Prosecutor s memorial 2

TABLE OF CONTENTS

I. II. III. IV. V. VI.

TABLE OF CONTENTS ..2 STATEMENT OF FACTS...3 ISSUES....5 SUMMARY OF ARGUMENTS..6 STATEMENT OF JURISDICTION...6 WRITTEN ARGUMENTS..7 A. Jurisdiction of the Court.......7 I. Nature of the Crimes Provide the Court with Subject Matter Jurisdiction....7 II. Joint Criminal Enterprise is Within the Jurisdiction of The ICC ....7 III. The Court has Temporal Jurisdiction.9 IV. The Court has Territorial Jurisdiction ......9 V. The Prosecutor Properly Initiated an Investigation Propio Motu..10 B. Admissibility ...10 I. The Case is Admissible Before the ICC Because No Other State Can Properly Conduct the Prosecution .....10 II. Hegia is Not a Willing Jurisdiction11 C. Victims Participation.12 Scope of Participation.12 D. Legality of Arrest ..13 I. Torzows Arrest..13 II. A Compensation Claim by Torzow is Improper..15 E. Evidentiary Issues .15 I. Witness Testimony is Admissible .15 II. Statement by Anonymous Witness y-14 taken on 23 January 2007 .15 III. Statement by Witnessy21 taken on 20 January 2007; Witness is Deceased ..16

VII.

SUBMISSIONS ...17 Prayer for Relief......17 BIBLIOGRAPHY 18

VIII.

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STATEMENT OF FACTS Hegia as it formerly existed was a large, multi-ethnic state. In 1980s after a brief civil war, this state disintigrated into several smaller states. Arista is one of the countries that seceded. There have been tensions between the two countries ever since, especially because a substantial minority of Hegians lives under Aristan rule in the northern part of the country. On February 14, 2005, Arista became a state party to the ICC Statute. Hegia has signed, but not ratified the ICC Statute. Both states are parties to the Geneva Conventions of 1949, the Additional Protocols of 1977 and the ICCPR. The Hegians in Arista, led by Robert Barba formed and organized a small rebel army with the aim of seceding from Arista and joining Hegia. In October 2006 the Hegian rebels in Arista attacked a number of Aristan army bases. The rebels also attacked Aristan civilians in Astoria, a predominantly Hegian city in the north of Arista. In that attack an estimated 100 innocent civilians of Aristan ethnicity were killed. In response, the central authorities in Arista launched an armed attack against those rebel forces. The President of Hegia responded to the attack and sent General Eric Torzow to assist the rebel forces. On December 25, 2005 General Eric Torzow led an army attack on the Aristan central army, together with the rebel forces directed by Robert Barba. This joint air and land attack throughout Arista managed to eliminate about 75% of the Aristan central army. Furthermore, Hegian military forces, under the direct command of General Torzow did not stop there. On January 1, 2007 the village of Kuna was the victim of a devastating military attack. Military forces entered the village of Kuna on the border between the northern Hegian region and other parts of Arista. They killed most of the inhabitants of Kuna, an estimated 500 people. There are also reports of widespread rape, looting and arson occurring in Kuna during the attack.

