There exist mainly two different qualitative approaches
towards the gravity assessment. ICC’s practice indicates that i) assessment of the gravity of a
situation also includes the suspect’s role or rank and ii) assessment of the gravity of a case
considers the crimes themselves and the victims’ perspective. 65 However, neither approach
has actually provided standards or a definition of sufficient gravity but only
factors/criteria/elements to be considered. 66 Thus, both the approaches will be considered
herein.
i) It is submitted that the prosecutor has erred in the selection of this particular
situation. This is because the factors to be considered in determining gravity at this
stage are lacking vis a vis Article 53(b) & (c)67 along with Rule 48.68 These factors,
60
ICC-OTP, Response to Communications Received Concerning Iraq (2006)
61
Case, para 7-12, 15,17
62 David R Johnson & David B Post, 'Law and Borders: ‘The Rise of Law in Cyberspace' (1996) 48 Stan L Rev 136
63Prosecutor v. Abu Garda, Pre-Trial Chamber I, para 31
64 Megumi Ochi, “Gravity Threshold Before The ICC: An overview of the Court’s practice” (2016), page 14
65 Ibid, page 14
66 Ibid, page 17
67 Statute, Art 53(b)&(c)
68 Rules of Procedure and Evidence, Rule 48
31
STATE of VALARIA
inter alia, consist of the position of the person against whom the Prosecution
requests the initiation of a case the roles such persons play, through acts or
omissions and their alleged role in the violence, namely inciting, planning,
financing, colluding with criminal gangs and otherwise contributing to the
organization of the violence. 69
32. In the present situation, Bannister is the owner and CEO of a social network company. 70 It is
essential to understand the functioning of the Statusphere. It is premised on users being able
to protect their identity by using a fictional name to post in groups, that are ‘members only’. 71
The messages posted on these groups are coded and need to be interpreted by the content
monitors. This proves to be difficult at times due to the difference in dialects.72 As for her role
in the attacks, there is no evidence that points towards any involvement in any of the attacks
through inciting, planning, financing, colluding with the Dragos extremist groups and
otherwise contributing to the organization of the violence. In fact, she has attempted to
remove each and every offending group 73 at the earliest while being mindful so as to not
encroach upon the right to free speech and expression in order to curb or punish derogatory
or repulsive speech.74 It is important to note that the superior is not “obliged to do the
impossible.”75 The alleged conduct, i.e. the commission of the crimes occurred in the
anonymous environment of cyberspace, where owing to the fact things are not necessarily
separated from one another by any physical boundaries, no physical jurisdiction has a more
compelling claim than any other to subject these events exclusively to its laws. 76 Thus, due to
the improbability of her role in inciting, and planning the attacks along with the jurisdictional
barriers in cyberspace, she cannot be regarded as the person who can most effectively prevent
or stop the commission of the above mentioned conduct.
ii) It is submitted that upon consideration, the criterions that need to be fulfilled for
a case to have sufficient gravity are not satisfied. With respect to scale, the conduct
69 Situation in the Republic of Kenya, Pre-Trial Chamber II, para 198

70 Case, para. 6
71 Case, Appendix I
72 Case, para 12
73 Case, para 17
74 Richard Ashby Wilson and Matthew Gillett, “The Hartford Guidelines on Speech Crimes in International Criminal
Law” (2019), para 27
75
Ibid, para 211
76 Marco Roscini, ‘Gravity in the Statute of the ICC and cyber conduct that constitutes, instigates , facilitates the
International Crimes’ (2019)page 17
32
STATE of VALARIA
which is the subject of a case must be either systematic (pattern of incidents) or

