NUREMBERG MOOT COURT 2023

TEAM NO: 2023-75

DEFENCE
 TABLE OF CONTENTS

I. THE CASE AGAINST LIEUTENANT ADELAIDE DOES NOT FALL WITHIN THE
JURISDICTION OF THE COURT PURSUANT TO ART. 19 OF THE ROME STATUTE.....2
I.A. The contextual elements have not been satisfied................................................................3
I.A.1 The Situation in the Republic of Merty does not amount to an armed conflict.............. 3
I.A.2 The conduct did not take place in the context of an armed ‘conflict’............................. 4
I.B. The specific elements have not been satisfied.........................................................................5
I.B.1 The destruction of the buildings/structures did not amount to an attack.........................5
I.B.2. Lieutenant Adelaide did not direct the destruction of the structures..............................6
I.B.3 The structures amounted to military objectives...............................................................6
I.B.4 The structures were not intended to be the object of the attack...................................... 6
II. THE CASE IS ADMISSIBLE UNDER ART.17(1)(d) OF THE ROME STATUTE...............7
II.A. Lieutenant Adelaide is a low-ranking perpetrator................................................................. 7
II.B. Lieutenant Adelaide does not bear the greatest responsibility for the alleged crimes
committed....................................................................................................................................... 8
II.C. The exclusive destruction of the buildings is in itself insufficient.........................................9
II.D. The scale and manner of the crimes do not render them especially grave...........................10
II.E. There was no discriminative motive.................................................................................... 10
III. LIEUTENANT ADELAIDE IS NOT CRIMINALLY RESPONSIBLE FOR THE WAR
CRIMES COMMITTED BY HER SUBORDINATES UNDER ARTICLE 25(3)(b) AND/OR
ARTICLE 25(3)(d) OF THE ROME STATUTE........................................................................... 11
III.A. Lieutenant Adelaide is not criminally responsible under Art. 25(3)(b)..............................11
III.A.1 Lieutenant Adelaide is not an indirect perpetrator......................................................11
III.A.1.a. Lieutenant Adelaide had no effective control over her troops..........................12
III.A.1.b. Lieutenant Adelaide is not the highest commanding officer............................ 12
III.A.1.c. There was a lack of automatic compliance from the soldiers...........................12
III.A.2. Lieutenant Adelaide did not induce the commission of crime.................................. 12
III.B. Lieutenant Adelaide is not criminally responsible under Art. 25(3)(d)(ii).........................13
III.B.1. The crime does not fall within the jurisdiction of the Court......................................13
III.B.2. The accused did not make a significant contribution to the commission of crime....13
III.B.3. The contribution was not made in the knowledge of the intention of the group to
commit the crime.................................................................................................................... 14
IV. PRAYER FOR RELIEF.............................................................................................................14

1
 WRITTEN SUBMISSIONS
I. THE CASE AGAINST LIEUTENANT ADELAIDE DOES NOT FALL WITHIN THE
JURISDICTION OF THE COURT PURSUANT TO ART. 19 OF THE ROME STATUTE
1. Art. 19(1) of the Rome Statute states that the ICC shall satisfy itself that it has jurisdiction in any
case brought before it.1 For the Court to have jurisdiction, the jurisdictional parameters of ratione
materiae, ratione temporis, and, in the alternative, ratione personae or ratione loci must be
fulfilled.2
2. The Defence submits that the PTC does not have jurisdiction ratione materiae or subject-matter
jurisdiction under Art. 5(c) and Art. 8(2)(e)(iv) of the Rome Statute as there are no reasonable
grounds to believe that contextual and specific elements have been satisfied in the present case.3
3. The Defence contends that (A) the contextual elements have not been fulfilled since (1) the
Situation in the Republic of Merty (RoM) does not amount to an armed conflict; and (2) the conduct
did not take place in the context of an ‘armed conflict’. Additionally, (B) the specific elements have
not been fulfilled as (1) the destruction of the buildings/structures did not amount to an attack; (2)
Lieutenant Adelaide did not direct the destruction of the structures; (3) the structures amounted to
military objectives; and (4) the structures were not intended to be the object of the attack.