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The President of Arista condemned the attack and called for the prosecution of those responsible. Rebel forces and Hegia denied responsibility and blamed each other for the attack. On February 1, 2007 in response to the crimes that occurred in Kuna, General Eric Torzow was taken into custody by the Aristan police. He was accused of and officially indicted for command responsibility for various war crimes and crimes against humanity committed in Kuna, on January 1, 2007. On January 29, 2007 before the abduction and arrest of Torzow, the ICC Prosecutor announced that he intended to initiate an investigation proprio motu in the Hegia-Arista conflict with special attention for the Kuna-incident. The authorization to do so was given by the ICC Pre-trial Chamber on February 20,2007. Shortly thereafter on March 15, 2007 the Prosecutor, on the basis of the results of his investigation into the attack upon Kuna, submitted to the Pre-Trial Chamber an application for an arrest warrant for Eric Torzow, pursuant to Article 58 of the Statute. The Prosecutors application was based on the accusation that on 1 January 2007 in Kuna, Eric Torzow and Robert Barba with other persons jointly committed, as a joint criminal enterprise, within the meaning of article 25(3)(a) of the Statute, the war crimes of: a. directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute; b. willful killings under article 8(2)(a)(i) of the Statute; and c. destruction of property under article 8(2)(b)(xiii) of the Statute. On March 22, 2007, the Pre-Trial Chamber issued an arrest warrant for Eric Torzow and requested Arista, pursuant to Article 89 of the Statute, to surrender him to the ICC. The Pre-Trial Chamber ruled that the ICC had jurisdiction, that the case appeared admissible, and that there was sufficient evidence and grounds to justify arrest and surrender. On March 30, 2007 Eric Torzow was surrendered to the ICC; his initial appearance took place on April 2, 2007. The charges for which the Prosecutor seeks confirmation are the same as set out in the application for the arrest warrant: on 1 January 2007 in Kuna Eric Torzow and

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Robert Barba with other persons jointly committed, as a joint criminal enterprise, within the meaning of article 25(3)(a) of the Statute, the war crimes of: a. directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute; b. willful killings under article 8(2)(a)(i) of the Statute; and c. destruction of property under article 8(2)(b)(xiii) of the Statute.

ISSUES 1) Whether in light of the proposed charges, this courts jurisdiction is proper. 2) Whether this matter is admissible to this court. 3) Whether the proposed scope of Victim xx01-10s participation at the hearing proper. 4) Whether Eric Torzows arrest was legally proper, and, if not, whether Gen.Torzow is entitled to relief. 5) Whether the following evidentiary items are admissible: i) Statements by witness y21, now deceased, taken on January 20, 2007 by investigators from the Office of the Prosecution. ii) Statements made by witness y14 that were taken by investigators from the Office of the Prosecution on January 23, 2007. is

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SUMMARY OF ARGUMENTS Truly, the conflict between Hegia and Arista is detrimental to both countries. It is a case over which the ICC must have to resolve for it is a serious crime of international concern and as stated in the Rome Statute preamble Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole. Before the ICC is a particularly alarming attack against innocent Aristan civilians. Instructed by the Hegian president, General Torzow is answerable for the Kuna Attack which left hundreds of innocent people dead. Moreover, actions of Torzow and his military forces constitute war crimes and as such, it is within the jurisdiction of the ICC. Because neither Arista or Hegia are able or willing to prosecute the offenders, it is proper for the ICC to assume jurisdiction over the case. Additionally, there are victims and witnesses that play a major role in this case. Their interests would be best served if they are allowed to make limited contributions to the case. For these reasons, and in the interest of justice, the case against the Accused should proceed. STATEMENT OF JURISDICTION This Court has subject matter jurisdiction pursuant to Article 13 paragraph C of the Rome Statute the prosecutor has initiated an investigation in respect of such crime in accordance with article 15, because the case arises under International Law and the Rome Statute. This action seeks redress and damages for violation of Article 5, in particular, war crimes. The Court has jurisdiction ratione temporis pursuant to article 11(2) If a state becomes a party to this statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under Article 12, paragraph 3. The war crimes committed by the Accused occurred on 1 January 2007, a date both after

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the entry into force of the Rome Statute (1 July 2002), and after Arista became a State Party (14 February 2005).

