Nuremberg Moot Court 2020-Maastricht University-Prosecution Memo

NUREMBERG MOOT COURT 2020
TEAM: N063
PROSECUTION
1
Table of Contents
I. The case against Ms. Calanta falls within the jurisdiction of the Court under Arts. 5 and 12(2)(a)
........................................................................................................................................................................................................... 3
I.A. The Court has territorial jurisdiction over the crimes against humanity of deportation and murder
under Art. 12(2)(a).................................................................................................................................. 3
I.A.1. The deportation of more than 3,000 Islanders was completed in Verden ................................ 3
I.A.2. The murder of 14 Islanders occurred on the territory of Verden ............................................. 3
I.B. The crimes against humanity of deportation and murder fall within the subject matter jurisdiction
of the Court according to Arts. 5(b), 7(1)(a) and (d) ............................................................................. 4
I.B.1. The material and contextual elements for the crime against humanity of deportation are
fulfilled ................................................................................................................................................ 4
I.B.1.a. The Islanders were lawfully present on the territory of Cintria......................................... 4
I.B.1.b. More than 3,000 Islanders were deported without grounds permitted under international
law .................................................................................................................................................. 5
I.B.1.c. The attack directed against the Islanders was systematic .................................................. 6
I.B.2. The material and contextual elements for the crime against humanity of murder are fulfilled6
II. The case against Ms. Calanta is admissible before the Court under Art. 17(1)(a) and (d) ............. 7
II.A. Cintria is not undertaking investigations or prosecutions against Ms. Calanta ............................ 7
II.B. Given the manner and impact of the crimes committed, the case is of sufficient gravity to justify
further action by the Court ..................................................................................................................... 7
III. There are reasonable grounds to believe that Ms. Calanta is individually criminally responsible
as an indirect co-perpetrator for the crime against humanity of deportation under Art. 25(3)(a) ... 9
III.A. Ms. Calanta and Mr. Marshal agreed on a common plan .......................................................... 10
III.B. Ms. Calanta made an essential contribution ............................................................................... 10
III.C. Ms. Calanta had control over the Cintrian Government and the Government was hierarchically
organised .............................................................................................................................................. 11
III.D. Compliance with Ms. Calanta and Mr. Marshal’s orders were ensured with ‘no exceptions’ .. 11
III.E. Ms. Calanta had the intent and knowledge to commit the deportation....................................... 11
III.F. Ms. Calanta and Mr. Marshal were mutually aware and accepted that the implementation of the
Immigration Act would result in the deportation of Islanders ............................................................. 12
III.G. Ms. Calanta and Mr. Marshal were aware of the factual circumstances enabling them to exercise
joint control over the commission of the crime through another person.............................................. 12
IV. There are reasonable grounds to believe that Ms. Calanta is individually criminally responsible
for ordering the crime against humanity of murder under Art. 25(3)(b) .................................................... 13
IV.A. Ms. Calanta held a position of authority and ordered the deportation of Islanders through Mr.
Marshal ................................................................................................................................................. 13
IV.B. Ms. Calanta’s order had a direct effect on the commission of the crime .................................... 14
IV.C. Ms. Calanta was aware that Islanders would die during the deportation as a consequence of the
terrible conditions in the Cintrian detention centres and her order requiring “no exceptions” ......... 14
V. Prayer for relief ................................................................................................................................................................. 14
2
I. The case against Ms. Calanta falls within the jurisdiction of the Court under Arts. 5 and
12(2)(a)
I.A. The Court has territorial jurisdiction over the crimes against humanity of deportation and murder
under Art. 12(2)(a)
I.A.1. The deportation of more than 3,000 Islanders was completed in Verden
1. In order for the Court to exercise jurisdiction pursuant to Art. 12(2)(a) of the Rome Statute,1 “at
least one legal element of a crime within the jurisdiction of the Court” must be committed on the
territory of a State Party.2
2. Given the “inherently transboundary nature” of the crime of deportation,3 the conduct related to
deportation “necessarily takes place on the territories of at least two States.”4 The deportation of
more than 3,000 Islanders originated in Cintria, which is not a State Party to the Rome Statute5
and was completed in Verden,6 a State Party to the Rome Statute.7 Acts of deportation “initiated
in a State not Party to the Statute and completed in a State Party to the Statute fall within the
parameters of article 12(2)(a).”8 Therefore, the Court may exercise jurisdiction with regard to the
crime of deportation.