large-scale77. Large scale implies geographical and temporal intensity.
Geographical intensity indicates that the conduct is spread over a wide
geographical area. For instance, In the Mejakić case, it was held that the crimes
charged while serious, were “limited in geographical and temporal scope. Hence,
they do not necessarily require the case to remain at the Tribunal. 78 In the present
case, the attacks against the Starek population were confined to the worship
centres, community trailer parks, concerts, fairs, sporting events, all located at the
foot of ‘The Stony’ mountains, east of Solantis. 79This clearly implies absence of
geographical scope.
33. “Systematic” emphasizes the organised character of the acts of violence and the improbability
of their random occurrence.80 In this case, the attacks against the Stareks were spontaneous
and not premeditated. Inadvertent posts on various Dragos extremist groups prompted the
ensuing violence. This court has previously held that and if isolated instances of criminal
activity were sufficient, there would be no need to establish an additional gravity threshold. 81
34. With respect to the nature of the crimes and the manner of commission, the state submits that
the attacks committed against the Stareks including the ‘Election Day Massacre’ and the
attack outside the worship centre, though grave, is a failure of the law and order system in
Solantis. The site of these attacks was in Solantis. Additionally, prosecutions against members
of Dragos for incitement and attempted genocide as well as crimes against humanity and
ordinary murder are already taking place pursuant to national law. 82 Hence, these attacks can
neither be attributed to the defendant nor the State of Valaria. It is submitted that the impact
of these attacks on the international community vis a vis the increased vulnerability of victims,
the terror subsequently instilled, or the social, damage inflicted on the affected communities 83
is not substantial enough to warrant international intervention. This is because the nature of
77 Supra note 66
78Prosecutor v. Mejalić, para 21
79 Case, para. 4
80 The Prosecutor v. Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić, Berislav Pušić,
para 41
81 Supra note 66 para. 46
82 Case, para 19
83 Policy paper on case selection and prioritisation (2016)
33
STATE of VALARIA
the attacks against the Starek population, though grave, have not had any known economic
and environmental damage on the affected community. Furthermore, they reflect the
inadequacy of the law and order system of a State Party84 rather than an attempt to incite
genocide through the conduct of a foreign national of a Non-State Party.
35. Thus, the defence concludes that the relevant quantitative and qualitative criterions have not
been met in the present case. Consequently, it requests the Appeals Chamber to declare the
case as ‘inadmissible’ on account of insufficient gravity, in keeping with the provisions of the
Rome Statute.
II. THERE ARE NO SUBSTANTIAL GROUNDS TO BELIEVE ONE OR MORE POSTS BY

THE DRAGOS GROUP MADE ON STATUSPHERE CONSTITUTE DIRECT AND PUBLIC
INCITEMENT OF GENOCIDE
1. It is the submission of the State of Valaria that the Trial Chamber erred in stating that the posts
on Statusphere amounted to direct and public incitement to genocide [1] and that such a finding
would violate the internationally recognised Right to Freedom of Speech [2].
II. A.POSTS ON STATUSPHERE DO NOT AMOUNT TO A DIRECT AND PUBLIC

INCITEMENT OF GENOCIDE
2. The Statute85 mandates that the incitement of Genocide must be direct and public. The posts
on Statusphere do not classify as direct and public incitement of genocide.
i. The posts on Statusphere do not classify as direct incitement:

3. An immediate criminal reaction to a message is a direct call to Genocide 86. The individuals
behind such messages are required to have genocidal intent themselves 87. The ICTR has
previously stated the messages must be analysed with respect to the dialect and language in
84 Case, para 17
85 Statute, art. 25(3)(e)
86
Otto Triffterer, Kai Ambos ,“The Rome Statute of the International Criminal Court- A Commentary” (3rd ed 2016),
para 37
87 Prosecutor v Nahimana, Trial Chamber, para 1012
34
STATE of VALARIA
which they are made, as there is a possibility of messages being comprehended differently in
different regions 88.
4. The posts on the Dragos group on Statusphere, do not invoke an immediate criminal response
from viewers. The messages do not meet the stringent standard of genocide, as the users display
no intent to destroy. Further, the dialects of the two countries possess certain differences. It
can be adduced that the messages on the group were understood differently by users in Solantis
due to their dialect. The Defendant and her team believed the messages to be harmless in the
Valarian dialect89.
ii. The posts on Statusphere do not classify as public incitement:
5. The factors established in the Akayesu judgement 90 are stated to be of utmost importance when
deciding whether incitement is public91. The ICTR has stated that it is important to consider
the place of incitement92 including whether a limit and select audience was present 93. The
ICTR, has confirmed that if the audience was select or limited 94, it is considered to be a private
audience95. A message broadcasted on a member restricted website and on a group of selected
people is a private message. 96 When speech is posted onto a medium that can be accessed
without limitation, such as without a password or membership, is when it can be said to be
publicly broadcast.97
6. It has been established that Statusphere is a membership restricted social networking site. Posts
on the website can be viewed solely by those who have signed up to be part of the network.
Further, posts on specific groups can be viewed by an even narrower and select audience. The
88
Prosecutor v Akayesu, Trial Chamber, para 557
89
Case, para 4 and page 11
90
Supra, note 88, para 556
91 Brendan Saslow, “Public Enemy: The Public Element of Direct and Public Incitement” (2016), page 431
92 Supra, note 88, para 556
93 Id
94 Callixte Nzabonimana v. The Prosecutor, Appeals Chamber, paras 231 and 384
95 Prosecutor v. Callixte Kalimanzira, Trial Chamber, para 515
96 Supra, note 91, page 431
97 Id
35
STATE of VALARIA
posts were made on groups with a select audience and are thus considered to be private.
Messages on a private group on Statusphere are limited to its members 98. It can be affirmed
that the posts made cannot amount to public incitement owing to their selected viewership.
The decision of the Trial Chamber considering the posts as public would damage the integrity
of the proceedings.
7. Additionally, the State moves to argue that in the event that the messages are adjudged as being
either direct or public, it is necessary that both factors be established. The Statute states that
only when incitement is both direct and public can an individual be held criminally
responsible99. Hence, the ‘direct’ and ‘public’ requirements are not exclusive of each other 100.
If the posts are considered to be direct the Chamber must note that they definitely do not meet
the standard of public incitement as per the reasons mentioned above.
iii. Ethinc hatred differs from directly and publicly inciting genocide:
8. A call to genocide101 or genocidal speech 102 has been differentiated from ethnic hatred.
Individuals can not be held liable for speech that does not call for genocide 103. An insight into
the travaux preparatoires of the Genocide Convention makes it clear that representatives
agreed to criminalize only direct and public calls to genocide and not hate speech and
propaganda104. It is possible for hate speech to constitute as other crimes requiring a lower
mens rea, such as the crime against humanity of persecution 105, however ethnic hatred
disseminated in the form of hate speech is inadequate to classify as incitement to genocide as
was emphasized in the Media case106.
98 Case, page 9
99 Statute, 25(3)(e)
101 Nahimana v The Prosecutor, Appeals Judgement, para 692
102 Shannon Fyfe, “Tracking Hate Speech Acts as Incitement to Genocide in International Criminal Law” (2017), page
524
104 Travaux preparatoires of the Genocide Convention, UN Doc. E/794, page 23
105 Prosecutor v. Kupreškić et al., Trial Chamber, para. 636
36
STATE of VALARIA
9. Hate speech must be considered in the context of which the acts were committed 107. The posts
on Statusphere are devoid of an intention to incite the vicious act of genocide. Since the acts
committed by the Nothroki constitute random attacks not including an intent to cause
destruction of the Starek group, it can be stated that the posts represented hate speech or
possibly other lesser crimes. The posts do not display the requisite mens rea and dolus specialis
required to incite genocide. It would be gravely errnous to classify posts displaying ethnic
hatred and hate speech as those of genocide or as those directly and publicly inciting genocide.
II. FREEDOM OF SPEECH

10. Statute mandates the Court to interpret the law in consonance with internationally recognized
human rights 108. The Trial Chamber’s decision violates the Freedom of Speech of the users of
Statusphere [i].
i. Freedom of Speech
11. Freedom of Speech is an internationally recognized human right 109. The Universal Declaration
of Human Rights has established that individuals have the freedom to recieve or impart
opinions and information through media110 and or other mediums of one’s choice111, including
across frontiers112. Individuals cannot exercise basic civil and political rights without access to
information and freedom to express their views113. The Right to Freedom of Speech and
Expression is essential for an individual’s dignity 114.
12. As a nation with strong democratic ideals 115, the State of Valaria does not believe in curbing
freedom of speech and expression of its citizens. It holds this right, amongst others, as being
of extreme importance in maintaining a strong democracy. Additionally, a community
107 Richard Ashby Wilson, Matthew Gillett, “The Hartford Guidelines on Speech Crimes in International Criminal
Law” (2019), para 116
108 Statute, art. 21(3)
109 UDHR, Preamble
110 Ibid, Article 19
111 Inter-American Convention on Human Rights, article 13(1)21
112 Declaration of Principles on Freedom of Expression in Africa, African Commission on Human and Peoples’ Rights,
32nd Session, Banjul, The Gambia
115 Case, para 5
37
STATE of VALARIA
standards policy has been installed by the Defendant through which posts that display a threat
to security are removed from the website116.
13. The State believes that Solantis should have taken the steps required to ban the usage of
Statusphere if it was of the view that the violence in its country could be linked to the website.
On failing to take the requisite steps, it has decided to hold the Defendant and the State of
Valaria responsible.
14. In expressing their ideas and opinions on Statusphere, users must not face discriminatory
censorship of speech that infringes on their Right to Freedom of Speech and Expression. The
freedom to express their opinions is a right that Statusphere wishes to offer its users and is in
consonance with the laws of Solantis.
15. Thus, the Court must not infringe on the freedom of expression in order to curb or punish
derogatory or repulsive speech117.
III. CERSEI BANNISTER IS NOT CRIMINALLY LIABLE UNDER ART. 25(3)(E)