I.A. The contextual elements have not been satisfied

I.A.1 The Situation in the Republic of Merty does not amount to an armed conflict
4. The two requirements of a non-international armed conflict are (1) sufficient organisation of a
non-state armed group; and (2) an intensity of violence of a certain degree.4
5. ‘Organisation’ is characterised by, inter alia, a headquarters and command structure, the ability to
speak with “one voice” and distinguishable uniforms.5 Respectively, the TPDF possesses no
headquarters, established formal command structure with distinct responsibility, distinguishable
leader to represent the “voice” of the group, nor are they marked by distinguishable uniforms.6
6. Additionally, Katanga emphasised that ‘organisation’ includes the ability to implement
provisions of humanitarian law, correlating with the indicative factor of internal disciplinary

1
ICC, Prosecutor v. Abu Garda, ICC-02/05-02/09-243-Red, Decision on the Confirmation of Charges, 8 February
2010, para. 25.
2
ICC, Situation in the Republic of Kenya, ICC-01/09-19-Corr, Corrigendum of the Decision Pursuant to Article 15 of
the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 01 April 2010,
para. 71.
3
ICC, Situation in Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the
Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, 12 April 2019, para. 45.
4
ICRC, Commentary on the First Geneva Convention (2016), Comment on Article 3, paras. 421-437.
5
ICTY, Prosecutor v. Haradinaj, IT-04-84-T, Trial Judgement, 3 April 2008, para. 60.
6
Case Facts, para. 14.

2
measures.7 The orders within the TPDF were only generally followed rather than being made
mandatory.8 This indicates a lack of a requisite internal disciplinary system to counter potential
instances of occasional insubordination. Furthermore, unlike in Haradinaj, the TPDF has not made
any formal declarations on recognising conventions of war.9
7. In terms of intensity, the hostilities do not amount to an armed conflict but are instead an internal
disturbance due to its geographically isolated nature. Art. 8(2)(f) provides that internal disturbances
encompass, inter alia, isolated acts of violence.10 Bemba held that the standard to prove Art 8(2)(f)
is to “go beyond isolated or sporadic acts of violence”,11 and in Ntaganda, the spread of clashes was
indicative of intensity.12 The hostilities in the Republic were only limited to clashes at the
roadblocks which, geographically, only blocked streets where the TPDF members lived.13 Contrast
can be drawn to Haradinaj where the armed checkpoints blocked main roads, essentially
cutting-off supply routes during the conflicts.14
8. Lastly, non-international armed conflicts are generally characterised by the political motives
which drive the groups. This may include substituting themselves to the government or creating an
independent state.15 Although the protests started off as a means of disapproval over the lack of
democratic rights and perceived ethnic discrimination,16 the formation of TPDF, on the other hand,
was meant as a means to bear arms,17 which subsequently transitioned into a group that illegally
harboured and protected its members who were involved in the deaths of government soldiers.18
Hence, the motives identifiable from the roadblocks were criminal motives rather than
military/political motives per se. This is evident when the TPDF members did not take down the
roadblocks to assist the protestors in Tykus, nor put up any resistance during the destruction of the
buildings, despite their close proximity as they intend to continue harbouring their members
illegally.19

7
ICC, Prosecutor v. Germain Katanga, ICC-01/04-01/07-3436-tENG, Judgment pursuant to article 74 of the Statute, 07
March 2014, para. 1175.
8
Case Facts, para. 14.
9
ICTY, Prosecutor v. Haradinaj, IT-04-84-T, Trial Judgement, 3 April 2008, para. 69.
10
Rome Statute, Art. 8(2)(f).
11
ICC, Prosecutor v. Bemba Gombo, ICC-01/05-01/08, Judgment pursuant to Article 74 of the Statute, 21 March 2016,
para. 140.
12
ICC, Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, Judgement, 8 July 2019, para. 716.
13
Case Facts, para. 13.
14
ICTY, Prosecutor v. Haradinaj, IT-04-84-T, Trial Judgement, 3 April 2008, para. 75.
15
ICRC, Commentary on the Additional Protocols (1987), General introduction to the Commentary on Protocol II, para.
4341.
16
Case Facts, para. 9.
17
Case Facts, para. 11.
18
Case Facts, paras. 12, 13.
19
Case Facts, para. 17,18,19.