I.A.2. The murder of 14 Islanders occurred on the territory of Verden
3. The rationale enabling the Court to exercise jurisdiction where at least one legal element of the
crime occurs on the territory of a State Party9 may apply to “other crimes within the jurisdiction
of the Court”10 including murder as a crime against humanity.
4. Two Islanders died in Verden.11 As the first element of murder occurred in Verden, the Court
may exercise jurisdiction pursuant to Art. 12(2)(a).
1
Hereinafter, all reference to provisions shall be to the Rome Statute of the International Criminal Court, unless otherwise
indicated.
2
ICC, Decision on the Prosecution’s Request for a Ruling on Jurisdiction under Art. 19(3) of the Statute, ICC-RoC46(3)-
01/18, 6 September 2018, para. 64; ICC, 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,
14 November 2019, paras. 1, 43.
3
01/18, 6 September 2018, paras. 55, 71.
4
Ibid., para. 71.
5
Case facts, para. 2.
6
7
8
01/18, 6 September 2018, para. 73.
9
Ibid., para. 64.
10
Ibid., para. 74.
11
Case facts, paras. 14, 17.
3
5. A further 12 Islanders died during their transfer to Verden.12 The Cintrian Government imposed
a strict deportation process.13 The process required Islanders to be held in detention centres in
Cintria before being transported to Verden.14 As the Islanders did not die in Cintria,15 there are
reasonable grounds to believe that they died in Verden. Therefore, the Court may exercise
territorial jurisdiction over the murder of the 12 Islanders.
I.B. The crimes against humanity of deportation and murder fall within the subject matter jurisdiction
of the Court according to Arts. 5(b), 7(1)(a) and (d)
I.B.1. The material and contextual elements for the crime against humanity of deportation are fulfilled
I.B.1.a. The Islanders were lawfully present on the territory of Cintria
6. The lawful presence of a person must be “assessed on the basis of international law.”16 The 1951
Convention and Protocol Relating to the Status of Refugees17 applies to persons “who have a
well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a
particular social group, or political opinion.”18 A ‘well-founded fear’ is determined by an
“assessment of the consequences that an applicant having certain political dispositions would
have to face”19 if he/she was returned to the country he/she fled. The mere fact that an individual
refuses “to avail himself of the protection of his Government”20 or return, may disclose the
individual’s true state of mind and give rise to fear of persecution.21
7. The Islanders fled the Island of Spellige due to the intense king tides that destroyed homes and
businesses and due to the recurring dire high sea levels in Spellige.22 Climate, environmental
degradation and natural disasters interact with the refugee movement.23 While climate refugees
do not qualify as a protected category as such under the Refugee Convention, refugees who flee
as a result of climate change require protection and assistance.24 Indeed, “there is a case for
12
13
14
15
Clarifications on the case facts, para. 2.
16
ICC, 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, 14 November 2019, para. 99; ICTY,
Prosecutor v. Popović, IT-05-88-T, 10 June 2010, para 900.
17
Hereinafter: Refugee Convention.
18
Case facts, para. 13; Cintria ratified the 1951 Convention relating to the Status of refugees in 1951; Convention and
Protocol Relating to the Status of Refugees, Resolution 2198 (XXI) adopted by the UN General Assembly, 1951,
Art.1(A)(2).
19
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the
1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1, Geneva, January 1992, para. 83.
20
Ibid.
21
Ibid.
22
Case facts, paras. 5-6.
23
UNHCR, Report of the United Nations High Commissioner for Refugees, Part II Global compact on refugees, A/73/12,
13 September 2018, para. 8.
24
United Nations High Commissioner for Refugees, Mandate for the High Commissioner for Refugees and his Office
Executive summary, p. 1.