AND ART. 25(3)(C)
III. A. CERSEI BANNISTER’S CONDUCT DOES NOT AMOUNT TO DIRECT AND

PUBLIC INCITEMENT UNDER ART. 25(3)(E)
1. Art 25 (3)(e) pertains to individual criminal responsibility which results in the direct and
public incitement to genocide118. Owing to the lack of ICC precedent the counsel of the state
of Valaria relies on the ICTR which first laid down the elements of direct and public
incitement to genocide in Akaseyu 119. These elements were subsequently endorsed in ensuing
ICTR cases120. In the present case, the accused cannot be held accountable under Art. 25(3)(E)
as she does not satisfy the requisite actus rea and means rea.
116 Case, para 9

118 Statute, art. 25
119 Prosecutor v. Akayesu, Trial Chamber
120 Prosecutor v. Rutaganda, Trial Chamber, para 38; Prosecutor v. Ruggiu, Trial Chamber, para 13; Prosecutor v.
Bagilishema, Trial Chamber, para 51; Prosecutor v. Nahimana, Trial Chamber, paras 1013, 1015; Prosecutor v. Muvunyi,
38
STATE of VALARIA
i. Actus Rea
2. The actus rea of incitement is satisfied when the elements of “direct” and “public” are proved.
The posts by the Dragos group on the social network platform does not fulfil this criteria as
illustrated in para __. Assuming arguendo that the criteria is proved by the prosecution,
Bannister cannot be held accountable as she did not possess the requisite mens rea.
ii Mens Rea
a. Cersei Bannister is not criminally responsible for the posts made by the
Dragos members
3. The posts made on Statusphere were generated by Dragos Members and not actively by the
accused. Despite the Media Trial case stating that that editors/publishers can be held
responsible for the media they control, their accountability is subject to the bona fide nature
of the same.121 Statusphere headquartered in the capital city of Valaria operates as a source of
information for the citizens of Valaria and Solantis to obtain news, weather forecasts, and
government information. It was launched by Bannister as a social network platform 122.
Moreover, Statusphere has community standard policy community standards policy against
posts which pose a threat to the safety of the public123. The role of the company does not
suggest to being a platform for inciting genocide and is therefore bona fide in nature.
i. Cersei Bannister does not have the specific intent to incite genocide
Trial Chamber, para 500; Prosecutor v. Kalimanzira, Trial Chamber, paras 509, 510; Bikindi v. Prosecutor, Appeals
Chamber, para 146
121 Nahimana v. Prosecutor, Appeals Chamber, para 705
122
Case, para 6
123 Case, para 9
39
STATE of VALARIA
4. The act of incitement to genocide must be accompanied with the specific intent of the
inciter124. Specific intent is to “intent to destroy in whole or in part” the targeted group”.125
Specific intent is inferred from facts and evidence which surrounds the alleged offences 126.
5. There is no evidence in the present case to prove specific intent. Derogatory statements have
been used as evidence to infer specific intent however these were invariably in tandem with
conduct and frequent positive action of the accused which explicitly implied specific intent 127.
6. Even though Bannister spoke unfavourably of the alleged targeted group it cannot constitute
as specific intent. Moreover, ethnic bias does not necessarily prove genocidal intent 128. In the
Brdanin Trial judgement, the accused explicitly and repeatedly derided and denigrated the
targeted group. The tribunal still held that, “they do not allow for the conclusion that the
Accused harboured the intent to destroy...”129.
7. Further, the accused’s intent should also be evident from his conduct along with his words
and deeds 130. In the present case, the accused’s conduct is in clear contrast of possessing
specific intent. She acted in adherence to the laws of Valaria. She also acted in adherence to
the Statusphere policy in the functional capacity of the CEO and controlling owner 131. Further,
124 Nahimana v. Prosecutor, Appeals Chamber, para 677; Prosecutor v. Akayesu, Trial Chamber, para. 560; Prosecutor
v. Muvunyi, Trial Chamber, p. 29. Nzabonimana v. The Prosecutor, Appeals Chamber, para 121; Kalimanzira v.
Prosecutor, Appeals Chamber, para 155; Bikindi v. Prosecutor, Appeals Chamber, para 135; Prosecutor v. Niyitegeka,
Trial Chamber, para 431; Prosecutor v. Ruggiu, Trial Chamber, para 14; Nchamihigo v. Prosecutor, Appeals Chamber,
para 61
125 Prosecutor v. Al Bashir, Pre- Trial Chamber I, para 139

