Team 34 - Counsel For The Prosecutor

COUNSEL FOR THE PROSECUTOR
Team 34 – Counsel for the Prosecutor
ICC Moot Court Competition in the English language
2020
Total word count: 9,957
2
Original: English Date: 16 March 2020
THE APPEALS CHAMBER
SITUATION IN VALARIA
IN THE CASE OF
THE PROSECUTOR V CERSEI BANNISTER
Counsel for the Prosecutor’s Submission in the Appeal from Pre-

Trial Chamber VI’s Decision on the Confirmation of Charges
against Defendant Cersei Bannister of Valaria
2
TABLE OF CONTENTS
I. PRELIMINARY OBSERVATIONS.......................................................................................... 21
A. Standard of Review ............................................................................................................. 23
II. THE PTC DID NOT ERR IN FINDING SUFFICIENT EVIDENCE TO ESTABLISH
SUBSTANTIAL GROUNDS TO BELIEVE THAT POSTS MADE ON 16 JUNE AND 7
NOVEMBER 2019 CONSTITUTED DPI TO GENOCIDE UNDER ARTICLE 25(3)(e) OF THE
STATUTE .......................................................................................................................................... 24
A. The impugned posts meet the legal standard for DPI to genocide pursuant to Article
25(3)(e). .......................................................................................................................................... 27
(1) The actus reus for DPI to genocide has been satisfied. ................................................... 27
(a) The posts directly incited genocide. ............................................................................. 27
(b) The posts publicly incited genocide. ............................................................................ 30
(i) The Statusphere groups can be accessed by the general public. .............................. 30
(ii) The audiences in the Dragos Statusphere groups were not select or limited. .......... 31
(2) The mens rea for DPI to genocide has been satisfied. ..................................................... 32
(a) The Dragos members intended to directly and publicly incite genocide. .................... 32
III. THE PTC DID NOT ERR IN FINDING THAT THE DEFENDANT MAY BE CRIMINALLY
RESPONSIBLE FOR INCITEMENT TO GENOCIDE AND PROVIDING THE MEANS FOR
INCITEMENT ................................................................................................................................... 33
A. The PTC was correct in finding that Dr Bannister’s actions and omissions could amount to
direct and public incitement to genocide. ....................................................................................... 33
B. The PTC was correct in finding that Bannister’s conduct could constitute aiding, abetting
or otherwise assisting in the commission of incitement to genocide. ............................................ 36
(1) The actus reus for aiding, abetting or otherwise assisting has been satisfied. ................ 38
(2) The mens rea for aiding, abetting or otherwise assisting has been satisfied. .................. 38
IV. THE ICC HAS JURISDICTION TO PROSECUTE BANNISTER .......................................... 39
A. The transnational character of DPI to genocide committed in cyberspace allows the Court
to assert jurisdiction based on territorial jurisdiction ..................................................................... 40
2
(1) The transnational nature of DPI committed online permits the assertion of territorial
jurisdiction .................................................................................................................................. 41
(a) An element of the ‘incitement’ occurred in Solantis ................................................... 41
(b) The ‘public’ element of DPI to genocide partially occurred in Solantis ..................... 42
B. The Court has jurisdiction because of a cyberspace connection between Bannister’s actions
and the effects in Solantis ............................................................................................................... 43
2
LIST OF ABBREVIATIONS
¶ Paragraph
§ Section
AC Appeals Chamber
art. Article
Bannister Dr Cersei Bannister
CIL Customary international law
DPI Direct and Public Incitement
EC European Community
ECJ European Court of Justice
ECHR European Court of Human Rights
EOC Elements of Crimes
GC The Convention on the Prevention and Punishment of the Crime of Genocide
HRC Human Rights Committee
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
IHL International Humanitarian Law
ILC International Law Commission
IMT International Military Tribunal
OTP Office of the Prosecutor
PTC Pre-Trial Chamber
RPE Rules of Procedure and Evidence
Solantis The State of Solantis
Statute Rome Statute of the International Criminal Court
TC Trial Chamber
UN United Nations
UNHCHR United Nations High Commissioner for Human Rights
UNSC United Nations Security Council
U.S. United States
USSC United States Supreme Court
USCA 2d Cir United States Court of Appeals of the Second Circuit
2
Valaria The State of Valaria
VCLT Vienna Convention on the Law of Treaties
2
INDEX OF AUTHORITIES
International Instruments
‘EOC’ Elements of Crimes of the International Criminal Court (adopted

9 September 2002, entered into force 9 September 2002) ICC-
ASP/1/3
‘Genocide Convention’ Convention for the Prevention and Punishment of the Crime of
Genocide (opened for signature 9 December 1948, entered into
force 9 December 1948) 78 UNTS 277
‘ICCPR’ International Convention on Civil and Political Rights (opened

for signature 19 December 1966, entered into force 26 March
1976) 999 UNTS 171
‘ICJ Statute’ United Nations, Statute of the International Court of Justice, 18

April 1946.
‘ICTR Statute’ UN Security Council, Statute of the International Criminal

Tribunal for Rwanda (as last amended on 13 October 2006) 8
November 1994
‘Rome Statute’/ ‘the Statute’ Rome Statute of the International Criminal Court (opened for
signature 17 July 1998, entered into force 1 July 2002) 2187
UNTS 90
‘RPE’ Rules of Procedure and Evidence of the International Criminal

Court (adopted 9 September 2002, entered into force 9
September 2002) ICC-ASP/1/3
‘VCLT’ Vienna Convention on the Law of Treaties (opened for signature

22 May 1969, entered into force 27 January 1980) 1155 UNTS
331
UN Docs
‘UN Doc E/447’ ECOSOC ‘Draft Convention on the Crime of Genocide’ (26 June
1947) UN Doc E/447
2
‘UN Doc Preparatory Commission for the International Criminal Court
PCNICC/1999/DP.4/Add.3’ ‘Proposal Submitted by the United States of America’ (4
February 1999) UN Doc PCNICC/1999/DP.4/Add.3
ICJ Decisions
‘Arrest Warrant Case’ Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v Belg),
Judgment, 2002 I.C.J Rep. 3, 19 (Feb. 14, 2002)
ICC Decisions
‘Al Mahdi (confirmation of The Prosecutor v Ahmad al Faqi Al Mahdi (Decision on the
charges)’ confirmation of charges against Ahmad Al Faqi Al Mahdi) ICC-
01/12-01/15-Red, Pre-Trial Chamber I (24 March 2016)
‘Bemba et al AC’ The Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo

Musamba, Jean Jacques Mangenda Kabongo, Fidèle Babala
Wandu and Narcisse Arido (Judgment on the appeals of Mr Jean-
Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean
Jacques Mangenda Kabongo, Mr Fidèle Babala Wandu and Mr
Narcisse Arido against the decision of Trail Chamber VII
entitled “Judgment pursuant to Article 74 of the Statute”) ICC-
01/05-01/13-2275-Red, Appeals Chamber (8 March 2018)
‘Bemba et al TC’ The Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo

Musamba, Jean Jacques Mangenda Kabongo, Fidèle Babala
Wandu and Narcisse Arido (Judgment pursuant to Article 74 of
the Statute) ICC-01/05-01/13-1989-Red, Trial Chamber VII (19
October 2016)
‘Bemba TC’ The Prosecutor v Jean-Pierre Bemba Gombo (Judgement

pursuant to Article 74 of the Statute) ICC-01/05-01/08-3343,
Trial Chamber III (21 March 2016)
‘Blé Goudé (confirmation of The Prosecutor v Charles Blé Goudé (Decision on the
charges)’ Confirmation of Charges Against Charles Blé Goudé) ICC-
02/11-02/11-186, Pre-Trial Chamber I (11 December 2014)
‘Chui AC’ The Prosecutor v Matthieu Ngudjolo Chui (Judgment on the

Prosecutor's appeal against the decision of Trial Chamber II
2
entitled "Judgment pursuant to article 74 of the Statute") ICC-
01/04-02/12-271-Corr, Appeals Chamber (7 April 2015)
‘Kony et al AC’ The Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo,
Dominic Ongwen (Judgement on the appeal of the Defence
against the “Decision on the admissibility of the case under
article 19(1) of the Statute” of 10 March 2009) ICC-02/04-01/05-
408, Appeals Chamber (16 September 2009)
‘Lubanga (confirmation of The Prosecutor v Thomas Lubanga Dyilo (Decision on the

charges)’ confirmation of charges) ICC-01/04-01/06-803-tEN, Pre-Trial
Chamber I (29 January 2007)
‘Lubanga TC’ The Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to

Article 74 of the Statute) ICC-01/04-01/06-2842,
Trial Chamber I (5 April 2012)
‘Mbarushimana The Prosecutor v Callixte Mbarushimana (Decision on the

(confirmation of charges)’ confirmation of charges) ICC-01/04-01/10-465-Red, Pre-Trial
Chamber I (16 December 2011)
‘Mbarushimana PTC’ The Prosecutor v Callixte Mbarushimana (Decision on the

“Defence Challenge to the Jurisdiction”) ICC-01/04-01/10-451,
Pre-Trial Chamber I (26 October 2011)
‘Myanmar PTC’ Situation in the People’s Republic of Bangladesh/Republic of the

Union of Myanmar (Decision pursuant to Article 15 of the Rome
statute on the authorisation of an investigation into the situation
in the People’s Republic of Bangladesh/Republic of the Union of
Myanmar) ICC-01/19-27, Pre-Trial Chamber III (14 November
2019)
‘Ntaganda (response)’ The Prosecutor v Bosco Ntaganda (Response to Bosco

Ntaganda’s appeal against the decision denying leave to file a
“no case to answer motion”) ICC-01/04-02/06-1982, Appeals
Chamber (10 July 2017)
‘Ntaganda (Sentencing)’ The Prosecutor v Bosco Ntaganda (Sentencing Judgement) ICC-

01/04-02/06-2442, Trial Chamber VI (7 November 2019)
2
‘Ongwen (confirmation of The Prosecutor v Dominic Ongwen (Decision on the
charges)’ confirmation of charges against Dominic Ongwen) ICC-02/04-
01/15, Pre-Trial Chamber II (23 March 2016)
ICTR Decisions
‘Akayesu TC’ The Prosecutor v Jean-Paul Akayesu (Judgement) ICTR-96-4-T

Trial Chamber (2 September 1998)
‘Bikindi TC’ The Prosecutor v Simon Bikindi ICTR-01-72-T Trial Chamber (2