4
refugee protection in situations where harmful action or inaction by a government in dealing with
climate related events”25 is intertwined with one or more grounds in the Refugee Convention
which results in persecution.
8. The President of Spellige did not provide protection or assistance during the climate crisis and
ordered violent repression of any opposition and critics.26 Among the Islanders that returned to
Spellige, 125 were imprisoned for denouncing Jarl of Spellige’s inaction.27 Therefore, this
qualifies as “fear of being persecuted” based on political opinions under the Refugee
Convention.28 For these reasons, the Islanders fall into the category of refugee under the Refugee
Convention29 and consequently, benefit from the rights and guarantees provided under the
Refugee Convention.30 This includes the right to choose a place of residence.31
I.B.1.b. More than 3,000 Islanders were deported without grounds permitted under international
law
9. With regards to the Islanders arriving in Cintria after March 2018, their asylum claims were
automatically rejected without due process.32 They are refugees and as such, should benefit from
the rights and guarantees provided under the Refugee Convention.33 The expulsion of refugees
must be “in pursuance of a decision reached in accordance with due process of law.”34 States
should allow a “reasonable period” within which a refugee might seek legal admission into
another country.35 Such measures were not taken by the Cintrian Government36 and therefore,
the deportation was not permitted under the Refugee Convention.
10. The Islanders who were lawfully living and working in Cintria were arrested, stripped of their
permanent status or work visas and removed to Verden.37 Individuals who face a criminal charge
must be brought promptly before a judge and are entitled to a trial within reasonable time or to
25
United Nations High Commissioner for Refugees, UNHCR, the environment & climate change, October 2015, p. 9,
footnote 10.
26
Case facts, paras. 4, 5, 19.
27
28
Convention and Protocol Relating to the Status of Refugees, Resolution 2198 (XXI) adopted by the UN General
Assembly, 1951, Art.1(A)(2).
29
Ibid.
30
Assembly, 1951, Arts. 3, 7, 26, 32.
31
Assembly, 1951, Art. 26.
32
33
Assembly, 1951, Arts. 3, 7(1), 16(1), 27.
34
Assembly, 1951, Art. 32(2)(3).
35
Ibid.
36
37
5
release.38 Islanders detained in the Cintrian detention centres were denied access to lawyers and
interpreters and were denied a fair hearing before a judge.39 Accordingly, the deportation was
without grounds permitted under international law.40
I.B.1.c. The attack directed against the Islanders was systematic
11. The systematic nature of an attack refers to a high degree of organisation.41 The continuous
commission of a crime, the use of resources, planning or political objectives42 are characteristics
of a systematic attack.
12. The deportation policy43 imposed under the Immigration Act44 was specifically targeted at
Islanders.45 This constitutes a policy by a State in which it “actively promotes and encourages
such an attack against the civilian population.”46 The implementation of the Immigration Act
reflects the characteristics of a systematic attack.47 Firstly, the policy follows a regular pattern of
Cintrian police controls, arrests, visits from immigration officers in homes, workplaces, schools
and deportation transfers.48 Secondly, the police and immigration officers were used to carry out
the policy. Finally, the policy follows the political objective of Ms. Calanta and her far-right anti-
immigration party constituting the majority in the Government.49
I.B.2. The material and contextual elements for the crime against humanity of murder are fulfilled
13. The material elements of murder require that the victim died and that the death resulted “from
the act of murder.”50 Fourteen Islanders were killed while being transferred to Verden by the
Cintrian police and two Islanders were shot by the Cintrian police.51 There are reasonable
grounds to believe that the 14 Islanders died as a result of actions taken by the Cintrian police
38
ICCPR, Arts. 9(3), 13-14; International Convention on the Protection of the Rights of Migrant Workers and Members
of their Families, 1990, Art. 16(6).
39
40
ICCPR, Arts.9(3), 13, 14; International Convention on the Protection of the Rights of Migrant Workers and Members
of their Families, 1990, Art.16(6).
41
ICC, Prosecutor v. Gbagbo, ICC-02/11-01/11-656-Red, Decision on the Confirmation of Charges against Laurent
Gbagbo, 12 June 2014, para. 216.