126 Gacumbitsi v. Prosecutor, Appeals Chamber, para. 40; Prosecutor v. Krstić, Appeals Chamber, para. 34; Nahimana v.
Prosecutor, Appeals Chamber, para. 524; Prosecutor v. Simba, Appeals Chamber, para. 264; Prosecutor v. Rutaganda,
Trial Chamber, paras 61-63; Prosecutor v Musema, Trial Chamber, para 167; Prosecutor v Semanza, Trial Chamber, para
313; Prosecutor v Bagilishema Trial Chamber, , para 63; Prosecutor v. Brđanin, Trial Chamber, para. 704; Prosecutor v
Mpambara, Trial Chamber, para 8; Prosecutor v Muvunyi, Trial Chamber, para. 480; Prosecutor v Muhimana, Trial
Chamber, para 496
127 Prosecutor v. Muhimana, Trial Chamber, para. 496; Prosecutor v. Stakić, Appeals Chamber, para. 52; Prosecutor v.
Kajelijeli, Trial Chamber, para. 806; Prosecutor v Gacumbitsi, Trial Chamber, para. 253; Prosecutor v Kayishema, Trial
Chamber, para. 93
128 Prosecutor v. Stakic, Appeals Chamber, para. 52
129 Prosecutor v. Brđanin, Trial Chamber, paras. 985–988

130 Prosecutor v. Bagilishema, Trial Chamber, para 63; Prosecutor v. Kajelijeli, Trial Chamber, para 807
131 Case, para 10, 13
40
STATE of VALARIA
she publicly stated that when the Dragos advocate immediate violence their access to
Statusphere would be barred 132. Her conduct does not prove general intent let alone specific
intent. Therefore, circumstantial evidence undeniably proves that Bannister did not possess
specific intent.
ii. Cersei Bannister does not possess the mental element as per Art. 30
8. The ICTR has been at the forefront in interpreting incitement to genocide. Its jurisprudence
has consistently been a source for the ICC and owing to Art. 22 of the Rome Statute the
importance of specific intent as a prerequisite can be derived. Alternatively, since art 25(3)(e)
does not explicitly provide for the need of specific intent, it may lead to the application of
Art.30. Eser argues that under the Rome Statute there isn’t a requirement of specific intent
and general intent would suffice133.” However, this view has been heavily contested 134
considering the nature of genocidal incitement. Moreover, even this standard of intent and
knowledge will not be satisfied in this case.
9. The circumstantial facts of the situation are used to infer intent and knowledge of the
accused.135 As illustrated above the conduct of the accused does not even suggest a general
intent of inciting an audience let alone a specific intent. Considering, she took positive action
to deter the posts, the intent threshold of “meaning to engage in the conduct” as specified
cannot be applied.
10. "Knowledge" is defined as awareness that a circumstance exists or a consequence will occur
in the ordinary course of events according to Art. 30 136. The events on 16th June 2019 and 6th
132 Case, Appendix 1, page 11