December 2008)
‘Kajelijeli TC’ The Prosecutor v Juvénal Kajelijeli ICTR-98-44A-T Trial

Chamber (1 December 2003)
‘Kalimanzira AC’ Callixte Kalimanzira v The Prosecutor ICTR-05-88-A Appeals

Chamber (20 October 2010)
‘Kalimanzira TC’ The Prosecutor v Callixte Kalimanzira ICTR-05-88-T Trial

Chamber (22 June 2009)
‘Karemera et al AC’ The Prosecutor v Édouard Karemera and Matthieu Ngirumpatse

ICTR-98-44-T Trial Chamber, (2 February 2012)
‘Kayishema and Ruzindana The Prosecutor v Clément Kayishema and Obed Ruzindana
AC’ ICTR-95-1-A Appeals Chamber (1 June 2001)
‘Kayishema and Ruzindana The Prosecutor v Clément Kayishema and Obed Ruzindana
TC’ ICTR-95-1-T Appeals Chamber (21 May 1999)
‘Media Case AC’ The Prosecutor v Ferdinand Nahimana, Jean-Bosco

Barayagwiza and Hassan Ngeze (Appeals Judgment) ICTR-99-
52-A Appeals Chamber (28 November 2007)
‘Media Case TC’ The Prosecutor v Ferdinand Nahimana, Jean-Bosco

Barayagwiza and Hassan Ngeze (Judgment) ICTR-99-52-T Trial
‘Muvunyi TC’ The Prosecutor v Tharcisse Muvunyi ICTR-00-55A-T Trial

Chamber (11 February 2010)
2
‘Ngirabatware AC’ Augustin Ngirabatware v The Prosecutor (Appeals Judgment)
MICT-12-29-A, Appeals Chamber (18 December 2014)
‘Ngirabatware TC’ The Prosecutor v Augustin Ngirabatware (Judgement and

Sentence) ICTR-99-54-T, Trial Chamber (20 December 2012)
‘Ngirabatware TC’ The Prosecutor v Augustin Ngirabatware ICTR-99-54-T Trial

‘Niyitegeka TC’ The Prosecutor v Eliézer Niyitegeka (Judgement and Sentence)

ICTR-96-14-T Trial Chamber (16 May 2003)
‘Nyiramasuhuko et al TC’ The Prosecutor v Pauline Nyiramasuhuko, Arsène Shalom

Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph
Kanyabashi and Élie Ndayambaje ICTR-98-42-T Trial Chamber
(24 June 2011)
‘Nzabonimana AC’ Callixte Nzabonimana v The Prosecutor ICTR-98-44D-A

Appeals Chamber (29 September 2014)
‘Ruggiu TC’ The Prosecutor v Georges Ruggiu (Judgement and Sentence)

ICTR-97-32-I Trial Chamber (1 June 2000)
European Court of Human Rights Decisions
‘Jersild v Denmark’ Jersild v Denmark, European Court of Human Rights, Judgment

of 22 August 1994
‘Sürek v Turkey’ Sürek v Turkey (No. 1) European Court of Human Rights,

Judgment of 8 July 1999
‘Zana v Turkey’ Zana v Turkey, European Court of Human Rights, Judgment of

25 November 1997
United States Decisions
‘ALCOA Case’ United States v Aluminium Company of America, 148 F.2d 416
(2d. Cir. 1945)
‘Barclays Bank Place’ Barclays Bank Plc. Franchise Tax Bd. of California, 512 U.S.
298 (1994)
2
‘EEOC v AAOC’ Equal Employment Opportunity Commission v Arabian
American Oil Company, 499 U.S. 244 (1991)
‘Extradition of John Matter of Extradition of Demjanjuk, 612 F. Supp. 544 (N.D.

Demjanjuk’ Ohio 1985)
‘Hartford Fire’ Hartford Fire Insurance Co. v California, 509 U.S. 764 (1993)
Other Decisions
‘Faurisson v France’ Robert Faurisson v France. Communication No. 550/1993, UN

Doc CCPR/C/58/D/550/1993 (1996)
‘Gencor Ltd’ Case T-102/96, Gencor Ltd v Commission of the European

Communities [1999] ECR II-753
‘Grossfillex-Fillistorf Grossfillex-Fillistorf, 1964 J.O (58) 915, 3 C.M.L.R. 237 (1964)
‘Lotus Case’ S.S. Lotus (Fr v Turk), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)
‘Mugesera’ Mugesera v Canada (Minister of Citizenship and Immigration)

[2005] 2 SCR 100
‘North Sea Finance Corp’ North South Finance Corporation v. A1-Turki, 100 F.3d 1046,
1052 (2d Cir. 1996)
‘Nuremberg Judgment’ Nuremberg Judgment, France and ors v Goring (Hermann) and
ors, Judgment and Sentence, [1946] 22 IMT 203, 1st October
1946, International Military Tribunal
‘Public Prosecutor v Taw Public Prosecutor v Taw Cheng Kong, 2 S.L.R. 410, Singapore
Cheng Kong’ Court of Appeal [1998]
‘Solicitor-General v Reid’ Solicitor-General v Reid [1997] 3 NZLR 617
‘Wood Pulp Case’ Ahlstrom Osakeyhtio And Others v Commission of The

European Communities: [1988] ECR 5193
‘Yahoo! 2000 Case’ LICRA et Union des Étudiants Juifs de France v Yahoo! Inc. et
Yahoo.Fr, Tribunal de Grande Instance de Paris, Ordonnance de
réferé du 20 novémbre 2000, 4
2
‘Yahoo! 2002 Case’ Tribunal de Grande Instance de Paris, Judgment of 26 February
2002, 17ème Chambre, Chambre de la Presse, No 0104305259
‘Yahoo! 2004 Case’ Timothy K et Yahoo! v Ministere Public, Judgment of 17 March

2004, 11ème Chambre, Chambre des Appels Correctionnels, No
03/01520
Domestic Statute
‘Australian Code’ Criminal Code Act 1995 (Cth), as published on 15 March 1995,
last amended on 13 December 2017
‘Chinese Code’ Criminal Law of the People’s Republic of China, as published on

1 July 1979, last amended on 14 March 1997
‘France Code’ Code Pénal, as published on 22 July 1992, last amended on 16

December 2016
‘Luxembourg Code’ Code de Procédure Pénale
‘Madagascar Code’ Code de Procédure Pénale, as published on 20 September 1962
‘Mexico Code’ Código Penal Federal (Mexico), as published on 14 August

1931, last amended on 21 February 2018
‘Rwandan Code’ Code Pénal du Rwanda
‘Serbian Code’ Criminal Code of the Republic of Serbia, as published 2005, last
amendment on 24 December 2012
‘Tajikistan Code’ Criminal Code of the Republic of Tajikistan, as published on 21

May 1998
Books
‘Abtahi Vol. 2 (2008)’ Hirad Abtahi & Philippa Webb, 2 The Genocide Convention:
The Travaux Préparatoires (Leiden, Boston: Martinus Nijhoff
Publishers, 2008)
‘Ashworth (1995)’ Andrew Ashworth, Principles of Criminal Law (Clarendon Press,

Oxford, 1995)
2
‘Boas et al (2007)’ Gideon Boas et al, International Criminal Law Practitioner
Library, Volume 2 – Elements of Crimes Under International
Law, (Cambridge University Press, 2007)
‘Brenner (2007)’ Susan Brenner, ‘The Council of Europe’s Convention on

Cybercrime’, in J.M. Balkin et al. (eds), Cybercrime: Digital
Cops in a Networked Environment (New York: NYU Press,
2007)
‘Lim (2007)’ Yee Fen Lim, Cyberspace Law Commentaries and Materials
(Oxford University Press, 2007)
‘Ryngaert (2008)’ Cedric Ryngaert, Jurisdiction in International Law, Oxford

Monographs in International Law (Oxford University Press,
2008)
‘Ryngaert Antitrust (2008)’ Cedric Ryngaert, Jurisdiction over Antitrust Violations in

International Law (Intersentia, 2008)
‘Schabas (2010)’ William A. Schabas, The International Criminal Court: A

Commentary on the Rome Statute (Oxford University Press,
2010) 439
‘Vagias (2014)’ Michail Vagias, The Territorial Jurisdiction of the International

Criminal Court (Cambridge University Press, 2014)
Journal Articles
‘Benesch (2008)’ Susan Benesch, Vile Crime or Inalienable Right: Defining

Incitement to Genocide, 48 Virginia Journal of International
Law, 63 (2008)
‘Freidberg (1991)’ James Freidberg, The Convergence of Law in an Era of Political

Integration: The Wood-Pulp Case and the ALCOA Effects
Doctrine, 52 University of Pittsburgh Law Review 289 (1991)
‘Johnson and Post (1996)’ David Johnson and David Post, Law and Borders – The Rise of
Law in Cyberspace, 48 Stanford Law Review, 1367 (1996)
2
‘Petrosian (2010)’ Tahlia Petrosian, Secondary Forms of Genocide and Command
Responsibility under the Statutes of the ICTY, ICTR and ICC, 17
Australian International Law Journal 29 (2010)
‘Saslow (2016)’ Brendan Saslow, Public Enemy: The Public Element of Direct
and Public Incitement to Commit Genocide, 48 Case Western
Reserve Journal of International Law, 417 (2016)
‘Vagias (2016)’ Michail Vagias, The Territorial Jurisdiction of the ICC for Core
Crimes Committed Through the Internet, 21(3) Journal of
Conflict & Security Law, 523(2016)
‘Wagner (2004)’ Markus Wagner, The ICC and its Jurisdiction – Myth,
Misperceptions and Realities, 7 Max Planck Yearbook of United
Nations Law, 409 (2004)
‘Wilske and Schiller (1997)’ Stephen Wilske and Teresa Schiller, International Jurisdiction in
Cyberspace: Which States May Regulate the Internet?, 50
Federal Communications Law Journal 117 (1997)
‘Wolswijk (1999)’ Hein Wolswijk, Locus Delicti and Criminal Jurisdiction, 66

Netherlands International Law Review, 361 (1999)
‘Wolswijk (1999)’ H D Wolswijk, Locus Delicti and Criminal Jurisdiction, 66

Netherlands International Law Review, 361 (1999)
Miscellaneous
‘ILA Resolution’ International Law Association, Resolution on Extra-Territorial

Application of Anti-Trust Legislation, International Law
Association Rep. 55th Conference, art 5, New York, 1972, XIX
‘Kalimanzira Pros Pre-Trial The Prosecutor v Callixte Kalimanzira (Prosecution pre-trial