3
I.A.2 The conduct did not take place in the context of an armed ‘conflict’
9. Assuming arguendo the Situation in the RoM does amount to an ‘armed conflict’, there is
insufficient nexus between the conduct and the armed conflict. In Kunarac, the Court considered
whether the armed conflict substantially contributed to the perpetrator’s ability, purpose and
decision to commit the crime.20
10. Notably, Lieutenant Adelaide and her platoon were members of the Mertian Army before the
escalation of the hostilities.21 Hence, even without the armed conflict, they would still have been in
positions with access to the military resources used for destruction. Further, the conflict between the
Merones and the Typhons was generational, evidenced by Lieutenant Adelaide’s use of the words
‘heretic’ and ‘money’ (referring to the financial disparity).22 Even without the armed conflict, these
sentiments were present and rooted in the perpetrators. Hence, the existence of armed conflict did
not contribute to Lieutenant Adelaide's alleged decision to commit the crime.
11. Next, whether the conduct served the ultimate goal of the military campaign was also a
consideration in Ongwen.23 Here, the military campaign was merely law enforcement which aimed
to capture TPDF members who were involved in the deaths of the government soldiers.24 The
destruction of buildings does not contribute to this.

I.B. The specific elements have not been satisfied

I.B.1 The destruction of the buildings/structures did not amount to an attack
12. The PTC has held that the act of pillaging protected objects does not constitute an “attack”
within the meaning of Article 8(2)(e)(iv) of the Statute.25 Hence, Lieutenant Adelaide’s act of
looting valuable properties following the destruction of buildings does not amount to an attack.
13. Additionally, in Ntaganda, the PTC was of the position that an “attack” must have occurred
before the area fell into the hands of the attacking party.26 In both Mestia and Tykus, the Mertian
Army or the government, in general, had not lost control over the area where the buildings stood
which was evident by the fact that the Mertian army was able to ‘occupy’ the site in Tykus for some
time.27 There was also no resistance from the TPDF in both instances in Mestia and Tykus when the
buildings were being destroyed, indicating that they were not guarded at the very least.28 This points
20
ICTY, Prosecutor v. Kunarac, IT-96-23/1-A, Appeal Judgement, 12 June 2002, para. 58.
21
Case Facts, para. 10.
22
Case Facts, para. 15,17.
23
ICC, Prosecutor v. Dominic Ongwen, ICC-02/04-01/15, Trial Judgment, 4 February 2021, para. 2629
24
Case Facts, para. 12.
25
ICC, Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, Judgement, 8 July 2019, para. 761.
26
Ibid., para.1142.
27
Case Facts, para. 18.
28
Case Facts, para. 15-19.

4
to the notion that the area in which the building stood had not fallen into the hands and/or control of
the TPDF. In short, with no link to hostilities, the destruction cannot constitute an ‘attack’.

I.B.2. Lieutenant Adelaide did not direct the destruction of the structures.
14. To ‘direct’ in the chapeau of Article 8, is understood to mean selecting the intended target and
deciding on the attack.29 As stated in Ntaganda referring to Art.57(2) and Art 51, this would
include, i.e., selecting the target and ordering the firing.30 In both Mestia and Tykus, Lieutenant
Adelaide did not make any express orders to destroy the buildings and merely expressed discontent
over the state of the RoM’s inequality.31 In both occasions, the ‘direction’ was given explicitly by a
member of the platoon.32 Further substantiating, in Tykus Lieutenant Adelaide’s immediate orders
were to disperse the crowd, in an attempt to prevent further hostilities.33 The subsequent actions of
her troops had no correlation to her orders.

