ARGUMENTS ADVANCED

A. THE PTC ERRED IN FINDING THAT THE CHARGED OFFENCES CAN BE

PROSECUTED AS “OTHER INHUMANE ACT” UNDER ARTICLE 7(1)(K) OF THE
STATUTE AND WHETHER THE PROSECUTION MET ITS DUTY TO
ESTABLISH WITH SUFFICIENT EVIDENCE THAT THERE WERE
SUBSTANTIAL GROUNDS TO BELIEVE THAT DEFENDANT DRAGONE
GOODRIDER ORDERED THE COMMISSION OF SUCH A CRIME UNDER
ARTICLE 25(3)(B) OF THE STATUTE.

The Defence humbly submits that the PTC erred in confirming charges against General
Goodrider as [I.] The charged offenses fail to satisfy the elements required for an act to be
prosecuted as crimes against humanity (“CAH”) under Article 7 (1)(k) of the Statute. [II.]
The decision is in direct violation of the principle of nullem crimen sine lege enshrined in
Article 22 of the Statute. [III.] The defense of necessity exculpates the charged offenses, [IV.]
evidentiary aspect
I. THE CHARGED OFFENSES FAIL TO SATISFY THE ELEMENTS REQUIRED FOR AN ACT TO BE
PROSECUTED AS CRIMES AGAINST HUMANITY (“CAH”) UNDER ARTICLE 7 (1)(K) OF THE
STATUTE
Article 7(1)(k) is a qualified residual clause which accommodates forms of inhumane conduct
not otherwise prohibited under Article 7.1 The Defence submits that the charged offenses fail
to meet the criteria required by the Statute to be prosecuted under Article 7(1)(k) as [a.] the
objective and subjective elements of Article 7(1)(k) are not satisfied in this case. [b.] In any
case, the acts were not committed in the context of a widespread or systematic attack directed
against a civilian population.
a) Alternatively, the objective and subjective elements of Article 7(1)(k) are not satisfied
in this case.
Other inhumane acts, under Article 7(1)(k), require the fulfilment of the [1.] objective and the
[2.] subjective elements of the crime.2 The Defence submits that neither of these elements are

1
Rome Statute of the International Criminal Court art. 82(1), Jul. 17, 1998, 2187 U.N.T.S. 90; Chistopher,
Larissa, Jurisdiction, Admissibility and Applicable Law, in COMMENTARY ON THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT 235 (Ambos ed., 2016).
2
ICC, Elements of Crimes art. 7(1)(c), ICC-ASP/1/3(II-B), 9 September 2002 [hereinafter Elements of Crimes].

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 satisfied in the present case.
1. THE OBJECTIVE ELEMENTS OF ARTICLE 7(1)(K) ARE NOT SATISFIED.
The objective elements of Article 7(1)(k) require the perpetrator to inflict great suffering or
serious injury by means of an inhumane act.3 Within the context of discussion of what
constitutes “inhumane act”, the Blaskic4 Trail Chamber held that for an act to be charged as
an offense, the accused or his subordinate must have been motivated by the intent to inflict
serious bodily and mental harm to be one of the prerequisites. 5 One of the circumscribing
notion that revolves around “other inhumane act” is that the nature of the harm so inflicted
should be of nature that causes injury to human dignity and integrity 6 such as mutilation,7
beating and other acts of violence,8 enforced pregnancy and prostitution,9 etc.

In the present case, there is nothing to show that the defendant was motivated with any mala
fide intent to inflict any harm on the population of Eassos, thereby establishing that the
alleged act does not tantamount to ‘inhumane act’ for the lack of fulfillment of the
prerequisite. Additionally, the charged offences cannot be compared to the likes of the
aforementioned crimes that are of such heinous nature that attempt to destroy and deteriorate
the very core of human dignity. On the contrary, the very roots of the conduct of the
defendant were based on the bona fide desire to save the population of Wessos from a potent
disease that could be a threat to the entire humankind.10
2. THE SUBJECTIVE ELEMENTS OF ARTICLE 7(1)(K) ARE NOT SATISFIED.