Brief’ brief ICTR-05-88-0046/1) (date filed 16-04-2008)
‘Mendel (2006)’ Toby Mendel, ‘Study on International Standards Relating to

Incitement to Genocide or Racial Hatred’, for the UN Special
Advisor on the Prevent on Genocide (April 2006)
‘Muller et al (2017)’ Sam Muller, Nathalie Dijkman and Ors, ‘Legal Futures of the
International Criminal Court’ (2017) HiiL Innovating Justice
2
STATEMENT OF FACTS
1. This case concerns the criminal liability of Bannister for her involvement in the brutal killings
of up to 1500 people of Starek ethnicity in the State of Solantis over the course of three years
(from 2017 to 2020). Statusphere, the social networking platform she owns and controls, has
been instrumental in facilitating violence against the Stareks, the minority ethnic group,
during this period.1 Hatred expressed online manifested in actual violence, with Starek people
being targeted and brutally attacked or slain. Two particularly grave examples were the Holy
Day and Election Day attacks (in mid and late 2019 respectively). The essence of the
Prosecutor’s case is that Bannister, through her role as owner and CEO of Statusphere,
facilitated the Dragos attacks on Stareks in Solantis.
2. The Starek ethnic group has been subject to widespread discrimination and periodic acts of
violence perpetrated by the Nothroki people (the majority ethnic group) across Valaria and
Solantis for hundreds of years. In the 19th century, Valaria expelled its Starek population, who
now account for three percent of Solantis’ population, concentrated in community trailer
parks. They gather at worship centres to celebrate Starek ethnic holidays 12 times a year. The
Nothroki ethnic group constitutes the entire Valarian population, while accounting for 97
percent of that in Solantis.
3. Bannister established Statusphere (a social network not unlike Facebook) shortly after May
2017. It uses the logo of a galloping horse with the tagline: “a social network for the Nothroki
people”. Statusphere has over seven million users in Valaria and three million in Solantis who
can join ‘affinity groups’ aligned with their interests, for example, cooking or sports.
Bannister has publicly expressed a dislike towards the Stareks, even stating that “Solantis
would be better off without them”.2
4. In 2017, a Nothroki extremist group committed to the ethnic purity of Solantis calling itself
“Dragos” was established. Members wear shirts bearing the same galloping horse logo, the
use of which predates Statusphere’s establishment. Throughout 2017, Dragos members
committed random acts of violence against the Stareks. By January 2018, 1,000 members had
1
The Starek ethnic group is protected by both the Genocide Convention and the Rome Statute as provided in Akayesu
(Trial Judgement), ¶511.
2
Transcript of interview of Cersei Bannister by Jonah Mormont, Solantis Gazette, dated 17 June 2019, verified by the
Defence.
2
joined a Statusphere affinity group called “Dragos Initiative”. Dragos supporters pay
Statusphere approximately $1 million per year to run pop-up advertisements encouraging
members to join their affinity groups. Online, Dragos groups have grown in size to over 4000
members today.
5. On 25 May 2019, the UNHCHR concluded that increasing violence against the Stareks in
Solantis was related to posts made by the Dragos on Statusphere. The report stated that in
using the ethnic slur of “widget” in reference to the Stareks, Dragos users encouraged others
to “pound”, “clean up” and “put the widgets in cold storage”. In response to these calls to
violence, groups of Dragos members attacked the Stareks, causing hundreds of injuries and
over 150 Starek deaths in early 2019.
6. While Dragos Initiative operated from January 2018 to May 2019, it was shut down following
requests from Solantis’ President. A pattern nonetheless emerged where new Dragos group
would form, albeit under different names, to calls for the same kind of hatred and violence
against the Stareks. Each post was followed by a violent attack against the Stareks, with
Bannister’s maintaining that messages were not recognised as calls to violence. Only after
each bloody attack would Bannister close down the offending group. By January 2020, the
death toll reached 1,500 Stareks while more than 50,000 had fled Solantis. While Dragos
members have been arrested under Solantis law, Valaria refused to surrender Bannister for
prosecution. Solantis instead referred the matter to the ICC, where the Prosecutor determined
that a reasonable basis to proceed with an investigation existed. The PTC subsequently issued
a warrant for Bannister’s arrest, who voluntarily appeared before the ICC to contest
jurisdiction and admissibility of the case.
2
ISSUES
I. Whether posts made by Dragos members on Statusphere between January 2018 and January
2020 constitute DPI to genocide under Article 25(3)(e) of the Statute?
II. Whether Bannister can be criminally responsible under Article 25(3)(e) of the Statute and/or
Article 25(3)(c) for allowing users to post statements that may constitute incitement to
genocide, and failing to immediately remove and block such posts on Statusphere?
III. Whether the ICC has jurisdiction to prosecute Bannister under Article 12 of the Statute
considering her actions occurred Valaria, which is not a party to the ICC?
2
SUMMARY OF ARGUMENTS
I. PTC VI was correct in finding substantial grounds to believe that one or more of the posts by the
Dragos group on Statusphere constituted DPI to genocide because:
First, the posts were sufficiently direct in inciting genocide. They identified a time and location
accompanied by a coded call to genocide. Despite the ‘coded’ language, given the history of
Starek persecution, the audience was immediately able to understand the calls to genocide;
Second, the posts were made in a public place. Each post reached upwards of 2,000 people and
was accessible by all ten million Statusphere users. There was no ultimate bar preventing a
member of the public from receiving the posts. Further, the group was not select or limited as
each member was there based on personal beliefs and any member of the public could have joined
at any time;
Third, the users possessed the requisite intention to commit DPI to genocide. Each member of the
Dragos group is committed to ethnic purity, which requires the total annihilation of the Starek
community in Solantis. Further the users’ genocidal intention can be inferred from the genocidal
acts that took place following their ‘coded’ calls to genocide.
II. Bannister, as controlling owner and CEO of Statusphere, can be held criminally responsible for
DPI to genocide as a principal offender as she is in control of the published content, having
authority to shape its editorial direction. There is also sufficient evidence to show that she
personally possessed genocidal mens rea at the time.
Further, as DPI to genocide is attached to a core crime (genocide), the Defendant may be
criminally responsible as an accessory in the form of aiding and abetting. The Defendant can
therefore be secondarily responsible for DPI to genocide because:
First, she created Statusphere with the purpose of providing a platform and enabling others
(specifically, the Nothroki) to commit DPI to genocide. Additionally, there is evidence that
Statusphere was sympathetic to, and shared, the Dragos’ objective, being a platform for the
Nothroki, and sharing the Dragos logo;
Second, she actively decided not to remove impugned content until after the intended effects had
materialised, and failed to prevent future posting. These failures should not be construed solely
as omissions but rather as part of a course of conduct on her part.
III. The Court has jurisdiction over the situation pursuant to Article 12(2)(a):
2
Given the transnational nature of DPI to genocide in cyberspace, the Court may assert territorial
jurisdiction where an element, or part of an element, of the crime of DPI to genocide has been
committed on Solantis, as a State Party to the Rome Statute. This renders the fact that Valaria is
a non-State Party irrelevant for the purposes of assessing jurisdiction; in the alternative, the
impugned posts produced ‘effects’ which were felt in Solantis as a result of the DPI to genocide.
2
WRITTEN ARGUMENTS
I. PRELIMINARY OBSERVATIONS
A. Standard of Review
1. On 15 March 2020, Pre-Trial Chamber VI confirmed certain charges against the Defendant,
a decision in respect of which the Defence was granted leave to appeal.3 This appeal is brought
pursuant to Article 82(1)(a) of the Statute as it challenges jurisdiction and admissibility.
Should the AC find that the PTC’s decision was materially affected by an error of fact or law,
or procedural error, Article 83(2)(a) empowers the Court to amend or reverse that decision.
2. A PTC’s decision on confirmation of charges is made under Article 61(7) of the Statute. This
provision requires the PTC to “determine whether there is sufficient evidence to establish
substantial grounds to believe that the person committed each of the crimes charged”4 before
confirming any such charge. The PTC must decline to confirm any charges in respect of which
there is insufficient evidence.5 In order to meet this evidentiary threshold, the Prosecutor must
“offer concrete and tangible proof demonstrating a clear line of reasoning underpinning [her]
specific allegations”.6 Article 61 is designed to “filter out those cases and charges for which
the evidence is insufficient to justify a trial”.7
3. In relation to the legal bases on which this Chamber can revisit a decision of the PTC – as per
Article 83(2) of the Statute – this Court held said that an error of law will arise where a
decision is based on an erroneous interpretation of the law.8 This will be found to have
materially affected the decision if the PTC would have come to a “substantially different
decision” had the error not been made.9
4. For the reasons that follow, the Prosecutor submits that the PTC’s decision was not materially
affected by errors of fact or law that would require the AC to reverse or amend its decision.
Moreover, the Defence, as the party bringing this appeal, bears the onus of establishing
3
Facts, page 1.
4
Statute, art 61(7).
5
Ibid, art 61(7)(b).
6
Blé Goudé (confirmation of charges), ¶12.
7
Ntaganda (response), ¶13.
8
Kony et al AC, ¶80.
9
Bemba et al AC, ¶90.
2
material errors on part of the PTC.10 Rules governing proceedings and submission of evidence
in the PTC shall apply mutatis mutandis to proceedings presently before the AC.11.
II. THE PTC DID NOT ERR IN FINDING SUFFICIENT EVIDENCE TO ESTABLISH
SUBSTANTIAL GROUNDS TO BELIEVE THAT POSTS MADE ON 16 JUNE AND 7
NOVEMBER 2019 CONSTITUTED DPI TO GENOCIDE UNDER ARTICLE 25(3)(E)
OF THE STATUTE
5. There are substantial grounds to believe that one or more of the Dragos posts made on
Statusphere between January 2018 and January 2020 constitute DPI to genocide under Article
25(3)(e) of the Statute. While noting that the PTC only made findings in relation to the posts
of 16 June and 7 November 2019, the Prosecutor submits that a number of other posts made
between January 2018 and January 2020 also constitute DPI to genocide, in accordance with
the established agenda for this appeal. In addition, the specific posts must be understood
against a backdrop, and in the context, of a lengthy campaign of DPI to genocide committed
by the Nothroki against the Stareks.
6. Under Article 25(3)(e) of the Statute, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if that person, in respect of the
crime of genocide, directly and publicly incites others to commit genocide. The Court has not
yet made findings on Article 25(3)(e) of the Statute, which prohibits DPI to genocide, nor are
its elements included in the EOC. This raises a question about the extent to which the Court
may consider the jurisprudence of other international tribunals. Article 21 of the Statute
provides that the Court shall apply, in the first place, its Statute, EOC and RPE.12 Secondly,
where appropriate, applicable treaties and the principles and rules of international law,
including the established principles of the international law of armed conflict, should be
applied.13
7. The Court has previously look to the body of existing ad hoc tribunal jurisprudence, especially
in relation to interpretation of substantive crimes.14 Since the ICC has not yet considered the
crime of DPI to genocide, it would be assisted by considering the well-established case law
on this crime developed by the ad hoc ICTR.
10
Mbarushimana PTC, ¶4.
11
RPE, rule 149.
12
Statute, art 21(1)(a).
13
Ibid, art 21(1)(b); note that art 21 of the Statute supersedes art 38 of the ICJ Statute.
14
Lubanga AC, ¶¶63, 472; Ntaganda (Sentencing), ¶96; Chui AC, ¶107; Bemba TC, ¶¶75, 132, 134, 151, 162. See, also
Ford (2018).
2
8. The ICTR is primarily known as a genocide tribunal because of the factual circumstances
giving rise to its establishment. The ICTR indicted 93 individuals for genocide and other
serious violations of IHL committed in Rwanda. Its Trial and Appeals Chambers have dealt
extensively with the crime of genocide (including DPI to genocide) and contributed heavily
to the emerging body of jurisprudence on these crimes. The Rwandan genocide bears some
resemblance to the present case—as with the ICTR—this Court is being asked to consider
circumstances involving acts of genocide perpetrated by a majority ethnic group against a
minority. Unlike the Rwandan genocide, however, this Court has an important opportunity to
prevent the acts of genocide in Solantis from rising to the scale of the ones that occurred in
Rwanda.
9. It should be noted that there are certain textual differences between the ICTR Statute and
Genocide Convention on the one hand, and the Rome Statute on the other.15 In relation to the
ICTR Statute and Genocide Convention, DPI to genocide is explicitly punishable as a crime.16
Under the Rome Statute, the crime is omitted from the definition of genocide, instead
appearing as a form of individual criminal responsibility with specific reference to the core
crime of genocide.17 This difference must be viewed in light of the fact that the Rome Statute
is aimed at codifying not only international crimes, but also general principles of international
criminal law, explaining why participation is dealt with separately.18 With the exception of
the format and structure of the provision, the Rome Statute and ICTR Statute utilise the exact
same wording in prohibiting DPI to genocide.19 Further, incitement under Article 25(3)(e)
makes clear that it relates to the crime of genocide only. Therefore, these textual anomalies
should not impact this Court’s recourse to the extensive body of case law from the ICTR on
DPI to genocide.
10. The crime of DPI to genocide dates back to the IMT at Nuremberg, which was established to
deal with mass criminality in the aftermath of the Holocaust. Before that tribunal, prosecutors
accused German defendants Streicher and Fritzsche of speech crimes for inciting murder and
15
Textual differences between the Rome Statute and the Statutes of the ad hoc tribunals have sometimes been a basis for
the creation of a different line of case law. See, for example, Bemba et al.AC, ¶1326.
16
ICTR Statute, art 2(3)(d); Genocide Convention, art 3(c).
17
Statute, art 25(3)(e).
18
Wagner (2004), 426.
19
Statute, art 25(3)(e); ICTR Statute, art 2(3)(c); see also Wagner (2004), 426-427.
2
extermination in anti-Semitic publications and broadcasts.20 While Fritzsche was acquitted,21
Streicher was found guilty of incitement as the publisher of an anti-Semitic newspaper whose
articles encouraged extermination of the Jews in unequivocal terms.22 The UN subsequently
adopted the Genocide Convention,23 which came into force in 1951. Defining genocide for
the first time under international law, the Genocide Convention included “direct and public
incitement to commit genocide” as an act of genocide.24 However, it was not until the
establishment of the ICTR that its elements were interpreted. Indicting approximately 15
individuals for DPI to genocide, the ICTR had considerable opportunity to interpret the
elements of DPI to genocide in the absence of any guidance from the UN Ad Hoc Drafting
Committee.25
11. In the ICTR’s earliest cases of Akayesu, the TC provided an early framework for DPI to
genocide.26 At its core, ‘incitement’ encompasses the idea of “encouraging or persuading
another to commit an offence.”27 Further, the ‘direct’ element requires that the incitement
“specifically provoke another to engage in a criminal act” as more than a “mere vague …
suggestion”.28 Other developments to the crime of DPI to genocide have paved the way for
courts to use subsequent genocidal acts as evidence to prove the directness of statements.29
12. Regarding the ‘public’ requirement, the TC considered both the civil law understanding of
words spoken aloud in a place that was “public by definition”,30 as well as calls to members
of the general public by such means as the mass media.31 Notably, at the time the Genocide