I.B.3 The structures amounted to military objectives

15. Alternatively, the destruction of the structures was not unlawful as they constituted a legitimate
‘military objectives’.34 Military objectives include objects which make an effective contribution to
an enemy’s war-fighting and war-sustaining efforts.35 War sustenance includes economic
sustenance.36 Considering the Typhons derive most of their income from tourism,37 the destruction
of these buildings offers a definite military advantage to the government forces as a means to
essentially cut off the TPDF members’ financial source.

I.B.4 The structures were not intended to be the object of the attack.
16. This specific mens rea requirement is sometimes seen as a repetition of Art 30(2)(a)38 and
therefore requires that the perpetrator acts with dolus directus of the first degree.39 This is only

29
ICC Prosecutor v Bosco Ntaganda, ICC-01/04-02/06, Judgment, 8 July 2019, paras. 744, 914.
30
Ibid., paras. 914, 744, Additional Protocol I, Article 51;Article 57(2).
31
Case Facts, paras. 15,17.
32
Case Facts, paras. 16,19.
33
Case Facts, para. 19.
34
Ibid., para.1162
35
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP
5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and
Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.2.
36
Gaggioli, Gloria and Dvaladze, George, Military Objectives (2018). in : Drazan Djukic and Niccolo Pons (eds), The
Companion to International Humanitarian Law, Brill/Nijhoff, 2018, 780 p., page 3.
37
Case Facts, para 7.
38
ICC, Prosecutor v. Katanga, Decision on the confirmation of charges, ICC-01/04-01/07-717, 30 September 2008,
para. 8.
39
ICTY, Prosecutor v. Strugar, IT-01-42-T, Trial Judgement, 31 January 2005, para. 311.

5
fulfilled through deliberacy of conduct. In Strugar, the chamber considered the “intent to
deliberately destroy”,40 and in Al Mahdi and Al Hassan, the deliberacy was fulfilled by the manner
in which the assailants “went from one building to another in a short period of time”, and the
premeditated nature of the destruction.41
17. Here, however unfortunate, the destruction was sporadic in nature. The troops did not
deliberately set off to the locations,42 and particularly, the incident in Tykus only escalated due to an
exaggerated response to an accidental warning shot.43 It was agreed that the incident would not have
occurred had the sporadic riot not happened.44 There may only be dolus eventualis (mere likelihood
or possibility) at best which the Court has regarded to be insufficient under the ambits of the
provision.45

II. THE CASE IS ADMISSIBLE UNDER ART.17(1)(d) OF THE ROME STATUTE

18. Art. 17(1)(d) functions as an additional safeguard to prevent the Court from investigating,
prosecuting and trying peripheral cases which are not of international concern.46 The mere fact that
the case falls within the Court’s jurisdiction is not sufficient to establish gravity.47 Instead, the
relevant conduct must possess features which render it ‘especially grave’.48 According to recent
case laws, gravity must be determined on 2 factors: (1) whether the accused bears the greatest
responsibility for the alleged crimes committed;49 and (2) the assessment of the gravity of the
crimes allegedly committed based on qualitative and quantitative factors. 50

40
ICTY, Prosecutor v. Strugar, IT-01-42-T, Trial Judgement, 31 January 2005, para. 329.
41
ICC, Prosecutor v. Ahmad AL Fahqi Al Mahdi, ICC-01/12-01/15-171, Judgment and Sentence, 27 September 2016,
para. 47,48.
42
Case Facts, para. 15,17.
43
Case Facts, para 19; Case Facts, Exhibit I, Exhibit II.
44
Case Facts, Exhibit I, Exhibit II.
45
ICC, Prosecutor v. Germain Katanga, ICC-01/04-01/07, Judgment pursuant to article 74 of the Statute, 7 March 2014
para 775.
46
ICC, Decision on the ‘Application for Judicial Review by the Government of the Comoros’, ICC-01/13, 16
September 2020, para. 22.
47
ICC, Prosecutor v. Abu Garda, ICC-02/05-02/09-243-Red, Decision on the confirmation of charges, 8 February 2010,
para. 30.
48
Ibid.
49
ICC, Situation in the Republic of Kenya, ICC-01/09-01/11-912, Decision Pursuant to Art. 15 of the Rome Statute on
the Authorisation of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 188.
50
Ibid.