The subjective element of Article 7(1)(k) requires the aforementioned objective elements to
be committed with dolus directus of the first or the second degree, 11 with factual awareness
of the circumstances that established the character of the act. 12 However, the mens rea

3
supra
4
The Prosecutor v. Tihomir Blaskic 1T-95-14-A, Trial Judgment, ¶ 237 (ICTY Mar. 3, 2000).
5
The Prosecutor v. Tihomir Blaskic 1T-95-14-A, Trial Judgment, ¶ 239 (ICTY Mar. 3, 2000).
6
Prosecutor v. Krstić, IT-98-33-T, Trial Judgment, ¶510 (ICTY Aug. 2, 2001).
7
Prosecutor v. Kvočka, IT-98-30/1-T, Trial Judgment, ¶¶208-9 (ICTY Nov. 2, 2001).
8
Prosecutor v. Delalić, IT-96-21-T, Trial Judgment, ¶1034 (ICTY Nov. 16, 1998).
9
The Prosecutor v. Dusko Tadic, IT-94-1, Trial Judgment, ¶729 (ICTY May 07, 1997).
10
Moot prop, para 5.
11
Prosecutor v. Katanga, ICC-01/04-01/07, Decision on the confirmation of charges, ¶455 (Sept. 30, 2008).
12
Elements, supra note 2, at art. 7(1)(k).

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 requirement mentioned under Article 30 of the Statute has been limited to intent and
knowledge, leaving out other possible mens rea requirements such as recklessness or dolus
eventualis. This is not to say that these other forms do not exist, because they do, it is rather
to say that they are not sufficient for criminal liability as a general rule. 13 Moreover, the
Bemba Decision14 on the Confirmation of Charges declared that article 30 does not
accommodate for a lower threshold of intent than dolus directus in the second degree or the
so called ”oblique intent” of the common law tradition. Furthermore, in cases where
‘knowledge’ takes form of ‘awareness that a circumstance exists’ 15 does not itself meet the
mens rea requirement for crimes against humanity as conviction for the same is dependent
upon premediated form of offense, i.e; it requires both knowledge and intent.16

In the present case, the alleged offence does not come within the ambit of dolus directus as it
was highly impractical for the defendant to have possibly foreseen or to have known the
certainty of the outcome of what appeared to be an endemic given to the fact that it was
‘effectively’ contained on the Wessos side of border17 with basic steps of restricting human
movement and maintaining distance and isolation. 18 At its best, the alleged act could be said
to be under the domain of dolus eventualis, which is below the threshold requirement of mens
rea under Article 30 of the Statute.
b) In any case, the acts were not committed in the context of a widespread or systematic
attack directed against a civilian population.

To constitute CAH, an attack must be committed pursuant to a State or organisational policy,

in the context of a widespread or systematic attack directed against a civilian population. In
this regard, the requisite elements are not satisfied because [1.] the alleged act was neither
widespread nor systematic and was not directed against a civilian population.
3. THE ALLEGED ACT WAS NEITHER WIDESPREAD NOR SYSTEMATIC AND WAS NOT
DIRECTED AGAINST A CIVILIAN POPULATION.

Article 7 of the Statute of the ICC notes that the crimes in question have to be committed as part

13
Cassese, Gaeta, and Jones 2002, p. 850.
14
bemba decision
15
Article 30(3)
16
Article 30(1)
17
Moot prop para 13 pg 3.
18
Moot prop para 12 pg

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of a widespread or systematic attack directed against any civilian population.19 The phrase
‘directed against any civilian population’ as meaning ‘that the acts must occur on a widespread
or systematic basis, is interpreted to mean that there must be some form of a governmental,20
organizational or group policy21 to commit these acts and that the perpetrator must know of the
context within which his actions are taken’. The concept of widespread could be defined as
‘massive, frequent, large scale action, carried out collectively with considerable seriousness and
directed against a multiplicity of victims’, while ‘systematic’ could be defined as ‘thoroughly
organised and following a regular pattern on the basis of a common policy involving substantial
public or private resources.22
In the present case, there is nothing to show that the alleged offence was either widespread, i.e,
to say that it lacked frequent pattern or was massive; nor was it systematic as the same was not
orchestrated in pursuance of any State policy directed against the population of Eassos. Rather,
the sudden outbreak could be attributed to the unpredictable nature of the virus, beyond any
human control as there were practical limitation such as paucity of time to understand substantial
claims about the nature of virus.

c) The decision is in direct violation of the principle of nullem crimen sine lege enshrined
in Article 22 of the Statute.

The principle of nullum crimen sine lege, or “no crime without a law to prohibit it,” is a
fundamental tenet of criminal law and prohibits prosecution for acts or omissions that were not
forbidden by any law at the time of their occurrence. 23 The Defence humbly submits that
prosecution of the Defendant for the charged action is violative of the principle of legality
enshrined in Article 22 of the Statute 24 as [1.] The alleged act has not been expressly prohibited
by the Statute, [2.] International customary law in general are not to delineate substantive law of
the ICC.

19
The Prosecutor v. Dusko Tadic, IT-94-1, Trial Judgment, ¶580 (ICTY May 07, 1997).
20
The Prosecutor v. Tihomir Blaskic 1T-95-14-A, Trial Judgment, ¶ 203-204 (ICTY Mar. 3, 2000).
21
The Prosecutor v. Kayishema, ICTR-95-1-A, Appeals Judgment, ¶ 124 (ICTY May 21, 1999).
22
The Prosecutor v. Akayesu, ICTR-96-4-T Trial Judgment, ¶580 (ICTY Sept. 2, 1998).