Convention was adopted, “the delegates specifically agreed to rule out the possibility of
20
Saslow (2016), 423. Note that neither Streicher nor Fritzsche was charged or convicted of DPI to genocide in its current
form as it was only codified post-Nuremberg.
21
Nuremberg Judgment, 151.
22
Ibid, 121-122.
23
Raphael Lemkin—a Polish lawyer – was the first to coin the term ‘genocide’ and initiated the initial deliberations and
formulation of the Genocide Convention.
24
Genocide Convention, art III(c); see also Akayesu TC, ¶554.
25
Saslow (2016), 428.
26
Akayesu TC, ¶¶549 – 562.
27
Ibid, ¶¶555 citing Ashworth (1995), 462.
28
Ibid, ¶557.
29
Ngirabatware TC, ¶1354; citing Media Case AC, ¶¶678, 709, 720,723 and Nzabonimana TC, ¶1752.
30
Akayesu TC, ¶556.
31
Ibid, citing UN Draft Code; Nzabonimana AC, ¶125.
2
including private incitement to commit genocide as a crime, thereby underscoring their
commitment to set aside for punishment only the truly public forms of incitement”.32
13. According to the Akayesu TC, the mens rea required for DPI to genocide requires an intention
to directly prompt or provoke another to commit genocide,33 implying “desire on the part of
the perpetrator to create by his actions a particular state of mind necessary to commit such a
crime in the minds of the person(s) he is so engaging”.34 Therefore, an intention to commit
DPI to genocide presupposes a genocidal intent to “destroy, in whole or in part, a national,
ethnical, racial or religious group, as such.”35
14. Finally, DPI to genocide is an ‘inchoate’ offence, in that it can be punished regardless of
whether the incitement was successful.36 Subsequent decisions before the ICTR have
developed and reinforced the body of law regarding incitement.37 Both the Media Case and
Kalimanzira reinforced the framework from Akayesu, imposing liability on an accused if “he
or she directly and publicly incited the commission of genocide (actus reus) and had the intent
to directly and publicly incite others to commit genocide (mens rea)”.38
15. On the basis of these established legal principles, the PTC did not err in finding substantial
grounds to believe that the posts made on 16 June and 6 November 2019 constituted DPI to
genocide as they directly and publicly incited genocide, while the online users who posted the
statements possessed the requisite intention to commit DPI to genocide.
A. The impugned posts meet the legal standard for DPI to genocide pursuant to Article
25(3)(e)
(1) The actus reus for DPI to genocide has been satisfied
(a) The posts directly incited genocide
16. Since the language used in each post differs, it is necessary to assess them separately for the
purpose of determining their directness. This assessment considers whether the inciting words
32
Akayesu TC, ¶556; Kalimanzira AC, ¶158; Nzabonimana AC, ¶126 citing Abtahi Vol. 2 (2008), p. 986.
33
Ibid, ¶557.
34
Akayesu TC, ¶560.
35
Ibid, ¶560. See also, Nzabonimana AC, ¶121; Nahimana et al AC, ¶677; see also Mugenzi and Mugiraneza AC, ¶135;
Bikindi AC, ¶135.
36
Akayesu TC, ¶561; Media Case AC, ¶678; Nzabonimana AC, ¶234; Bikindi AC, ¶145; Kalimanzira TC, ¶¶510, 513, 515,
634.
37
Nyiramasuhuko et al TC; Karemera et al AC; Ngirabatware TC.
38
Kalimanzira AC, ¶155; Karemera et al TC, ¶1593.
2
specifically provoked another to engage in a criminal act39 or take immediate action,40 rather
than making a vague suggestion.41 In certain circumstances even implicit messages are
sufficient to impose liability if, in their context, the audience immediately understand its
meaning.42 As such, the surrounding circumstances are an essential component of assessing
directness. To this end, it must be noted that the Starek people have been subject to widespread
discrimination and periodic violence by the Nothroki for hundreds of years.43 Further, before
the two impugned posts were made, the UNHCHR concluded that the use of the word
“widget” was an ethnic slur used by Dragos members to refer to the Stareks, 44 and that the
“coded” calls to violence on Statusphere resulted in actual attacks against the Stareks by
Dragos.45
17. Just weeks after the UNHCHR’s findings, a 16 June 2019 post in the Dragos group stated “it
is time for a widget roast. Tonight – 7:00PM, 12 Liberty Blvd”.46 Being made to an audience
composed of Dragos members, and specifying both a time and location for action, its meaning
was easily understood as a call to commit genocidal acts, despite the “coded” language used.
This post resulted in the Holy Day Attack.
18. On the same basis, the 6 November 2019 post stating “go to the voting sites … and do what
must be done to prevent the widgets from gaining power” is direct in that it stipulates a date
and location where the Stareks would be in high concentration. Notably, this followed a post
that described the Holy Day Attack as a “good first step toward achieving the Dragos objective
of ethnic purity in Solantis.”47 Like the previous, the 6 November post must be considered
alongside the history of widespread discrimination and violence against the Stareks. Any
argument that the 6 November post was simply a call for Dragos members to exercise their
39
Akayesu TC, ¶557.
40
Kajelijeli TC, ¶852.
41
Akayesu TC, ¶557.
42
Even if the message is ambiguous, after an already-established pattern of violence, it is much more likely that the audience
will grasp the implication thereof. See, for example, Akayesu TC, ¶557; Media Case AC, ¶¶698-701, 703; Karemera et
al AC, ¶483; Mugesera, ¶94; See also Benesch (2008), 63-64.
43
Facts, ¶8.
44
This tactic of ‘dehumanizing’ the minority ethnic group was fundamental in the Rwandan genocide, where the Hutu
majority population referred to the Tutsi minority as ‘inyenzi’, which means ‘cockroach’, in their coded calls to
violence.
45
Facts, ¶8.
46
Ibid, ¶11.
47
Ibid, ¶13.
2
democratic rights is a serious oversight of the context in which it was made, and the extremist
nature of the group. This post resulted in the Election Day Massacre.
19. Other posts followed by violent attacks against the Stareks included the following:
a. “break down the widgets”;
b. “pound the widgets”;
c. “clean up the widgets”;
d. “put the widgets in cold storage”;
e. “end to all widgets”;
f. “driving out the widgets”; and
g. “cleansing the widgets”
Each post was accompanied by a specified time and place where Stareks were known to
gather.48 It is important to note that posts e, f, and g above were made in December 2019, after
an entire year of Dragos members coordinating violence on Statusphere. There is no question
that these statements were direct, especially given that they were posted when the Stareks
were at their most vulnerable.49
20. As DPI to genocide is an inchoate crime, it is unnecessary to find a causal nexus between the
inciting posts and subsequent genocidal acts.50 However, ICTR jurisprudence has
acknowledged that “the fact that a speech leads to acts of genocide could be an indication that
the speech … was to incite the commission of genocide”.51 Accordingly, subsequent
genocidal acts can be used as evidence to support a finding that the posts directly incited
genocide. In the context of the Dragos groups, the impugned posts were in fact followed by
acts of genocide, making it clear that Dragos members interpreted the posts as calls to commit
genocidal acts and that there was a causal connection.
21. The 16 June 2019 post precipitating the Holy Day Attack called for receivers to “roast” the
widgets and was followed by Dragos members using incendiary devices to kill 200 Stareks.52
The attack occurred at the time and location specified in the Statusphere post, with
48
Facts, ¶¶8, 17.
49
Ibid, ¶17.
50
Bikindi TC, ¶419; Kalimanzira TC, ¶510; Muvunyi TC, ¶24; Karemera TC, ¶1593.
51
Kalimanzira TC, ¶514; Muvunyi TC, ¶26.
52
Facts, ¶11.
2
perpetrators wearing shirts emblazoned with the same galloping horse of the Statusphere
logo.53 At the Election Day Massacre, perpetrators again donned the galloping horse logo and
killed the Stareks en masse. By attending the stipulated locations on Election Day and
shooting at the Stareks, the Dragos members once again acted in accordance with the posts
they received. The remaining posts were also followed by violent attacks.54 Such causal
connections should be of significant evidentiary value to support a finding that members of
the Dragos groups immediately grasped the implication of the impugned posts.55
22. From the above, there is a clear pattern of coded DPI to genocide on Statusphere that always
resulted in acts of genocide. Because of this pattern, Dragos members were able to grasp the
implication of each subsequent post without difficulty: they were aware of the clear targets of
their acts, as well as where and when to attack them. Ultimately, this allowed the Dragos
members to choreograph genocidal acts of increasing magnitude.
(b) The posts publicly incited genocide.
23. Public incitement is characterised by a call for criminal action to a number of individuals in a
public place or to members of the general public at large by such means as the mass media.56
In determining whether incitement is public, two factors are to be considered: “the place where
the incitement occurred and whether or not attendance was select or limited.”57 Despite the
Defendant’s claim that groups on her network are ‘private’,58 it is essential to look at their
true nature in light of the ‘public’ considerations formulated by the ICTR.
(i) The Statusphere groups can be accessed by the general public.
24. In Kalimanzira, the ICTR noted that the Travaux Préparatoires demonstrated the drafters’
intention to remove private incitement, being understood as “more subtle forms of
communication such as conversations, private meetings, or messages.”59 These forms of
communication, if truly private, cannot be received by general members of the public. The
same cannot be said about the Dragos groups, which had no ultimate bar denying access
should a member of the public wish to join. Upon completing a number of simple steps, any
53
Facts, ¶11.
54
Ibid, ¶¶8, 17.
55
Karemera TC, ¶1602; Kalimanzira TC, ¶514; Muvunyi TC, ¶26.
56
Akayesu TC, ¶556.
57
Ibid. See also, Nzabonimana AC, ¶¶231, 384; Ngirabatware AC, ¶52; Muvunyi TC, ¶27; Kajelijeli TC, ¶851; Ruggiu TC,
¶17; Niyitegeka TC, ¶431; Kalimanzira TC, ¶515.
58
Facts, Appendix 1.
59
Kalimanzira AC, ¶158 citing Abtahi Vol. 2 (2008), 1549, 1552.
2
user could join the so-called ‘private’ affinity groups, and thus read and post content therein.60
Moreover, Dragos pays Statusphere $1 million annually to actively encourage users to join
the group. By virtue of these advertisements, the Dragos group is brought to the attention of
the wider public (i.e. those who are not yet members), who simply have to click to join. Where
a platform encourages members of the public to join a forum, then that forum must be
undeniably public.61 To this end, the PTC did not err in finding sufficient evidence to establish
substantial grounds to believe that the posts were made in a public group.
(ii) The audiences in the Dragos Statusphere groups were not select or limited.
25. ICTR jurisprudence has accepted that a place will not be public if the audience is “select or
limited”.62 In assessing the nature of a group, the ICTR considered the “number of persons
and the medium through which the message was conveyed” relevant.63 In this case, there were
more than 2,000 Dragos members in the group at the time the inciting posts were made, which
could ultimately be accessed by any one of Statusphere’s ten million users.64 The medium of
cyberspace is accessible by everyone at no cost, and nothing prevents their access.
26. Further, this case is distinguished from cases before the ICTR which apply the “select or
limited” consideration. In Kalimanzira, Nyiramasuhuko and Akayesu, the “select or limited”
group, being the intended recipients of the inciting statements, were physically present. Thus,
the inciters had the ability to prevent certain members of the public from receiving the
information and could convey their messages accordingly. This is not necessarily possible in
cyberspace, where there is no ultimate bar to Statusphere users joining the Dragos groups.
Further, given the extreme nature of the Dragos group and its commitment to ethnic purity,
those making the posts would not want to restrict their incitement to a select or limited group.
27. The ICTR decisions in Kalimanzira, Kajelijeli and Ngirabatware can be further distinguished
on the basis that the “select or limited” audience there were subordinates to the inciter. As
considered in the Draft Convention, courts ought to consider the effect of authority on
incitement to genocide.65 Therefore, it is fundamentally important to the “select or limited”
assessment to consider the relationship between the inciter and those being incited. As
60
Facts, Appendix 1.
61
Akayesu TC, ¶556; Kalimanzira Pros Pre-Trial Brief, ¶44.
62
Media Case AC, ¶862.
63
Nzabonimana AC, ¶¶231, 384; Ngirabatware AC, ¶52.
64
Facts, ¶6.
65
UN Doc E/447, 30-31.
2
subordinates, the incited individuals were required to be present – simply following duty and
influence. By contrast, each member of the Dragos group is present in the group based on
their ethnicity and personal beliefs, and not connected by some organisational structure. They
are under no duty to act on the posts or even be members of the group. As a result, the Dragos
groups do not constitute a “select or limited” audience.
28. In any event, if the Court finds that the Dragos affinity groups are “select or limited”, this
should not be determinative of the groups’ public nature. The question to be determined is
whether the group is public, not the audience. The posts were disseminated in a public forum
because there are ultimately no bars to joining. To extend the “select or limited” analysis to
preclude large extremist groups from being considered public, when the forum is also public,
would contradict Statute’s objective ending impunity. Lastly, the Court ought to uphold the
PTC’s decision to prevent online safe havens in which users could incite genocide in a much
more effective way, while evading the Court’s jurisdiction. The Court was designed to bring
an end to impunity, rather than enlarge this gap.66 Accordingly, the PTC did not err in finding
sufficient evidence to establish substantial grounds to believe that the posts were made in a
public forum.
(2) The mens rea for DPI to genocide has been satisfied
(a) The Dragos members intended to directly and publicly incite genocide
29. As established in the ICTR, the mens rea required for DPI to genocide is “to directly prompt
or provoke another to commit genocide,”67 thus presupposing a specific intent to commit
genocide.68 This is a dolus specialis. While explicit manifestations of criminal intent are
uncommon for obvious reasons, the requisite mens rea may be inferred from the posts
themselves and the surrounding circumstances.69 Relevantly, the ICTR has indicated that “in
‘a genocidal environment’ an ‘ethnic generalisation provoking resentment’ would more likely
lead to violence, and be an ‘indicator that incitement to violence was the intent”.70 Regarding
Akayesu’s mens rea, the ICTR found that he was “fully aware of the impact of his statement
66
Statute, Preamble.
67
Akayesu TC, ¶560.
68
Ibid, ¶560.
69
Kayishema and Ruzindana AC, ¶159.
70
Media Case TC, ¶1022; Mendel (2006), ¶¶48-49. This was also prominent in the Nuremberg Trials whereby Streicher
was aware of the ongoing genocide and continued to publish propaganda. On the other hand, Fritzsche, who was
acquitted was unaware of the genocidal environment.
2
on the crowd…”71 and had deliberately created “a particular state of mind in his audience
necessary to lead to the destruction”.72 Following this reasoning, it is clear that members
posting in the Dragos groups were aware that they were inciting individuals who were already
committed to the ethnic purity of Solantis. By joining the Dragos groups, members evidenced
some degree of commitment to, or interest in, preserving the “ethnic purity of Solantis”.73
Those making the inciting posts did not need to create a particular state of mind in their
audience, as the majority of Dragos members – if not all – already had a predisposition to
carry out violence against the Stareks. To this end, the users making the inciting posts were
“fully aware of the impact of [their] statement[s] on the crowd”.74 Given the extensive history
of discrimination and violence directed at the Stareks by the Nothroki, the Court may draw an
inference that posts made by Dragos members intended to incite others to commit genocide.
30. Accordingly, the Dragos members demonstrated the necessary dolus specialis in their intent
to preserve the ethnic purity of Solantis.
III. THE PTC DID NOT ERR IN FINDING THAT THE DEFENDANT MAY BE
CRIMINALLY RESPONSIBLE FOR INCITEMENT TO GENOCIDE AND
PROVIDING THE MEANS FOR INCITEMENT
31. The PTC determined that Bannister’s failure to remove the posts and prevent their reposting
on Statusphere could render her criminally responsible for incitement to genocide under