6
II.A. Lieutenant Adelaide is a low-ranking perpetrator
19. The OTP has traditionally taken the approach to encourage national prosecutions for
lower-ranking perpetrators.51 This was followed suit in the situation in the Republic of Cote d’Ivoire
where the Prosecutor expressly asserted that the individuals likely to be the focus of future
investigations are high-ranking political and military figures52 as they are the ones who can most
effectively prevent or stop the commission of those crimes.53
20. To illustrate, in Mitar Rašević and Savo Todović, both the accused, despite being in a position of
authority (commander and deputy commander respectively) were found to not be sufficiently high
up within the overall chain of responsible actors.54 Likewise, the rank of Lieutenant is the lowest
rank of commissioned officer in most armies of the world.55 Instead, the target of prosecution by the
OTP should be the commanding officer at the very least.56 The prosecution of Lieutenant Adelaide
should be referred back to the national courts57 or alternate resolution mechanisms58 due to her low
position within the overall chain of responsible actors.59

II.B. Lieutenant Adelaide does not bear the greatest responsibility for the alleged crimes
committed
21. Assuming arguendo that the accused’s military rank has been disregarded, Lieutenant Adelaide
still does not bear the greatest responsibility for the alleged crime as she had not played a significant
‘role in the violence’.60 For a speech to amount to the commission of the crime, it must be
demonstrated that the accused’s speeches were a factor substantially contributing to the conduct of
the perpetrators.61

51
OTP, Paper on some policy issues before the Office of the Prosecutor, September 2003,
https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/1FA7C4C6-DE5F-42B7-8B25-60AA962ED8B6/143594/03090
5_Policy_Paper.pdf, p. 3.
52
ICC, Situation in the Republic of Cote D’Ivoire, ICC-02/11-01/11-656-Red, Decision Pursuant to Article 15 of the
Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, 3 October
2011, para. 205.
53
ICC, Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Decision on the Prosecutor's Application for a
warrant of arrest. Article 58, 10 February 2006, para. 53.
54
ICTY, Prosecutor v. Savo Todovi, Mitar Rasevic, IT-97-25/1-PT, Decision on Referral of Case under Rule 11 Bis with
Confidential Annexes I and II, 8 July 2005, para. 23.
55
Michael Ray. (n.d.). lieutenant. Britannica. https://www.britannica.com/topic/lieutenant
56
Case Facts, para. 10.
57
ICTY, Prosecutor v. Mitar Rašević, Savo Todovi'c, IT-97-25/1-PT, Decision on Referral Case under the Rule 11 bis
with Confidential Annexes I and II, 8 July 2005, para. 23.
58
Gordon, Gregory. (2014). Complementarity and alternative forms of justice: A new test for ICC admissibility.
59
ICTY, Prosecutor v. Mitar Rašević, Savo Todovi'c, IT-97-25/1-PT, Decision on Referral Case under the Rule 11
bis with Confidential Annexes I and II, 8 July 2005, para. 23.
60
ICC, Prosecutor v. Lubanga, ICC-01/04-02/06-20-Anx2, Annex 2 to Decision on the Prosecutor’s Application for
Warrants of Arrest, Article 58, 11 February 2006, paras. 53-54.
61
ICTY, Prosecutor v. Vojislav Šešelj, MICT-16-99-A, Judgement, 11 April 2018, para. 131.