42
ICC, Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-717, Decision on the confirmation of charges, 30
September 2008, para. 396; ICC, Prosecutor v. Laurent Gbagbo, ICC-02/11-01/11-656-Red, Decision on the
confirmation of charges against Laurent Gbagbo, 12 June 2014, para. 216; ICC, Prosecutor v. Bemba, ICC-01/05-01/08,
Decision pursuant to article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre
Bemba Gombo, 15 June 2009, para. 81.
43
44
45
46
ICC, Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-717, Decision on the Confirmation of charges, 30
September 2008, para. 396.
47
ICTR, Akayesu, Case No. ICTR-96-4-T, 2 September 1998, para. 580.
48
49
50
ICC, Prosecutor v. Bemba, ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the
Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 132.
51
6
during the deportation. Furthermore, Human Rights Eye reported that 14 Islanders were killed
during their transfer from the detention centre in Cintria to Verden.52 Two Islanders were shot
while resisting expulsion.53 This is evidence that the murders were a result of and in connection
to the deportation of the Islanders. As the murders occurred during the deportation, the crime is
part of the same systematic attack directed against the Islanders.
II. The case against Ms. Calanta is admissible before the Court under Art. 17(1)(a) and (d)
II.A. Cintria is not undertaking investigations or prosecutions against Ms. Calanta
14. Pursuant to Art. 17(1)(a), the Court shall determine a case inadmissible where “the case is being
investigated or prosecuted by a State which has jurisdiction over it.”54 The phrase, “the case is
being investigated” is to be interpreted as “the taking of steps directed at ascertaining whether
this individual (emphasis added) is responsible for the conduct.”55
15. The Cintrian authorities have prosecuted three police officers for the murder of three Islanders.56
Those prosecutions do not form part of the investigations commenced on 21 November 2019 in
relation to the deportation of more than 3,000 Islanders and the murder of 14 Islanders during
their deportation.57 Furthermore, Ms. Calanta considered the matter closed and announced that
no investigations would be conducted into the deaths that occurred during the deportation.58
There is no evidence to indicate that any investigations or prosecutions were conducted against
Ms. Calanta. Therefore, the case is admissible before the Court.
II.B. Given the manner and impact of the crimes committed, the case is of sufficient gravity to justify
further action by the Court
16. To determine whether the threshold of gravity is satisfied, the objective quantitative and
subjective qualitative tests must be applied.59 With regard to the quantitative dimension, the
scale, nature, manner and impact of the alleged crimes are indicators to assess the gravity
52
Ibid.
53
Ibid.
54
Rome Statute, Art. 17(1)(a).
55
ICC, Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-
274, Decision on the Application by the Government of Kenya, Challenging the Admissibility of the Case Pursuant to
Article 19(2)(b) of the Statute, 30 August 2011, paras. 1 and 40.
56
57
58
59
ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-2, Decision on the Prosecutor’s Application for a warrant of arrest, 24
February 2006, paras. 46 and 50; ICC, Prosecutor v. Bahar Idriss Abu Garda, ICC-02/05-02/09, Decision on the
Confirmation of Charges, 8 February 2010, para. 31; OTP, Situation on Registered Vessels of Comoros, Greece and
Cambodia, Article 53(1) Report, 6 November 2014, para.136.
7
threshold.60 A low number of victims is not determinative of the gravity of the crime.61 In light
of the circumstances, the manner and the impact need to be assessed. Both indicators emphasise
the vulnerability of the victims, which is crucial in this case, as the deportation affected more
than 3,000 victims. ‘Manner’ refers to the “systematicity, cruelty, discrimination, abuse of power
and vulnerability of victims”62 and ‘impact’ refers to the “suffering, increased vulnerability and
social, economic and environmental damage.”63
17. The Islanders were taken to detention centres in Cintria and were held under terrible conditions
with “no access to means of communication or medical treatment.”64 Furthermore, various forms
of violence were used during the deportation. Coercion, threats of detention and deportation were
employed by the Cintrian immigration officers in order to force Islanders to sign voluntary
departure forms.65 It was also reported by Human Rights Eye that the Cintrian police resorted to
violence during the deportation of Islanders to Verden, which led to the death of 14 Islanders.66
The manner in which the crimes were committed contributed to the gravity of the deportation
and murder.