133 Eser, Chapter: Individual Criminal Responsibility, A Cassese, P Gaeta, J.R.W.D. Jones, The Rome Statute of the
International Criminal Court: A Commentary, Oxford University Press (2002), Pg. 806
134 Otto Triffterer, Kai Ambos, Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes,
Article by Article, Hart Publishing (2016), p. 1018, para. 39; Gideon Boas, James L. Bischoff, Natalie L. Reid, Elements
of Crimes under International Law, International Criminal Law Practitioner Library - Vol. 2, Cambridge University Press
(2009), p. 193; Kai Ambos, Treatise on International Criminal Law Volume I- Foundations and General Part, Oxford
University Press (2013), p. 170
135 Prosecutor v Bemba, Pre- Trial Chamber II, para 137
136 Statute, art. 30.
41
STATE of VALARIA
November, 2019 which allegedly occurred due to the posts on Statusphere were in the
Valarian dialect of Solantis which differs from the Valarian dialect of Valaria 137. On grounds
of this discrepancy the Statusphere content monitors incorrectly interpreted the meaning of
the posts138. Unaware about the meaning of these statements, Cersei Bannister could not have
inferred that the consequence of the attacks would occur in the ordinary course of events. The
accused can intend her conduct only when the she possesses knowledge of the circumstances
which would categorize the action as prohibited. Hence, ‘intent’ can only exist with the
imperative element of ‘knowledge’ 139. Hence, Cersei Bannister does not have the necessary
mens rea even as per Art. 30.
11. Moreover, Valaria is a party to the Convention on the Prevention and Punishment of the Crime
of Genocide140. As per, Art. 5 parties have an obligation to enact legislation which gives
effects to the provisions of the convention 141. The convention criminalises direct and public
incitement to commit genocide142. Therefore, the state of Valaria has correctly not
criminalised the conduct of Cersei Bannister and the State conclusively submits that she is not
liable under Art. 25(3)(e).
A. III. B. CERSEI BANNISTER IS NOT CRIMINALLY RESPONSIBLE UNDER ART.

25(3)(C) FOR PROVIDING THE MEANS TO INCITE GENOCIDE BY ALLOWING USERS
TO POST STATEMENTS THAT MAY CONSTITUTE INCITEMENT TO GENOCIDE AND
FAILURE TO IMMEDIATELY REMOVE AND BLOCK SUCH POSTS.
12. It is humbly submitted before this honourable court that the defendant Cersei Bannister is not
criminally responsible for aiding and abetting the commission of the crime of Genocide by
the Nothroki against the Starek Population in Solantis.
13. The Individual Criminal Responsibility for facilitating the commission of such a crime (as
genocide), aiding, abetting or otherwise assisting in its commission or its attempted
137 Case Para 4, Appendix 1. Page 10- 11.

138 Case Para 12, Para 16.
139 Otto Triffterer, Kai Ambos, Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes,
Article by Article, Hart Publishing (2016), pg 1121 para 19.
140 Case Para. 3.
141 Convention on the Prevention and Punishment of the Crime of Genocide. Art. 5.
142 Convention on the Prevention and Punishment of the Crime of Genocide. Art. 3(c).
42
STATE of VALARIA
commission, including providing the means for its commission is stated in Article 25 of the
Rome Statue 143
i. Cersei Bannister has not contributes to the violence against the Stareks and is thus not criminally liable for
aiding and abetting
14. To incur criminal responsibility the aider and abettor must, with her contribution, fulfil the
following three criterion:
a. “Create and increase the risk that the crime be committed and thereby fundamental
legal interests violated (Risikoerhöhung).144
b. The risk must be realized through the commission of the (main) crime
(Risikorealisierung) or, in other words, the risk-creation or increase must be causal for
the commission of this crime (kausale Risikosteigerung).
c. The risk created or increased must be disapproved by the legal order, i.e., it must be a
forbidden risk (Risikomißbilligung).”145
15. In the case Akayesu, despite finding Akayesu to be guilty of genocide as a principal
perpetrator, the court also took the position that a perpetrator lacking specific genocidal intent
could nevertheless be guilty of complicity in genocide for knowingly aiding or abetting a
principal who does possess the requisite intent.146 Additionally, any form of physical or moral
support which contributes substantially to the commission of a crime is also under the ambit
of aiding and abetting.147
143 Statue, 25(3)(c)
144 Prosecutor v. Bemba, Pre Trial Chamber II, Para. 435;
145 Kai Ambos, Treatise on International Criminal Law, Page 165