7
22. However, Lieutenant Adelaide’s speeches were equivocal, open-ended and figurative, leading to
differing interpretations,62 evident from her employment of the word ‘heretic culture’ which may
encompass abstract aspects such as the Typhon’s way of life, value system, traditions, art and
literature and customs.63 Mere usage of abusive or defamatory language is insufficient to
demonstrate persecution.64 At the very best, the speeches may only amount to mere vague or
indirect suggestions, which the Court has previously deemed to be insufficient to attribute
responsibility.65

II.C. The exclusive destruction of the buildings is in itself insufficient

23. There is a presumption that despite the severe impact that crimes against property may have on
victims, it is generally of lesser gravity than crimes against persons.66 For cases involving the
destruction of buildings, the Court took into consideration the death of religious leaders67 as well as
the great many victims to whom the attack was directed, rather than purely basing it on the
destruction of buildings.68
24. However, in the instant case, there have been no causalities arising from the destruction of the
buildings.69 Furthermore, the destroyed buildings have not been declared as a ‘world heritage’ under
the World Heritage Convention70 nor was it expressly declared by the Republic of Mestia as a
protected building. Additionally, for the temples that were destroyed, the general nor special
protection under the Additional Protocol I71 cannot be invoked as they were attacked for a military

62
ICTR, Ferdinand Nahimana and Jean-Bosco Barayagwiza v. Prosecutor, ICTR-99-52-A, Judgement, 28 November
2007, para. 682.
63
Case Facts, para. 16; UN Educational, Scientific and Cultural Organisation (UNESCO), UNESCO Universal
Declaration on Cultural Diversity, 2 November 2001. para. 6.
64
ICTY, Prosecutor v. Šešelj, MICT -16-99-A, Judgement, 11 April 2018, para. 156.
65
ICTR, Ferdinand Nahimana and Jean-Bosco Barayagwiza v. Prosecutor, ICTR-99-52-A, Judgement, 28 November
2007, para. 692.
66
ICC, Prosecutor v. Ntaganda, ICC-01/04-02/06-2359, Sentencing Judgment , 7 November 2019, para. 77.
para 14; ICC, Prosecutor v. Ahnad Al Faqi Al Mahdi, ICC-01/12-01/15-171, Judgment and Sentence, 27 September
2016, para.77.
67
ICC, Situation in the Republic of Côte d'Ivoire. ICC-02/11-01/11-656-Red, Corrigendum to "Decision Pursuant to
Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte
d'Ivoire",15 November 2011, para. 142.
68
ICC, Prosecutor v. Al Hassan, ICC-01/12-01/18,Decision on the Prosecutor’s Application for the Issuance of a
Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 22 May 2018, para. 38.
69
Case Facts, Exhibit I.
70
OTP, Policy on Cultural Heritage, (June, 2021), para. 47.
71
Additional Protocol I, Art. 52.

8
objective72 as argued prior73 and its sanctity does not extend to the whole nation but rather a limited
geographical scope (the southern region of the RoM at best).74

II.D. The scale and manner of the crimes do not render them especially grave
25. The employment of the word ‘in particular’ under Article 8(1) denotes that the Court has the
discretion to take into account factors it deems to be relevant to assess the gravity of the crime.75
This includes additional substantive considerations not enumerated under the Elements of Crimes
which has been noted to be non-binding.76 In Al-Hassan and Al-Mahdi, the organized, systematic
manner and careful planning77 of the destruction of buildings was taken into account.78
26. In the instant case, the sequence in which the buildings were to be attacked was not
predetermined indicating the absence of careful planning.79 Furthermore, the lack of a systematic
manner of destruction can be observed when the soldiers did not go from one building to the next
but rather destroyed the buildings within proximity of the main square indiscriminately.80
Additionally, the instant case does not fulfil the 10 days continuous attack threshold in Al-Mahdi,81
evident from the 2 rouge instances of destruction in a span of 13 days. This would fall squarely
under sporadic and/or isolated acts caused by the heat of the moment.82 Lastly, only 5 buildings
(none of which were protected UNESCO World Heritage sites) were destroyed, which is pale in
magnitude when contrasted with the 22 protected UNESCO World Heritage sites in Al-Hassan.83
Hence, the ‘especially’ grave threshold requirement under Art. 17(1)(d) has not been met.