23
ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 139-145 (2003)
24

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 4. THE ALLEGED ACT HAS NOT BEEN EXPRESSLY PROHIBITED BY THE STATUTE

The principle of nullum crimen contributes to a foreseeable legal system as it stipulates that only
actions which are prohibited by law can be deemed as criminal. This is an important part of the
legitimacy of a legal system, and in the case of the ICC it works both in relation to the
individuals under investigation and in relation to states.25 Article 22(1) of the Statute states the
principle of non-retroactivity, a certain conduct can only be deemed as illegal if that specific
conduct was prohibited at the time when the conduct took place. In cases when the specific
conduct was not criminalised at the time of the conduct, it prescribes that the person shall not be
convicted. Furthermore, the individual responsibility of the perpetrator arises directly under
international law, therefore, the fact that criminal conduct has been criminalised in national law
does not fulfil the principle of nullum crimen sine lege.26
In the present case, the charged offense has nowhere been defined under the statute as a crime.
Additionally, since the alleged act fails to satisfy the material elements of crime mentioned under
Article 7 and specific elements required for crime under Article 7(1)(k), the same cannot be said
to be a crime of similar nature.
5. INTERNATIONAL CUSTOMARY LAW IN GENERAL ARE NOT TO DELINEATE SUBSTANTIVE
LAW OF THE ICC.

Article 22(3) of the Statute acknowledges that the nullum crimen principle does not affect
customary international law and that it applies only to the definitions of crimes in the Rome
Statute,27 alternatively meaning that an individual is to be prosecuted solely on the basis of the
provisions of the Statute already existing when the crime was committed . Since the contents
and development of customary international law are dynamic in nature and cannot be written
25
Bruce Broomhall, "Article 22 – Nullum crimen sine lege", in Otto Triffterer (Ed.), Commentary on the Rome
Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H.
Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 716

26
Bruce Broomhall, "Article 22 – Nullum crimen sine lege", in Otto Triffterer (Ed.), Commentary on the
Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H.
Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 718

27
Bruce Broomhall, "Article 22 – Nullum crimen sine lege", in Otto Triffterer (Ed.), Commentary on the
Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H.
Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 713-729.

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 down or codified,28 it tends to violate the lex scripta and lex stricta requirements of Article 22
of the Statute.29 Article 22 further calls for a narrow interpretation of the Statute, barring the
use of analogy as a tool for law-making30

In the present case, assuming without admitting that even if the Defendant is liable under any
domestic law of Eassos, or any other customary international law, he cannot be prosecuted for
the same as that would tantamount to the development of a legal rule into the creation of a
new law, negating its valid interpretation, but rendering it to be an extension of the law by
analogy.

d) The defense of necessity exculpates the charged offences

Article 31(1)(d) of the Statute enshrined in Part III provides for the availability of the
defense of duress. The provision states that a person is not held criminally liable if his
conduct has been caused by duress resulting from a threat of imminent death or of continuing
or imminent serious bodily harm against that person or another person.31 Interestingly, the
draft Rome Statute treats the duress caused by other persons and duress triggered by
circumstances beyond that person’s control as two separate defenses, although the distinction
was not imported to the final text of the Statute.32

In the present case, assuming without admitting that even if the alleged act of the defendant
did amount to crime against humanity under Article 7(1)(k), he still is protected by the
defense of necessity because under the prevailing circumstances, the information about a
deadly virus escape would have caused a great panic and chaos among the population of
Wessos and neighboring countries, affecting international peace and worsening the already
deplorable situation pertaining to border disputes, insurgencies, and diplomatic relations.

28
Shaw, Malcolm N. International Law. Sixth Ed. Cambridge: Cambridge UP. 2010. pp. 73.
29
Boot, Machteld. Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject
Matter Jurisdiction of the International Criminal Court. Oxford: Intersentia. 2002. pp. 100-101.
30
Fletcher, George P. and Ohlin, Jens D. “Reclaiming Fundamental Principles of Criminal Law in the Darfur Case.”
Journal of International Criminal Justice. Vol. 3, (2005). pp. 551-552
31
Rome Statute of the International Criminal Court art. 31(1)(d), Jul. 17, 1998, 2187 U.N.T.S. 90
32
Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute for
the International Criminal Court, A/CONF.183/2/Add.1 14 April 1998. Article 31 (1)(d) speaks of the concept of
duress stricto sensu, whereas Article 31(1)(e) embraces the necessity defence which is triggered by external
circumstances

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