18. The “harm caused to victims and their families, the nature of the unlawful behaviour and the
means employed to execute the crime”67 must be taken into consideration to assess the impact of
the crimes. Given the degrading conditions under which Islanders were detained and deported,68
Islanders had no alternative but to either be forcibly deported to Verden or to return to Spellige.
Those deported to Verden remained in precarious conditions and those who returned to Spellige
either died as a result of the king tides or were imprisoned for denouncing the Spellige
Government.69
60
ICC, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in
the Republic of Kenya, 31 March 2010, para. 62; ICC, Prosecutor v. Bahar Idriss Abu Garda, ICC-02/05-02/09, Decision
on the Confirmation of Charges, 8 February 2010, para. 31; OTP, Situation on Registered Vessels of Comoros, Greece
and Cambodia, Article 53(1) Report, 6 November 2014, paras. 138-141.
61
OTP, Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report, 6 November 2014,
para. 145; ICC, Prosecutor v. Bahar Idriss Abu Garda, ICC-02/05-02/09, Decision on the Confirmation of Charges, 8
February 2010, paras. 33-34; ICC, Prosecutor v. Abdallah Banda Abakaer Nourrain and Saleh Mohammed Jerbo Jamus,
ICC-02/05-03/09-121-Corr-Red, Corrigendum of the Decision on the Confirmation of Charges, 7 March 2011, paras. 27-
28.
62
ICC, Prosecutor v. Bahar Idriss Abu Garda, ICC-02/05-02/09, Decision on the Confirmation of Charges, 8 February
2010, para. 32.
63
OTP, Policy Paper on Preliminary Examination, November 2013, paras. 59-66.
64
65
Ibid.
66
67
Rules of Procedure and Evidence, Rule 145(1)(c); ICC, Prosecutor v. Abu Garda, ICC-02/05-02/09, Decision on the
Confirmation of Charges, 8 February 2010, para. 32.
68
69
8
19. The role of the OTP is to charge those bearing the greatest responsibility for the crimes falling
within the jurisdiction of the Court.70 Prior to being elected as President of Cintria and throughout
her presidency, Ms. Calanta repeatedly blamed the Islanders for the decline of Cintria’s economy
in her anti-immigration hate speech.71 Her determination to stop immigration to Cintria is further
reflected when she entrusted the Minister of Immigration to achieve her goals through the
Immigration Act72 and in her speech in 2020, congratulating the successful programme.73
Consequently, Ms. Calanta contributed to the gravity of the crime.
III. There are reasonable grounds to believe that Ms. Calanta is individually criminally
responsible as an indirect co-perpetrator for the crime against humanity of deportation under
Art. 25(3)(a)
20. A person who acts jointly with another individual to use a third party as an instrument to commit
a crime is criminally responsible as an indirect co-perpetrator under Art. 25(3)(a).74 The criteria
required to establish indirect co-perpetration are: (i) the suspect must be part of a common plan
or an agreement with one or more persons;75 (ii) the suspect and the other co-perpetrators must
carry out essential contributions in a coordinated manner which result in the fulfilment of the
material elements of the crime;76 (iii) the suspect must have control over the organisation;77 (iv)
the organisation must consist of an organised and hierarchical apparatus of power;78 (v) the
execution of the crimes must be secured by almost automatic compliance with the orders issued
by the accused;79 (vi) the suspect must satisfy the subjective elements of the crimes;80 (vii) the
suspect and the other co-perpetrators must be mutually aware and accept that implementing the
common plan will result in the fulfilment of the material elements of the crimes;81 and (viii) the
suspect must be aware of the factual circumstances enabling him to exercise joint control over
the commission of the crime through another person.82
70
OTP, Paper on Some Policy Issues Before the Office of the Prosecutor, September 2003, p. 7; ICC, Prosecutor v.