WRITTEN ARGUMENTS A. JURISDICTION OF THE COURT

I. The Nature of the Crimes Provide the Court with Subject Matter Jurisdiction

The Court has subject matter jurisdiction over this case due to the nature of the crimes. Pursuant to Article 5 of the Roman Statute, the Court has jurisdiction with respect to the following crimes: (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; (d) the crime of aggression. The crimes committed in Kuna constitute war crimes. Therefore, the incident in question falls under the Courts jurisdiction. (Rome Statute, Art 5). According to Article 8, a war crime means, serious violation of the laws and customs applicable in international armed conflict, within the established framework of international law, namely,(1) intentionally directing attacks against the civilian population as such or against individual citizens not taking direct part in hostilities(Rome Statute, Art.8). Furthermore, included in the definition of war crimes pursuant to Article 8 is willful killingand destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war.Due to the conflict between Arista and Hegia, and the fact that the attack was intentionally directed at the civilian population of Kuna, the actions here rise to the level of war crimes. The perpetrators of the attack on Kuna murdered practically all inhabitants of the village estimated at 500 persons - and there are reports of widespread rape. Furthermore, there was widespread looting and several instances of arson. All of the acts are contrary to the international law governing armed conflict. Therefore, the charges of war crimes against Torzow should be allowed to proceed to trial. II. Joint Criminal Enterprise is Within the Jurisdiction of the ICC. According to Article 25(3)(a) if several people act together in committing a crime under international law, each one is individually responsible for the crime. What is

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crucial for co-perpetration is criminal cooperation within the framework of a common plan or design. It provided that every co-perpetrator is responsible for the whole crime committed within the framework of the common plan. Here, Torzow and Barba had a common plan to prevent the commission of further war crimes against Hegian people. The plan included expelling the Aristan army from the northern region and protecting the Hegian minority. The Kuna attack was also a part of this plan. Therefore, the acts committed by Torzow to further this plan constitute joint criminal enterprise. Under joint criminal enterprise, participants are responsible for crimes committed within the framework of the common plan. Nevertheless, a participant in a joint criminal enterprise can be held accountable for crimes not included in the common plan if they are the 'natural and foreseeable consequence' of the plan's execution. Torzow accepted the risk of the consequence occurring by orchestrating and ordering the attack on Kuna. The ICC Pre-Trial Chamber, in the Lubanga case, determined that an essential contribution to the realization of the common plan can be rendered in the course of the physical perpetration of the crime, and also by planning or otherwise organizing the actual commission of the crime. Here, the village was attacked by military forces and not rebel forces. As such, the attackers, under Torzows leadership, were the primary perpetrators of the attack. Additionally, each co-perpetrator has to act with the requisite mens rea for the crime. This is certainly the case where the common purpose explicitly involves the commission of the crime like in this case. The liability for joint commission depends on the mental element provided for in the definition of the crime. The ICC PreTrial Chamber, in the Lubanga case, has stated that unless otherwise provided in the definition of the crime, it suffices that the co-perpetrator is aware of the risk that the crime might be committed in the execution of the common plan, and that he accepted that risk. Torzow intentionally attacked the village of Kuna and therefore assumed responsibility for all of the actions of any of his subordinates while they carried out his orders.

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III. The Court has Temporal Jurisdiction. The court can only prosecute crimes that have occurred after the entry into force of the Rome Statute. (Rome Statute, Art 11). If a state is a signatory to the Rome Statute, the Court has jurisdiction over crimes committed after its entry into force with respect to that State. (Rome Statute, Art 11(2)). The attack on Kuna occurred over two years after Arista signed the Rome Statute. Hegia has also signed the statute. Furthermore, both states are parties of the Geneva Conventions of 1949, the Additional Protocols of 1977 and the ICCPR. Therefore, since the attack on the village of Kuna after the entry into force of the Rome Statute the court has temporal jurisdiction.

IV. The Court has Territorial Jurisdiction. Article 12 (2) of the Rome Statute states that the ICC has jurisdiction over crimes committed in the territory of a state party to the statute, regardless of the nationality of the offender. The Court may exercise jurisdiction if one or more of the following states are parties or have accepted jurisdiction of the Court(a) the State on the territory of which the conduct in question occurred; (b) that State of which the person accused of the crime is a national. (Rome Statute, Art 12(2)). There is no dispute that the crime in question occurred on the territory of Arista, particularly in the village of Kuna. The Defense may also seek to defeat territorial jurisdiction with the claim that the northern Hegian region, Kuna included, was never a part of Arista when Arista successfully seceded from Hegia in the 1980s. This claim is manifestly implausible given that Robert Barba is leading the Hegian ethnic minority in Arista in an armed movement with the avowed goal of seceding from Arista. Such a secessionist movement would be a contradiction in terms if the northern region of Arista were already a part of Hegia proper. Nor has the northern Hegian region seceded and rejoined Hegia, or become a separate rump state. The international community saves its rare recognition for those secessionists movements that seek peaceful coexistence over a period of years; in the situation at hand the secessionist movement has been anything but peaceful, already