Article 25(3)(e) of the Statute and providing the means for incitement under Article 25(3)(c).
It must be noted, however, that although the PTC found Bannister had ‘aided and abetted’
partly because of her omissions, the Prosecutor’s case is that Bannister’s conduct involved
both her conscious decisions not to act as well as her positive acts.
A. The PTC was correct in finding that Dr Bannister’s actions and omissions could
amount to direct and public incitement to genocide
32. In order for Bannister to be liable for DPI to genocide, she must have “directly and publicly
incited the commission of genocide (actus reus) and had the intent to directly and publicly
incite others to commit genocide (mens rea)”.75 However, even though Bannister has not
incited genocide in her own capacity, she may still be principally liable for DPI to genocide
71
Akayesu TC, ¶361.
72
Akayesu TC, ¶674.
73
Facts, ¶7.
74
Akayesu TC, ¶¶361, 673(iv).
75
Kalimanzira AC, ¶155.
2
as the founder, owner and CEO of Statusphere.76 Convicting Bannister on this basis is not
novel. In the seminal Media Case, the ICTR convicted publishers and broadcasters as
principal perpetrators of DPI to genocide for content on their platforms.77 In the Media Case,
three defendants were charged with DPI to genocide for their conduct in similar roles to that
held by Bannister. Ferdinand Nahimana was the founder and director of radio station RTLM,78
with Jean-Bosco Barayagwiza being his second in command.79 The third defendant, Hassan
Ngeze, was the owner, founder and editor of Kangura—a Hutu publication.80
33. RTLM was instrumental in “awakening the majority people”81 in Rwanda. It was Nahimana’s
initiative and design which “grew out of his experience … and his understanding of the power
of the media.”82 Like Nahimana, the Defendant understands the power of media as she holds
a PhD in computer science from Valaria’s prestigious Institute of Technology, and her
immediate endeavour upon graduation was to establish a social media network for those of
her ethnicity.83 She is also sympathetic to the Dragos mission.84
34. In the Media Case, Nahimana and Barayagwiza “knew what was happening at RTLM and
failed to exercise the authority vested in them as office-holding members of the governing
body of RTLM, to prevent the genocidal harm that was caused by RTLM programming”.85
Ngeze was also aware, as publisher and editor, that Kangura publications were notorious for
calling for the extermination of the Tutsi population.86 Similarly, Bannister was aware of the
widespread and systematic violence that Statusphere was orchestrating. Like the three
defendants in the Media Case, she failed to exercise her role at Statusphere to prevent the
genocidal harm.
76
Hassan Ngeze—a defendant in the Media Case—held the exact same positions as Dr Bannister. He “was the owner,
founder and editor of Kangura. He controlled the publication and was responsible for its contents.” Taken from Media
Case AC, ¶¶134-5.
77
Media Case TC, ¶973, 977, 1033-1038.
78
Radio Télévision Libre des Mille Collines.
79
Media Case TC, ¶567.
80
Ibid, ¶135.
81
Ibid, ¶¶966 and 974.
82
Ibid, ¶974.
83
Facts, ¶6.
84
Ibid, Appendix 1.
85
86
Ibid, ¶¶1036 – 1038.
2
35. Furthermore, like Ngeze, she established and made Statusphere available as a platform to
incite hatred and violence against the Stareks. Statusphere was established soon after the
establishment of Dragos and assumed their galloping horse logo.87 Like Kangura, there is
evidence that Statusphere played a significant role in creating the conditions that led to acts
of genocide,88 on the basis of Dragos’ routine posting and subsequent genocidal acts. The TC
in the Media Case provided that “Kangura paved the way for genocide in Rwanda, whipping
the Hutu population into a killing frenzy.”89 Statusphere had the same effect on the Dragos
group, albeit to a lesser degree thus far. Prior to Statusphere, the Dragos had managed to kill
just 23 Stareks.90 After Dragos began using Statusphere 150 Starek deaths occurred in a
similar timeframe,91 which has since risen to over 1,500 casualties.92 Statusphere was clearly
instrumental in “whipping” the Nothroki population into a killing frenzy. Further, Kangura
implemented mechanisms that would encourage readers to receive the messages of
incitement.93 Analogously, Bannister was being paid to “encourage Statusphere users to join
their group”,94 running pop up advertisements for this purpose.
36. Lastly, like Nahimana, Barayagwiza and Ngeze, Bannister did not distance herself from the
messages.95 Instead she purveyed the messages, being sympathetic to the Dragos mission of
ethnic purity,96 while believing that the Stareks are “unclean and prone to criminal behaviour”,
and that “Solantis would be better off without them.”97 Accordingly, there is sufficient
evidence to establish substantial grounds to believe that the Defendant, as owner and CEO of
Statusphere, can be found criminally responsible for DPI to genocide as a principal offender.
37. After the Court has exhausted international criminal law jurisprudence, Article 21 of the
Statute allows it to consider other international and domestic courts. As the Media Case was
the first case before the ICTR to examine the role of mass-media in relation to DPI to
87
Facts, ¶6.
88
89
Ibid, ¶950.
90
Facts, ¶7.
91
Ibid, ¶8.
92
Ibid, ¶17.
93
94
Facts, Appendix 1.
95
96
Facts, Appendix 1.
97
Ibid, Appendix 1.
2
genocide, it reviewed international law and jurisprudence on the matter.98 After doing so, the
ICTR identified a “number of central principles”:99 namely, intent and the purpose of the
publishment;100 the context of the expression;101 and the likely impact.102 Despite employing
content monitors, Bannister is the owner and CEO, therefore having the ultimate say in the
content published on Statusphere. There is also evidence that she was acutely aware of what
was being said in the Dragos groups, with their inflammatory comments being routinely
brought to her attention.103 Lastly, she was aware of the extremist nature of Dragos, and was
therefore aware of the likely impact of its posts. Ultimately, because Bannister is providing a
forum and has “the power to shape the editorial direction” of the content that is published
thereon,104 she can be principally liable for the impugned content.
38. In any event, there are also substantial grounds to believe that the Defendant should be found
criminally responsible as a principal offender for the more recent posts. Even if she did not
understand the nature of the Dragos groups initially, it was brought to her attention upon the
post in Dragos Aspiration suggesting the Holy Day Attack was “a good first step toward
achieving the Dragos objective of ethnic purity in Solantis”.105 Accordingly, she has permitted
the continued use of Statusphere by the Dragos extremist group to incite violence. On this
basis, and as per international jurisprudence, the PTC did not err in finding that Bannister may
be principally liable for inciting genocide, as Statusphere’s de facto publisher.
B. The PTC was correct in finding that Bannister’s conduct could constitute aiding,
abetting or otherwise assisting in the commission of incitement to genocide
39. The PTC committed Bannister on charges of incitement based on her actions and omissions
in her role as owner and CEO of Statusphere. This finding must be affirmed on the basis that
DPI to genocide is a core crime, and therefore accessorial liability may be attached in the form
of aiding, abetting or otherwise assisting. Despite the fact that DPI to genocide is not
punishable under Article 6 of the Statute, the drafting history and commentary on
98
Media Case TC, ¶¶979-980.
99
Ibid, ¶1000.
100
Ibid, ¶¶1001-1003; noting Faurisson v France where the HRC suggested the author was motivated by anti-Semitism
rather than pursuit of historical truth. Cf. Jersild v Denmark where the accused distanced himself from the remarks
which was critical to determining the purpose of the program.
101
Ibid, ¶¶1004-1006; noting Zana v Turkey the ECHR found that the comments were likely to exacerbate an already
explosive situation given massacres were taking place at that time.
102
Ibid, ¶1007.
103
Facts, ¶¶12, 16, 17, Appendix 1.
104
Sürek v Turkey, ¶63.
105
Facts, ¶13.
2
Article 25(3)(e) “make it clear that it is intended to be treated in the same manner as it is in
the ad hoc Tribunals—that is, as an inchoate crime, not as a true form of responsibility”.106
40. Under Article 25(3)(c) of the Statute a person shall be criminally responsible and liable for
punishment for a crime if that person, for the purpose of facilitating the commission of such
a crime, aids, abets or otherwise assists in its commission or its attempted commission.
Despite the ICC being rather unsettled on the standard of this mode of liability,107 the Court
should not look to the ad hoc tribunals for guidance,108 predominately due to a critical textual
difference between the ad hoc Statutes and the Rome Statute whereby the latter qualifies
‘aiding and abetting’ by the words “providing the means for [the crime’s] commission”.
41. The level of contribution required for ‘aiding and abetting’ at the ICC is unsettled. On one
hand, the TC in Bemba et al. provides that the actus reus for Article 25(3)(c) does not require
a specific threshold be met. Based on the wording of the provision, the TC found that the
requirement is simply that assistance be purposeful and that there be some causal link in
furthering the commission of the crime.109 On the other hand, the PTC in Mbarushimana and
the TC in Lubanga held that the contribution must be “substantial” in order to exclude minor
contributions which were not intended to give rise to individual criminal responsibility.110
42. Subsequently, the AC in Bemba et al upheld the law outlined in the TC, such that “the actus
reus… is certainly fulfilled when the person’s assistance … facilitates or furthers the
commission of the crime”.111 In any event, Bannister’s conduct is both purposeful, as
considered necessary in Bemba et al., and would still rise to the “significant” standard set out
in Mbarushimana and Lubanga.
43. The purposive intent of Article 25(3)(c) requires that an aider or abettor act “[f]or the purpose
of facilitating the commission of […] a crime”. Accordingly, the accused must “intend to
facilitate the commission of the crime”.112 Bemba et al. expanded this concept, finding a
106
Boas et al (2007), 200; see also Petrosian (2010), p. 44.
107
Bemba et al TC, ¶90.
108
See Bemba et al AC where the Chamber acknowledged recourse to the ad hoc tribunals but opted to “apply in the first
place the Statute and the Rules” instead, ¶1326.
109
Bemba et al TC, ¶¶93-98.
110
Mbarushimana (confirmation of charges), ¶¶283-285; Lubanga TC, ¶997.
111
Bemba et al AC, ¶1327 (emphasis added). Note that Bemba et al AC didn’t effectively overrule Mbarushimana
(confirmation of charges) and Lubanga TC because it wasn’t required, ¶1327. Though the AC did note the “substantial
contribution” requirement in the ICTY, ICTR and SCSL, but provided that “it is not binding on this Court”, ¶1326.
112
Blé Goudé (confirmation of charges), ¶167; Ongwen (confirmation of charges), ¶43; Al Mahdi (confirmation of
charges), ¶27.
2
twofold mens rea in that the aider and abettor must have intention in relation to the “principal
offence” as well as in relation to “the accessory’s own conduct”.113 Essentially the accessory
must act intentionally to engage in their own conduct, as well as additionally for the purpose
of facilitating the crime. On this basis, the PTC was correct in finding substantial grounds to
believe that Bannister can be criminally liable for aiding, abetting or otherwise assisting DPI
to genocide by way of her positive acts and omissions.
(1) The actus reus for aiding, abetting or otherwise assisting has been satisfied.
44. While the Prosecutor acknowledges the case law of the ad hoc tribunals on aiding and abetting
by omission, it takes the view that Bannister’s liability is not based on a failure to act. Rather,
her liability is based on a repeated course of conduct in deciding not to remove posts
constituting DPI to genocide and allowing the Dragos groups to continually reform under new
names, in direct breach of her own policy. These acts were done purposefully to allow Dragos
members to encourage violent acts towards the Stareks. Statusphere was established almost
contemporaneously with the formation of the Dragos group—targeted as “a social networking
platform for the Nothroki”114 which uses the same galloping horse logo as the Dragos
supporters. Further, Bannister receives around $1 million a year to promote the Dragos groups
on Statusphere, indicating a conscious choice on her part to facilitate the commission of DPI
to genocide thereon.
45. The Defendant substantially contributed to the incitement by creating a platform on which
Dragos members could make posts encouraging ethnic division and violence without them
being promptly removed or blocked from reposting. Becoming the primary means by which
Dragos members advocate violence and coordinate attacks, the UNHCHR concluded that
there is a correlation between these groups and the increasing violence towards the Starek
community.115 As a result, Bannister acted with purpose by intentionally refraining from
removing the impugned posts and preventing their reposting. Further, her assistance was
substantial because without the Defendant forming Statusphere and refraining from removing
their content, the Dragos members could not commit DPI to genocide online.
113
Bemba et al TC, ¶97.
114
Facts, ¶6.
115
Ibid, ¶8.
2
(2) The mens rea for aiding, abetting or otherwise assisting has been satisfied
46. Being of Nothroki descent herself, the Defendant has publicly expressed a dislike for the
Starek ethnic group. When asked in an interview whether she was “sympathetic to their
[Dragos’] goal of ethnic purity” the Defendant did not deny this, and implicitly agreed by
providing that “[their goal of ethnic purity] is the history of Valaria.”116 The Defendant further
responded by saying “[e]veryone knows how much trouble the Stareks can be. They are
unclean and prone to criminal behaviour. Solantis would be better off without them”.117 Being
well-educated and aware of the UNHCHR’s findings that the posts on Statusphere correlated
with violence against the Stareks, the Defendant continued to allow Dragos groups to make
these posts despite their consequences. In light of these circumstances, it can be inferred that
the Defendant lent her assistance with the aim of facilitating DPI to genocide and was aware
that this would occur in the ordinary course of events. As such, Bannister possessed both the
actus rea and mens rea required for liability for ‘aiding and abetting’ pursuant to Article
25(3)(c). That is, Bannister’s purposeful positive acts—as well as her decisions not to act—
aided, abetted or otherwise assisted in the commission of DPI to genocide.
IV. THE ICC HAS JURISDICTION TO PROSECUTE BANNISTER
47. The PTC determined that the Court has jurisdiction under Article 12 of the Statute because of
a cyberspace connection between Bannister’s actions and effects that occurred in Solantis, as
a party to the ICC.118 This is significant to this case because while Solantis is a State Party to
the Rome Statute, Valaria is not119. In addition, Bannister is a Valarian national, and
Statusphere is headquartered in Valaria, where its servers are also located. The Court may
nonetheless assert territorial jurisdiction in this case because a constituent element of DPI to
genocide was committed in Solantis due to the transnational nature of DPI when committed
online [A]. The Court may also assert jurisdiction by virtue of the effects doctrine, as an
extension of the territoriality principle applied by the PTC [B].
48. The ‘territoriality principle’ and the ‘effects doctrine’ are both distinct and legitimate bases of
asserting jurisdiction. The former gives a State jurisdiction where an element, or part thereof,
of the crime is committed within its territory.120 Territorial jurisdiction is one of the most well-
116
Facts, Appendix 1.
117
Ibid, Appendix 1.
118
Ibid, ¶3.
119
See generally VCLT art 34.
120
Myanmar PTC, ¶61.
2
established rules of CIL121 and treaty law,122 for asserting jurisdiction. The effects doctrine,
however, is relatively unsettled in international law but has received increasing support,
including acknowledgement by the ICC.123 This doctrine stipulates that a “State may assert
territorial jurisdiction if the crime takes place outside the State territory but produces effects
within the territory of the State.”124 The key difference between these two theories of
jurisdiction is that territoriality requires a constituent element of the crime to have been
committed in the territory, while the effects doctrine requires only non-constituent effects,
such as broader social or economic consequences, be felt on the territory.125
A. The transnational character of DPI to genocide committed in cyberspace allows the