Lubanga, ICC-01/04-01/06, Decision concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the
Incorporation of Documents into the Record of the case of Mr Thomas Lubanga Dyilo, 24 February 2006, para. 63.
71
72
73
74
ICC, Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07, Decision on the confirmation of charges, 30 September
2008, para. 499.
75
Ibid., para. 522.
76
ICC, Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the confirmation of charges, 29 January 2007, para. 524.
77
2008, para. 500.
78
Ibid., para. 512.
79
Ibid., paras. 515-518.
80
Ibid., para. 527.
81
Ibid., para. 533.
82
Ibid., para. 534.
9
III.A. Ms. Calanta and Mr. Marshal agreed on a common plan
21. The plan need not be explicit83 and may be inferred from later concerted action.84 The
Immigration Act aimed to specifically target Islanders by putting “an end to their massive
arrival.”85 This purpose reflects the unmistakable attitude of hatred towards Islanders displayed
in Ms. Calanta’s anti-immigration speech.86 Several facts demonstrate concerted action upon
which the existence of a common plan can be inferred, namely: (i) Ms. Calanta and Mr. Marshal’s
working relationship as government officials;87 (ii) Ms. Calanta’s plan to “take concrete and
extensive measures to tackle illegal immigration”;88 (iii) Ms. Calanta’s trust in Mr. Marshal as
Minister for Immigration to “achieve her goals” stated in point (ii);89 (iv) the implementation of
the deportation process;90 and (v) the subsequent deportation of Islanders from Cintria to
Verden.91
III.B. Ms. Calanta made an essential contribution
22. An ‘essential contribution’ means that as co-perpetrator, the accused could frustrate the
commission of the crime by not undertaking their part of the common plan.92 A common
characteristic of a constitution is the designation of power to the president to approve and veto
legislation93 or suggest legislation be reconsidered.94 It is reasonable to assume that the
Constitution of Cintria assigned Ms. Calanta such power.95 If it were not for Ms. Calanta’s
approval of the Immigration Act and its policies, the deportation of over 3,000 Islanders and the
deaths that resulted from the removal of the 14 Islanders would never have occurred. It was
therefore by virtue of her position as President that Ms. Calanta made an essential contribution
to the common plan.
23. Leading up to and following the adoption of the Immigration Act, Ms. Calanta used her position
to spread hostility towards Islanders through her public announcements96 and to influence the
Cintrian population to systematically discriminate against Islanders living in Cintria.97 Ms.
83
ICC, Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the confirmation of charges, 29 January 2007, para. 348.
84
Ibid., para. 345.
85
86
Case facts, paras. 8-10, 20.
87
88
89
Ibid.
90
91
Ibid.
92
ICC, Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the confirmation of charges, 29 January 2007, paras. 347-
8.
93
Constitution of the United States, Art. II.
94
Constitution of France, Title II Art. 10.
95
96
97
10
Calanta’s conduct was an essential contribution to the common plan as it allowed the deportation
policy to be implemented without backlash from the population.
III.C. Ms. Calanta had control over the Cintrian Government and the Government was hierarchically
organised
24. Ms. Calanta had control over the Cintrian Government by virtue of her position as President of
Cintria. A clear hierarchy existed within the Cintrian Government, with Ms. Calanta as President
and Mr. Marshal as Minister of Immigration holding high political positions within the
Government. The immigration and police officers responsible for carrying out the policies under
the Immigration Act were subordinates within the Governmental hierarchy.98
III.D. Compliance with Ms. Calanta and Mr. Marshal’s orders were ensured with ‘no exceptions’
25. The fourth requirement is satisfied where an organisation is used as “a mechanism that enables
its highest authorities to ensure automatic compliance with their orders”99 by using subordinates
to produce a criminal result.100 Therefore, “any one subordinate who does not comply may simply
be replaced by another who will.”101
26. These characteristics are present within the Cintrian Government. Ms. Calanta was able to utilise
the Ministry of Immigration,102 through her close working relationship with Mr. Marshal103 and
her position of influence as the President,104 to pass on her orders to the immigration and police
officers.105 The orders ensured automatic compliance with the common plan as they emphasised
that the policies under the Immigration Act were “aimed only at Islanders and that no exceptions
should be granted.”106
III.E. Ms. Calanta had the intent and knowledge to commit the deportation
27. Unless otherwise stated, the general elements of ‘intent’ and ‘knowledge’ in Art. 30 apply to a
crime within the jurisdiction of the Court. The general mental elements will be satisfied where:
(i) the accused means to engage in the relevant conduct with the intent to cause the relevant
consequence and/or is aware that it will occur in the ordinary course of events;107 and (ii) the
98
99
2008, para. 517.