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claiming at least 850 civilian lives,and there is little evidence that a coherent secessionist movement began prior to October 2006. Territorial jurisdiction over the crimes for which General Torzow is indicted is conclusively established.

V. The Prosecutor properly initiated an investigation proprio motu. The Prosecutor properly initiated an investigation proprio motu on the basis of information within the jurisdiction of the court. The Prosecutor analyzed the seriousness of the information received and then concluded that there was a reasonable basis to proceed with an investigation. On February 20, 2007 the Prosecutor received authorization of investigation from the Pre-Trial Chamber. (Art. 15, Rome Statute)

B. ADMISSIBILITY I. The Case is Admissible before the ICC Because No Other State Can Properly Conduct the Prosecution. Hegia and Arista are the only states with potential jurisdiction over the current proceedings. Arista, being the territory on which the attacks occurred, has territorial jurisdiction. Hegias jurisdiction is based on the nationality of the offender being that Torzow is Hegian national. Arista and Hegia are the primary jurisdictions to hear the Attack on Kuna proceeding. However, neither is capable of providing an adequate and impartial judicial process. Therefore, based on the principle of complementarity, the ICC may exercise its jurisdiction. Paragraph 10 of the Preamble of the Rome Statute dictates that the ICC is to be complementary to national criminal jurisdiction. (Rome Statute, Preamble). Therefore, a case is inadmissible when it is being appropriately dealt with by a national justice system. The Court may only proceed where the State is unwilling or unable genuinely to carry out the investigation or prosecution. (Rome Statute, Art 17(1)). Therefore, if there is an appropriate and willing jurisdiction, the ICC is unable to hear the case according to the terms of the Statute.

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Arista is unable to hold the proceedings due to the current conflict between it and Hegia. Hegia would not be able to provide a fair and impartial proceeding and has not met the requisite procedural requirements to prevent the ICC from moving forward in the matter. Presently, the lack of any competent and impartial national jurisdiction purports this case to be admissible before the ICC. Arista has suffered greatly as a result of the attack on Kuna and is unable to hold proceedings related to the Kuna Attack, despite having the jurisdiction to do so. Additionally, Torzows kidnapping suggests that tensions in Arista will prevent Torzow from receiving a fair trial. Furthermore, Arista handed Torzow over to the ICC without any resistance. Following Torzows arrest, Arista did not conduct any investigation or demonstrate any intent to prosecute the defendant; this is evidence of Aristas wish for ICC assistance.

II. Hegia is Not a Willing Jurisdiction Hegia, through its actions since the attack upon Kuna, has proven itself to be an unwilling jurisdiction. By virtue of its failure to initiate prosecution, denial of responsibility for the attacks and Hegias political gain that has resulted from this tragedy, the states intent to avoid a proper prosecution has been revealed. A state is to be deemed unwilling when the proceedings are not being conducted independently and impartially, and they are being conducted in a manner inconsistent with intent to bringing the person concerned to justice. (Rome Statute, Art. 17 2 (c)). Therefore a state must be independent and impartial in order to be deemed a willing jurisdiction. Hegia is clearly not an impartial jurisdiction. Since the end of the civil war, there has been tension between Hegia and Arista, especially because a substantial minority of Hegians lives under Aristan rule in the northern part of the country. The chaos that the attack has caused has furthered the interest of Hegia, Aristas enemy. As such, Hegia is not an impartial jurisdiction.