Court to assert jurisdiction based on territorial jurisdiction
49. Article 12(2)(a) of the Statute provides that the Court may exercise jurisdiction if the conduct
in question occurred on the territory of a State Party. As Solantis is the State Party in this case,
this issue turns on whether the conduct of DPI to genocide occurred in that State. Asserting
jurisdiction by virtue of Article 12(2)(a) of the Statute “has been widely interpreted as an
expression of the territoriality principle”.126 This position is uncontroversial.127 The Court
may therefore assert its jurisdiction on the basis that the crime of DPI to genocide has occurred
partially on the territory of a State Party, and partially on the territory of a non-State Party.
50. In interpreting the words “on the territory of which the conduct occurred”128 it is necessary to
consider CIL, being the legal framework that the drafters had in mind when negotiating the
Statute’s relevant provisions.129 Accordingly, the ICC has treated Article 12(2)(a) as
permitting the Court to assert jurisdiction when only “part of the actus reus takes place within
the territory of a State Party”.130 This is consistent with the doctrine of ubiquity and
constitutive elements approach, both of which have been accepted as CIL.131 As a result, the
121
Lotus Case, ¶¶18-20.
122
For the historical development of this rule, Ryngaert (2008), 44.
123
Myanmar PTC, ¶56(v).
124
Ibid, ¶56(v).
125
Wolswijk (1999), 366.
126
Myanmar PTC, ¶¶44, 55.
127
Ibid, ¶44, 55.
128
Ibid, ¶55.
129
Ibid, ¶55.
130
Ibid, ¶61-2.
131
Ibid, ¶58-62.
2
Court may assert jurisdiction because a constituent element of DPI to genocide was committed
on the territory of a State Party.
(1) The transnational nature of DPI committed online permits the assertion of territorial
jurisdiction
51. Crimes committed in cyberspace exist, in effect, everywhere but nowhere in particular, and
only on the internet.132 Therefore, the salient features of determining jurisdiction fall on the
elements of the crime which are committed in cyberspace.
(a) An element of the ‘incitement’ occurred in Solantis
52. Incitement is a necessary requirement of DPI to genocide, which requires another person to
be provoked to commit acts of genocide.133 Inciting another person via the internet necessarily
requires a combination of the content-provider, a host server, a user’s server, the user
themselves and finally the receiver.134 Subsequently, if it can be shown that either the users
inciting genocide or the users receiving the posts were based in Solantis, then the Court may
exercise its territorial jurisdiction in accordance with Article 12(2)(a).135
53. There is sufficient evidence to establish substantial grounds to believe that the Dragos
members posting in the various Dragos groups reside in Solantis. It is known that three million
Statusphere users are in fact located in Solantis.136 Further, the Dragos groups in question are
committed specifically to the “ethnic purity of Solantis”, and the impugned posts target their
attacks within that State. Given the dialectical differences between Solantis and Valaria, and
the fact that Valarian Statusphere content monitors had difficulty interpreting the posts, it can
be inferred that the posts were made by users in Solantis. Most significantly, Solantis is
currently prosecuting nationals known to have incited violence against minority groups
online.
54. Alternatively, there is sufficient evidence to establish substantial grounds to believe that the
users incited to commit genocide are based in Solantis. Dragos members are known to wear
shirts bearing a galloping horse logo,137 and perpetrators of both the 16 June and 7 November
2019 attacks were dressed accordingly. As each attack on Stareks in Solantis was executed in
132
Lim (2007), p. 68 citing Johnson and Post (1996).
133
Akayesu TC, ¶553 (emphasis added).
134
Vagias (2016), p. 537.
135
Ibid, 537.
136
Facts, ¶6.
137
Ibid, ¶7.
2
accordance with the time, place and actions prescribed in each impugned Statusphere post, it
can be concluded that those who were incited to commit genocide had received the impugned
Statusphere posts and were evidently situated in Solantis.
(b) The ‘public’ element of DPI to genocide partially occurred in Solantis
55. Neither the Statute or the EOC analyse the objective and subjective elements of DPI to
genocide.138 The ICTR, however, provided that DPI to genocide must qualify as ‘public’ and
encompasses the “… display of written material”.139 Accordingly, the display of written
material online has an immediate bearing on the assertion of territorial jurisdiction.140 That is,
if the written material, as part of the ‘public’ element, is displayed in Solantis, then the Court
may assert territorial jurisdiction. This assessment of DPI to genocide online is consistent with
domestic jurisdictional approaches that are customary.141 One such approach was followed in
the Yahoo! Case,142 where the crime was held to have occurred on French territory as the
website was accessible to French users and therefore ‘displayed’ in France.143 In the present
case, Statusphere is known to have been accessible and used by Dragos members in Solantis.
Therefore, the element of ‘public’ encompassing the “display of written material”144 has taken
place in Solantis, and on this basis the Court may exercise territorial jurisdiction.
56. As noted by the Paris Court of Appeal, the Court should further justify the assertion of
jurisdiction on the basis that if it accepted a limited view of jurisdiction, it would likely
promote a safe haven for online hate speech.145 Computer systems would effectively operate
to shield a perpetrator from liability for crimes codified in the Statute, especially DPI to
genocide.146 The internet could more readily be used by extremist networks like Dragos to
better incite and coordinate their crimes.147 Lastly, given the ICC has jurisdiction over a
number of States, the inter-state conflict of laws would be minimal. For example, cases such
138
UN Doc PCNICC/1999/DP.4/Add.3.
139
Akayesu TC, ¶559.
140
Vagias (2016), 537-8.
141
Myanmar PTC, ¶¶58-62. Both the ‘constituent elements theory’ and the ‘principle of ubiquity’ have been endorsed in
State practice and frequently applied.
142
Yahoo! 2002 Case.
143
Art. R-645-1 of the French Penal Code prohibited the exhibition of Nazi symbols in public; Yahoo! 2000 Case; Yahoo!
2002 Case; see also Vagias (2016), p. 533.
144
Akayesu TC, ¶559.
145
Yahoo! 2004 Case; see also Vagias (2016), 533; Brenner (2007), 209.
146
Vagias (2014), p. 139.
147
Muller et al (2017), p. 21.
2
as Yahoo! involve a true conflict of laws and disregard the court rulings of another
jurisdiction—as an international body the ICC can streamline this issue.
57. Given the elements of DPI to genocide necessarily require display in a public forum, and the
posts were both accessible to and acted upon by users in Solantis, the Court can assert
territorial jurisdiction. This constituent elements approach is in alignment with the classic
formulation of the objective territoriality principle.148
B. The Court has jurisdiction because of a cyberspace connection between Bannister’s