146 The Prosecutor v. Jean-Paul Akayesu, Trial Chamber, para. 540.
147 Prosecutor v. Georges Anderson, Trial Chamber, para. 43; Prosecutor v. Musema, Trial Chamber, paras. 125–6;,
Prosecutor v. Ignace Bagilishema, Trial Chamber para. 33; Prosecutor v. Laurent Semanza, Trial Chamber, para. 385;;
Prosecutor v. Jean de Dieu Kamuhanda, Trial Chamber, para. 597.
43
STATE of VALARIA
16. The defendant had in no way acted in her capacity to contribute to the crimes against the
Stareks, neither had she made any public statements supporting or endorsing the violence
against the Stareks. The interview with Jonah Morman of Solantis Gazette 148 has not been
stated as published in the public. There wasn’t a way for the users of Statusphere to know that
by providing a social network such as Statusphere which is widely also used for news, weather
forecasts and government information 149, Cersei was advocating for violence against the
Stareks in Solantis.
17. ii. Bannister did not fail to act immediately to remove and block such posts It is important to
note whether or not an act or omission had a substantial effect on the commission of a crime
is a fact-based inquiry, 150 and further, this aspect of aiding and abetting by omission has been
interpreted to mean that had the accused acted the commission of the crime would have been
substantially less likely. 151
18. A Northroki extremis group committed to the ethnic purity of Solantis had been attacking
Stareks through random assaults. 152 These attacks had no correlation to Cersei’s social
network, Statusphere and have been in place since hundreds of years. 153 In addition to this,
once the call for violence was identified, the team of Statusphere had been increasingly
proactive in removing not only the post but the entirety of the group on which this call was
made. The content monitors not interpreting the ‘coded’ calls of violence does not result in an
omission, as they were still under monitoring. 154 The Dragos Group and its resulting violence
did not start on the platform Statusphere. 155
148 Case, Appendix 1
149 Case, Para 6
150 Prosecutor v. Mrkšić and Šljivančanin, Appeal Judgement, para. 200.
151 Ibid Para 97, 100; Šainović et al. Appeal Judgement, paras 1679, 1682, fn. 5510;
152 Case, Para 6
153 Case, Para 4
155 Case, Para 7
44
STATE of VALARIA
What is also pertinent to note is that the Rome Statute has no provision that criminalises omission that
criminalises omission. Thus no concept of omission liability exists. Hence, in arguendo if it is assumed that
the defendant did not act, she is still not liable tto be criminalised
I. iii. Bannister did not have a legal duty to immediately remove or block posts
19. The Appeals Chamber in Mrkšić & Šljivančanin has previously found that “the omission to
act where there is a legal duty to act can lead to individual criminal responsibility under Article
7(1) of the Statute”.156
20. The State of Valaria of which Cersei Bannister is a national has not yet ratified the Rome
Treaty157. Additionally, the domestic laws of Valaria do not criminalize the conduct of which
she is accused.158 As a citizen of Valaria, Cersei Bannister is bound by the laws of Valaria.
There is hence no legal duty or obligation on her to remove the posts.
21. In Jersild v. Denmark,159 he EcHR ruled in favour of the journalist, against the Supreme Court
of Denmark’s ruling stating that the journalist telecasting the racist views does not mean he
endorses the same contrary to the Supreme Court of Denmark stating that the defendant had
aided and abetted the dissemination of the statements.160
22. Similarly, Cersei giving her opinion on what the Dragos group does not mean that she has
aided and abetted the dissemination of the statements, especially since they came in after the
incidences of violence. 161 Her providing a platform for the Northroki to use and them using
it for inciting violence against the Stareks anonymously is also thus not something that Cersei
can be accordingly held complicit for.
23. It has been sufficiently proven that Cersei Bannister cannot be held criminally responsible ifor
inciting genocide under Article 25(3)(e) as she does not possess the Material or Mental
elements. Neither can the Defendant be held criminally responsible for providing the means
156 Prosecutor v. Naser Orić, Appeals Chamber, Para. 43; Prosecutor v. Radoslav Brđanin, Appeals Chamber, Para. 274;
Prosecutor v. Stanislav Galić, Appeals Chamber, Para. 175; Prosecutor v. Blagoje Simić, Appeals Chamber, fn. 259;
Blaškić, Appeals Chamber, paras 47-48, 663, fn. 1385;
157 Case, Para 3