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Hegias political lineup also illuminated its bias. The president of Hegia, Torzow and Barba are all co-perpetrators of this crime. The Hegian President instructed Torzow and Barba to conduct military operations against Arista. The Hegian President, Torzow, and Barba were working to carry out the same agenda. To entrust Hegia, led by the very people responsible for the attack upon the innocent villagers of Kuna, to prosecute the culprits, would inextricably lead to injustice. Hegia, with a leader who is politically associated with the accused, would not provide impartial proceedings in this matter. Furthermore, Hegias actions are inconsistent with the requisite intent to seek justice. Unwillingness will be found when there has been an unjustified delay in the proceedings, which in the circumstances, is inconsistent with intent to bring the person concerned to justice. (Rome Statute, Art. 17(2) (b)). The inaction of Hegia shows that the state does not intend to prosecute its nationals for this crime. The Kuna Attack occurred on 1 January 2007. In March 2007 Torzow was surrendered to The Hague. Four months passed, hundreds of Aristans and Hegians died, and the ICC has conducted a full investigation. Despite knowledge of the attack, the prosecutor investigation, and Torzows detention by the ICC, Hegia did not come forward with formal charges. To prosecute timely would naturally involve initiating an investigation immediately after the incident or contributing to the incarceration of the suspects. Hegia conducted no investigation of its own, nor did it express intent to do so. Hegia has remained uninvolved in the investigation process, by doing so Hegia has revealed that it does not wish to prosecute the case.

C. VICTIMS PARTICIPATION I. Scope of Participation The participation of the Legal Representatives of the Victims (Victims) in hearings will contribute positive benefit to the trial process and can add constructively to the trial proceeding in a mode that is not prejudicial to the fairness of the proceedings and the rights of the accused.

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Victims participation in ICC proceedings could help satisfy their important needs to: 1) receive financial compensation for their harms; 2) see that culprits get retribution so long as the punishment is reasonable; 3) have a forum to speak and be heard; and 4) obtain closure and truth about the political affairs behind their harms. They are in the best position to know and express the brutality of the crimes that took place on January 1st, 2007, and this is why their participation is imperative. The victims must be safe from outside intimidation and threat in order for them to fulfill their role and achieve their goals. The protection of these victims is demanded by international law and protective measures shall be granted to them. (Rule 87). Any anonymity deriving from this protection should not impinge on their rights to seek justice insofar as it is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. (Rome Statute, Art. 68 (3)). Victims can submit their views and concerns when their personal interests are affected as long as it is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial, (Rome Statute, Art 68 (3)) and make representations to the Pre-Trial Chamber. (Rome Statute, Art 15 (3)). However, the victims influence should be regulated to ensure that objectivity and integrity of the Prosecutor's investigation is not jeopardized. Unlimited participation of the Victims in this trial will extend proceedings and could potentially violate the defendants right under Article 67 (1)(c) to a fair trial of undue delay. The unlimited participation of 10 victims in this trial may place an undue burden on the Court and the Defendant.

D. LEGALITY OF ARREST I. Torzows Arrest The manner in which General Torzow came into ICC custody was legal, and his prosecution should proceed. The Aristan police arrested and took General Torzow into custody in Vorta, Aristas capital city, just after after he had been abducted, on January 1 2007, by unknwown individuals in the Hegian region of Arista. The Pre-Trial Chamber