actions and the effects in Solantis
58. The PTC’s assertion of jurisdiction on the basis of the ‘effects doctrine’ is a form of
extraterritorial jurisdiction originating from the ALCOA Case.149 There, the Court asserted
wholly extraterritorial jurisdiction over a Canadian company whose conduct caused
anticompetitive effects in the U.S. Following ALCOA, the USSC reaffirmed the effects
doctrine on the basis that a British company’s activity in England “produced substantial
effects” within U.S. territory.150 The effects doctrine has subsequently been adopted in
China,151 Mexico,152 Serbia,153 Tajikistan,154 and Australia,155 while Singapore has noted its
appeal in “the modern age of technology”.156
59. After some reluctance, the international community has come to recognise the validity of the
effects doctrine,157 and not only in anti-trust cases.158 The ECJ has accepted the effects
doctrine and justified its use under public international law,159 but limited its use to only those
effects which will foreseeably have “an immediate and substantial effect in the
Community”.160 Once the EC indicated its willingness to accept the effects doctrine, the ICJ
148
Lotus Case.
149
ALCOA Case.
150
Hartford Fire, ¶796.
151
Chinese Code, art 6(3).
152
Mexico Code, art 2(1).
153
Serbian Code, art 17(1).
154
Tajikistan Code, art 14(2)(b).
155
Australian Code, §14(2)(b).
156
Public Prosecutor v Taw Cheng Kong, ¶88.
157
Grossfillex-Fillistorf; Wood Pulp Case; see also Wilske and Schiller (1997), p. 132; see generally Freidberg (1991)
(discussing extraterritorial antitrust enforcement).
158
See, for example, Barclays Bank Plc; North South Finance Corporation; EEOC v. AAOC; Extradition of John
Demjanjuk.
159
Gencor Ltd.
160
Ibid, ¶¶90, 104.
2
recognised a movement away from territorial jurisdiction towards ‘effects’ jurisdiction.161 As
a result of extensive state practice, authorities have increasingly accepted the effects doctrine
as an accepted approach to territorial jurisdiction under international law.162
60. Despite the stark contrast between competition law and international criminal law, both aim
to ‘end impunity’ and prevent any ‘safe havens’.163 Accordingly, since the effects doctrine is
used in domestic antitrust cases and has gained international recognition, it should be used to
prosecute perpetrators of the most serious crimes of concern to the international
community.164 On balance, the need to protect fundamental common values of humanity by
punishing these types of crimes heavily outweighs the need to punish perpetrators of domestic
competition law.
61. In light of the nature of DPI to genocide, which by design is intended to cause direct effects
(whether a constituent element of the crime or not) in a targeted State, the Court should be
more inclined to exercise the effects doctrine. The posts led to two significant acts of genocide
by way of the Holy Day Attack and Election Massacre, as well as widespread violence and
the mass exodus of over 50,000 Stareks.165 There is evidently a substantial link between the
crimes of DPI to genocide committed by the Dragos members and the subsequent acts of
genocide and violence it prompted. In accordance with the U.S. and ECJ’s qualifications on
the application of the effects doctrine, the genocidal acts immediately followed each post with
up to 1,500 Starek deaths by January 2020.
62. Further, because the Dragos mission is to purify Solantis, it is clear that these consequences
are the intended effects of DPI to genocide. In any event, the crime of DPI to genocide requires
the perpetrator to intend to cause the effects, even though it is not a constituent element of the
crime. To that end, the effects occurring in Solantis are not random and sporadic but calculated
and targeted. The Dragos members committing DPI to genocide intend on the effects
crystallising. It is therefore necessary, in accordance with the preventative nature of the crime
and the Rome Statute’s overarching purpose of ending impunity, to assert jurisdiction on the
basis that these intended effects have been realised in Solantis.
161
Arrest Warrant Case, ¶47.
162
ILA Resolution, art 5; Gencor ¶¶90, 91; Ryngaert Antitrust (2008).
163
Vagias (2014), 166.
164
Ibid, 167.
165
Facts, ¶17.
2
SUBMISSIONS
In accordance with the arguments advanced above, the Prosecutor respectfully requests that the AC:
a. Affirm the PTC’s assessment of the Dragos group, its posts and the PTC’s finding that
there is sufficient evidence to establish substantial grounds to believe that the posts
constituted DPI to genocide;
b. Maintain the PTC’s finding that Bannister is criminally responsible for DPI as both a
principal and an aider and abettor; and
c. Uphold the PTC’s decision that the ICC has jurisdiction to hear Bannister’s case.
2