100
Ibid., para. 515.
101
Ibid., para. 516.
102
103
104
105
106
Ibid.
107
Rome Statute, Art. 30(2)(a) and (b).
11
accused is aware “that a circumstance exists or a consequence will occur in the ordinary course
of events.”108
28. It is reasonable to assume that Ms. Calanta played a key role in the legislative process in light of
the power of legislative approval and veto commonly assigned to a president under the
constitution.109 It follows that Ms. Calanta must have been aware of the removal process targeted
at Islanders under the Immigration Act following her approval of the legislation.110 Accordingly,
Ms. Calanta knew that the deportation of Islanders would occur in the ordinary course of events
following the adoption of the Immigration Act. Ms. Calanta’s intention to cause the removal of
Islanders from Cintria can be deduced from her public announcements to spread her anti-
immigration views and hatred towards Islanders.111
III.F. Ms. Calanta and Mr. Marshal were mutually aware and accepted that the implementation of the
Immigration Act would result in the deportation of Islanders
29. The accused and co-perpetrator must be “aware that the realisation of the objective elements will
be a consequence of their acts in the ordinary course of events.”112 In light of their respective
positions within the Cintrian Government, Ms. Calanta and Mr. Marshal were aware of the
process to remove Islanders to Verden.113 Local NGOs reported that Cintrian authorities forced
some Islanders to sign voluntary departure forms under coercion and threats and that asylum
should have been granted to some Islanders based on political persecution.114 In light of the
reports from NGOs,115 Ms. Calanta and Mr. Marshal would have been aware that continuation
of the process would result in the material elements of the crime of deportation.
III.G. Ms. Calanta and Mr. Marshal were aware of the factual circumstances enabling them to exercise
joint control over the commission of the crime through another person
30. The final element requires that the accused and co-perpetrator “must be aware of the character
of their organisation, their authority within the organisation, and the factual circumstances
enabling near automatic compliance with their orders.”116
31. As the highest-level officials within the Cintrian Government, Ms. Calanta and Mr. Marshal were
aware of the specific role they played and the hierarchically organised character of the
108
Rome Statute, Art. 30(3).
109
Constitution of the United States, Art. II; Constitution of France, Title II, Art. 10.
110
111
112
2008, para. 533.
113
114
Ibid.
115
Ibid.
116
2008, para. 534.
12
Government. They were also aware of the circumstances allowing automatic compliance with
their orders due to the position of influence and control they held over the immigration and police
officers.
IV. There are reasonable grounds to believe that Ms. Calanta is individually criminally
responsible for ordering the crime against humanity of murder under Art. 25(3)(b)
32. A person is individually criminally responsible under Art. 25(3)(b) where she orders the
commission of a crime that falls within the jurisdiction of the Court. Ordering requires that: (i)
the accused is in a position of authority; (ii) the accused instructs another person in any form to
either: a) commit a crime which in fact occurs or is attempted, or b) perform an act or omission
in the execution of which the crime is carried out; (iii) the order had direct effect of the
commission of the crime; and (iv) the accused is at least aware that the crime will be committed
in the ordinary course of events as a consequence of the execution or implementation of the
order.117
IV.A. Ms. Calanta held a position of authority and ordered the deportation of Islanders through Mr.