158 Case, Para 18
159 Jersild v. Denmark, 298 Eur. Ct. H.R.
160 Ibid
45
STATE of VALARIA
to incite genocide under Article 25(3)(c) of the ICC Statute as she did not fail to immediately
remove or block the posts on Statusphere and neither had a legal duty to do the same.
46
STATE of VALARIA
SUBMISSIONS
Wherefore in light of the issues raised, arguments advanced and authorities cited, the State of
Valaria respectfully requests this Chamber to adjudge and declare that:
1. The Court does not have jurisdiction in this case under Article 12 and the present case is
inadmissible under Article 17(1)(d) of the Statute
2. Reverse the PTC’s decision that one or more posts on Statusphere constitute direct and
public incitement of genocide.
3. Reverse the PTC's determination that Cersei Bannister can be held liable for incitement to
genocide and aiding the commission of the crime
On Behalf of the State

COUNSEL FOR THE STATE
47
STATE of VALARIA
48

Icc Moot Court Competition in The English Language 2020 The Counsel For The State of Valaria

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STATE of VALARIA

ICC MOOT COURT COMPETITION

IN THE ENGLISH LANGUAGE

THE COUNSEL FOR THE STATE OF VALARIA

Team Number: 129

Total Word Count: 9275

Original: English Date:

THE APPEALS CHAMBER

SITUATION RELATED TO GENOCIDE IN SOLANTIS

I. ICC DOES NOT HAVE THE JURISDICTION TO PROSECUTE CERSEI 24

A.NON APPLICATION OF PRINCIPALS OF INTERNATIONAL CRIMINAL 24

B. ABSENCE OFA REAL OR SUBSTANTIAL LINK BETWEEN ALLEGED 26

D. EXERCISE OF JURISDICTION IN CYBERSPACE 28

A.THE CASE AGAINST THE MEMBERS OF DRAGOS CONTRAVENES THE 31

B.. THE IMPACT OF THE CODED STATEMENTS IS NOT SUFFICIENT TO 32

C..THE INCIDENTS CHARGED DO NOT MEET THE QUANTITATIVE

UALITATID.. QUALITATIVE REQUIREMENTS OF THE GRAVITY THRESHOLD ARE

II. THERE ARE NO SUBSTANTIAL GROUNDS TO BELIEVE ONE OR MORE

A.POSTS ON STATUSPHERE DO NOT AMOUNT TO A DIRECT AND PUBLIC

III.CERSEI BANNISTER IS NOT CRIMINALLY LIABLE UNDER ART. 25(3)(E)

CERSEI BANNISTER’S CONDUCT DOES NOT AMOUNT TO DIRECT AND

CERSEI BANNISTER DID NOT HAVE A LEGAL DUTY TO IMMEDIATELY

CEO Chief Executive Officer

CUP Cambridge University Press

ECHR European Court on Human Rights

EJIL European Journal of International Law

Et al et alia “and others”

FRY Federal Republic of Yugoslavia

ICC International Criminal Court

ICJ International Court of Justice

ICCPR International Covenant on Civil and Political Rights

ICTR The International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former Yugoslavia

ILC International Law Commission

IMT International Military Tribunal

JCSL Journal of Conflict and Security Law

NMT Nuremberg Military Tribunal

OTP Office of the Prosecutor, International Criminal Court

PCA Permanent Court of Arbitration, Island of Palmas

PCIJ Permanent Court of International Justice

PTC Pre-Trial Chamber

UDHR The Universal Declaration of Human Rights

UNGA United Nations General Assembly

UNHRC United Nations Human Rights Council

UNSC United Nations Security Council

UNTS United Nations Treaty Series

TREATIES AND CONVENTIONS

INTERNATIONAL CRIMINAL COURT

The Prosecutor v. Abu Garda, Pre- Trial Chamber I

Prosecutor v. Al Bashir, Pre-Trial Chamber I

Prosecutor v. Al Bashir, Pre-Trial Chamber I, Decision on the Prosecution's

Prosecutor v. Bemba, Pre- Trial Chamber II

Prosecutor v. Bemba, Pre- Trial Chamber III

Prosecutor v. Katanga, Trial Chamber II

Prosecutor v. Mbarushimana, Appeals Chamber

Situation in the Republic of Côte d’Ivoire, Pre-Trial Chamber III

Situation in Democratic Republic Of Congo

Situation in the Republic of Kenya, Pre-Trial Chamber II,

Situation in the Republic of Kenya, Pre-Trial Chamber II,

The Prosecutor v. Ntaganda, Pre-Trial Chamber I

The Prosecutor v. Ntaganda, Trial Chamber VI

The Prosecutor v. Simone Gbagbo, Pre-Trial Chamber II