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COUNSEL FOR THE PROSECUTOR

Team 34 – Counsel for the Prosecutor

ICC Moot Court Competition in the English language

Total word count: 9,957

Original: English Date: 16 March 2020

THE APPEALS CHAMBER

Counsel for the Prosecutor’s Submission in the Appeal from Pre-

A. Standard of Review ............................................................................................................. 23

(a) The posts directly incited genocide. ............................................................................. 27

(b) The posts publicly incited genocide. ............................................................................ 30

IV. THE ICC HAS JURISDICTION TO PROSECUTE BANNISTER .......................................... 39

(a) An element of the ‘incitement’ occurred in Solantis ................................................... 41

‘EOC’ Elements of Crimes of the International Criminal Court (adopted

‘ICCPR’ International Convention on Civil and Political Rights (opened

‘ICJ Statute’ United Nations, Statute of the International Court of Justice, 18

‘ICTR Statute’ UN Security Council, Statute of the International Criminal

‘RPE’ Rules of Procedure and Evidence of the International Criminal

‘VCLT’ Vienna Convention on the Law of Treaties (opened for signature

‘Bemba et al AC’ The Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo

‘Bemba et al TC’ The Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo

‘Bemba TC’ The Prosecutor v Jean-Pierre Bemba Gombo (Judgement

‘Chui AC’ The Prosecutor v Matthieu Ngudjolo Chui (Judgment on the

‘Lubanga (confirmation of The Prosecutor v Thomas Lubanga Dyilo (Decision on the

‘Lubanga TC’ The Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to

‘Mbarushimana The Prosecutor v Callixte Mbarushimana (Decision on the

‘Mbarushimana PTC’ The Prosecutor v Callixte Mbarushimana (Decision on the

‘Myanmar PTC’ Situation in the People’s Republic of Bangladesh/Republic of the

‘Ntaganda (response)’ The Prosecutor v Bosco Ntaganda (Response to Bosco

‘Ntaganda (Sentencing)’ The Prosecutor v Bosco Ntaganda (Sentencing Judgement) ICC-

‘Akayesu TC’ The Prosecutor v Jean-Paul Akayesu (Judgement) ICTR-96-4-T

‘Bikindi TC’ The Prosecutor v Simon Bikindi ICTR-01-72-T Trial Chamber (2

‘Kajelijeli TC’ The Prosecutor v Juvénal Kajelijeli ICTR-98-44A-T Trial

‘Kalimanzira AC’ Callixte Kalimanzira v The Prosecutor ICTR-05-88-A Appeals

‘Kalimanzira TC’ The Prosecutor v Callixte Kalimanzira ICTR-05-88-T Trial

‘Karemera et al AC’ The Prosecutor v Édouard Karemera and Matthieu Ngirumpatse

‘Media Case AC’ The Prosecutor v Ferdinand Nahimana, Jean-Bosco

‘Media Case TC’ The Prosecutor v Ferdinand Nahimana, Jean-Bosco

‘Muvunyi TC’ The Prosecutor v Tharcisse Muvunyi ICTR-00-55A-T Trial

‘Ngirabatware TC’ The Prosecutor v Augustin Ngirabatware (Judgement and

‘Ngirabatware TC’ The Prosecutor v Augustin Ngirabatware ICTR-99-54-T Trial

‘Niyitegeka TC’ The Prosecutor v Eliézer Niyitegeka (Judgement and Sentence)

‘Nyiramasuhuko et al TC’ The Prosecutor v Pauline Nyiramasuhuko, Arsène Shalom

‘Nzabonimana AC’ Callixte Nzabonimana v The Prosecutor ICTR-98-44D-A

‘Ruggiu TC’ The Prosecutor v Georges Ruggiu (Judgement and Sentence)

European Court of Human Rights Decisions

‘Jersild v Denmark’ Jersild v Denmark, European Court of Human Rights, Judgment

‘Sürek v Turkey’ Sürek v Turkey (No. 1) European Court of Human Rights,

‘Zana v Turkey’ Zana v Turkey, European Court of Human Rights, Judgment of

United States Decisions

‘Extradition of John Matter of Extradition of Demjanjuk, 612 F. Supp. 544 (N.D.

‘Faurisson v France’ Robert Faurisson v France. Communication No. 550/1993, UN

‘Gencor Ltd’ Case T-102/96, Gencor Ltd v Commission of the European

‘Grossfillex-Fillistorf Grossfillex-Fillistorf, 1964 J.O (58) 915, 3 C.M.L.R. 237 (1964)

‘Mugesera’ Mugesera v Canada (Minister of Citizenship and Immigration)

‘Solicitor-General v Reid’ Solicitor-General v Reid [1997] 3 NZLR 617

‘Wood Pulp Case’ Ahlstrom Osakeyhtio And Others v Commission of The

‘Yahoo! 2004 Case’ Timothy K et Yahoo! v Ministere Public, Judgment of 17 March

‘Chinese Code’ Criminal Law of the People’s Republic of China, as published on

‘France Code’ Code Pénal, as published on 22 July 1992, last amended on 16

‘Luxembourg Code’ Code de Procédure Pénale

‘Madagascar Code’ Code de Procédure Pénale, as published on 20 September 1962

‘Mexico Code’ Código Penal Federal (Mexico), as published on 14 August