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first issued a warrant for his arrest weeks later, on March 22, 2007 and Arista surrendered General Torzow to the Court on March 30, 2007. The arrest and surrender of the Torzow was properly conducted by Arista in accordance with the requirements of the Rome Statute. Moreover, nothing in the facts establishes any misconduct by any agent of this Court that violated the rights of the accused. Hence, the Court can try the case without any impediment. In accordance to the claims the illegality of the arrest of Torzow, the requirements of Article 55 of the Statute were met, to wit: In respect of an investigation under this Statute, a person: (a) Shall not be compelled to incriminate himself or herself or to confess guilt; (b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment; (c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and (d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute. Article 55 of the Rome Statute regulates the rights of persons accused during an investigation. The rule identifies the basic rights recognized in international law that an accused is entitled to. The accused is entitled to a fair trial and certain procedures must be followed to ensure due process. (Rome Statute, Art 55). However there is nothing in the Rome Statute which mentions the legality of the arrest of the person in the host country before the arrest warrant has been issued. Moreover, in Article 59 of the Rome Statute, a State party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9. It is not in dispute the General Eric Torzow was illegally abducted by unknown individuals. However, unless there is evidence that shows a connection between the actions committed by these unknown individuals and the authorities of Arista, and proof of a concerted action between the Prosecutor and the authorities in Arista to bypass the

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legal process and deprive the accused of his rights, then any application for illegal arrest will be denied.

II. A Compensation Claim by Torzow Is Improper Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. (Rome Statute, Art 85). The legality of the Torzows initial arrest is not an issue for the ICC to determine. The prosecutor properly requested that Arista be handed over to the ICC after he was already in Aristan custody. The ICC played no role in Torzows arrest and is not responsible for the actions of Aristan civilians. Therefore, the legality of the arrest is a separate issue to be determined by the Aristan judicial system, not the ICC.

E. EVIDENTIARY ISSUES I. Witness Testimony is Admissible The participation of the witnesses should not be limited by the Defense. The Defense may argue that the participation of 10 anonymous victims, one participating as a witness, as well as the inclusion of a statement from a witness that has died could potentially violate the accuseds right under Article 67 (1)(e) to confront and examine witness against them. It is their duty to demonstrate why their interests are affected by the evidence or issue then, on an ad hoc, case-by-case basis the Chamber will decide whether or not to allow such participation. This participation of the victims will undoubtedly create conflicts with the parties in the case and as such it is in the interest of justice to limit their role.

II. Statement by Anonymous Witness y-14 taken on 23 January 2007; Witness y14 in this case is also participating as anonymous victim xx04 in the proceedings. Victim xx04 seeks protection of the court while participating in the trial. Neither the Statute nor the Rules excludes victims from participating in the proceedings

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to testify as witnesses. However, it must be established on a case-by-case evaluation whether the participation by a victim who is also a witness may adversely affect the rights of the defense at a particular stage in the case. Based on the value of protecting witnesses, victim xx04 should be allowed to also participate as anonymous witness y14.

III. Statement by Witness y21 taken on 20 January 2007; Witness is Deceased In this case, witness y21 has died after making statements to investigators of the Office of the Prosecution. Yet again, neither the Statute nor the Rules explicitly excludes the Court from hearing the testimony of a dead witness. According to Article 69 paragraph 2 the testimony of a witness at trial shall be givewn in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and evidence. The court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused. Here, based on the value of protecting the dignity of witnesses set forth in Article 68 and the relevant case law of the Court, the testimony of witness y21 should be heard.

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VII. SUBMISSIONS A. PRAYER FOR RELIEF WHEREFORE, the Prosecutor respectfully requests that this Court: (a) Exercise jurisdiction over the Kuna attackers; and Find the case admissible before the court; and, (c) Deny the defenses challenges to the courts jurisdiction. Furthermore, the Prosecutor respectfully requests this Court to enter its Order confirming the charges as set out in the application for the arrest warrant: on 1 January 2007 in Kuna Eric Torzow and Robert Barba with other persons jointly committed, as a joint criminal enterprise, within the meaning of article 25(3)(a) of the Statute, the war crimes of: a. directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute; b.willful killings under article 8(2)(a)(i) of the Statute; and c. destruction of property under article 8(2)(b)(xiii) of the Statute.

Respecfully Submitted, Jennifer Navarrete-Alvis Zander Alexis Bonnevie Christine Frances G. Impelido Norman Tacderan. Counsel for the Prosecutor October 2010

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BIBLIOGRAPHY Rome Statute of the International Criminal Court Pace / ICLN International Criminal Court Moot