Marshal
33. Ordering requires a superior-subordinate relationship, through which the person uses his/her
position of authority to compel the subordinate to commit a crime.118 The transmission of an
order can be established by circumstantial evidence.119 In Mudacumura, the Court held that
ordering includes a person giving an order through an intermediary and that the person need not
give the order directly to the physical perpetrator.120
34. A clear superior-subordinate relationship existed between Ms. Calanta and the Cintrian police in
light of Ms. Calanta’s position of influence and control as President.121 The policies under the
Immigration Act as proposed by Mr. Marshal reflected Ms. Calanta’s attitude towards Islanders
and demonstrates Ms. Calanta’s influence over Mr. Marshal.122 Therefore, it is reasonable to
assume that Ms. Calanta used Mr. Marshal as an intermediary to order immigration and police
officers to target Islanders in line with the Immigration Act.123
117
ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1Red, Decision on the Prosecutor’s application under Art. 58, 13
July 2012, paras. 63–65; ICC, Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, Decision on the confirmation of charges,
9 June 2014, para. 145.
118
ICTR, Prosecutor v. Jean Paul Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, para. 483; ICTY, Prosecutor v.
Krstić, Judgment, IT-98-33-T, 2 August 2001, para. 601; ICC, Prosecutor v. Laurent Gbagbo, ICC-02/11-01/11-656-
Red, Decision on the confirmation of charges, 12 June 2014, paras. 242-243; ICTR, Prosecutor v. Semanza, Judgment,
ICTR-97-20, 20 May 2005, para. 361.
119
ICTY, Prosecutor v. Blaškić, Judgment, IT-95-14-T, 3 March 2000, para. 281.
120
ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1Red, Decision on the Prosecutor’s application under Art. 58, 13
July 2012, para. 63.
121
Case facts, paras. 1.
122
123
13
IV.B. Ms. Calanta’s order had a direct effect on the commission of the crime
35. ‘Direct effect’ has been interpreted to mean that the order must at least substantially contribute
to the commission of the crime.124 Ms. Calanta’s order stated that the Immigration Act applied
specifically to Islanders “without exception.”125 This meant that the Cintrian police and
immigration officers did not have discretion to deal with Islanders who resisted expulsion or
vulnerable Islanders in custody.
36. The lack of discretion afforded to Cintrian police following Ms. Calanta’s order resulted in the
Cintrian police resorting to shooting the two Islanders who resisted expulsion.126 As a result, the
order substantially contributed to the murder of the two Islanders. Moreover, the Cintrian
authorities could have prevented the death of the 12 Islanders if they had the discretion to keep
Islanders who were unfit for transport at the detention centre.
IV.C. Ms. Calanta was aware that Islanders would die during the deportation as a consequence of the
terrible conditions in the Cintrian detention centres and her order requiring “no exceptions”
37. In Blaškić, the ICTY set out the mental element of ordering as “the awareness of the substantial
likelihood that a crime will be committed in the execution of that order. [...] Ordering with such
awareness has to be regarded as accepting that crime.”127 Ms. Calanta as President of Cintria was
aware of the process undertaken by Cintria to deport the Islanders to Verden. Ms. Calanta knew
that while in Cintrian detention centres, the Islanders were “kept under terrible conditions with
no access to means of communication or medical treatment.”128 Accordingly, Ms. Calanta knew
of the substantial likelihood that Islanders of poor health subjected to the terrible conditions in
the Cintrian detention centres would die during their transport to Verden. As it can be inferred
that Ms. Calanta ordered no exceptions to be granted in the deportation of Islanders, Ms. Calanta
was aware of the substantial likelihood that Islanders could be killed for resisting expulsion.
V. Prayer for relief
On the basis of the evidence provided, the Prosecution requests the Court to find that: (i) the case
falls within the jurisdiction of the Court; (ii) the case is admissible; and (iii) there are reasonable
grounds to believe that crimes against humanity of deportation and murder were committed and that
Ms. Calanta is individually criminally responsible.
Respectfully submitted,
Counsel for the Prosecution.
124
ICTY, Prosecutor v. Milutinović et. al, IT-05-87-T, Judgment, 26 February 2009, para. 88.
125
126
127
ICTY, Blaškić, IT-95-14-A, Judgment, 29 July 2004 para. 42.
128
14

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