II.E. There was no discriminative motive

27. The destruction of sites is discriminatory if it is based on a religious motive.84 However, there is
insufficient conclusive evidence to suggest that Lieutenant Adelaide had acted discriminatively as

72
ICTY, Prosecutor v. Radoslav Brdanin, IT-99-36-T, Judgement, para. 596.
73
As discussed in section I.B.3.
74
International Committee of the Red Cross. Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (Geneva: Martinus Nijhoff, 1987), p. 647.
75
ICC, Prosecutor v. Bemba Gombo, ICC-01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute, 21 March
2016, para.126.
76
Markus Wagner, The ICC and its jurisdiction-Myths, Misperceptions and Realities. (1st ed., 2003), p. 417.
77
ICC, Prosecutor v. Ahnad Al Faqi Al Mahdi, ICC-01/12-01/15-171, Judgment and Sentence, 27 September 2016,
para. 78.
78
Ibid., para. 33.
79
Ibid., para. 37.
80
Ibid., para. 47.
81
Ibid., para. 78.
82
Rome Statute, Art. 8(2)(f).
83
ICC, Prosecutor v. Al Hassan, ICC-01/12-01/18-1924, Decision on the Prosecutor’s Application for the Issuance of a
Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, 22 May 2018, para.147.
84
ICC, Prosecutor v. Al Hassan, ICC-01/12-01/15-195-Conf, Judgment and Sentence, 27 September 2016, para. 81.

9
she had, at all times, prioritised the safety of the ‘average Mertian citizens’,85 which consists of both
the Merones and Typhons as well as the other minor ethnic groups.86 Additionally, whenever
reference was made towards the ‘Typhons’ in her speech, it was targeted specifically towards the
TPDF members who consist solely of Typhons,87 and not the ethnicity in general.

III. LIEUTENANT ADELAIDE IS NOT CRIMINALLY RESPONSIBLE FOR THE WAR

CRIMES COMMITTED BY HER SUBORDINATES UNDER ARTICLE 25(3)(b) AND/OR
ARTICLE 25(3)(d) OF THE ROME STATUTE.
28. To establish that Lieutenant Adelaide is criminally liable under Art. 25(3)(b), the OTP will need
to prove the following: [a] control over the organisation; [b] organised and hierarchical apparatus of
power; [c] execution of the crimes secured by almost automatic compliance with the orders;88 [d]
incitation of her soldiers in a public space; [e] there was direct incitation to destroy the buildings;89
and [f] there was intention to induce the commission of crime.90

29. As for criminal liability under Art. 25(3)(d), the OTP would need to prove the following: [a] a
crime within the jurisdiction of the Court was committed; [b] the persons who committed the crime
belonged to a group acting with a common purpose; [c] the accused made a significant contribution
to the commission of the crime; [d] the contribution was intentional; and [e] the accused’s
contribution was made in the knowledge of the intention of the group to commit the crime.91
30. The Prosecution bears the onus to prove all constituent elements on reasonable grounds to
believe based on the totality of the evidence adduced. The Defence submits that Lieutenant
Adelaide is not criminally responsible under Art. 25(3)(b) and/or Art. 25(3)(d) of the Rome Statute. 

III.A. Lieutenant Adelaide is not criminally responsible under Art. 25(3)(b)

III.A.1 Lieutenant Adelaide is not an indirect perpetrator
31. In Gacumbitsi, “indirect perpetration” requires the indirect perpetrator to use the direct and
physical perpetrator as a mere ‘instrument’ to achieve his goal, and by doing so, the indirect

85
Case Facts, para. 17.
86
Case Facts, para. 6.
87
Clarification on Points of Fact, Clarification 3.
88
ICC, Prosecutor v. Katanga, ICC-01/04-01/07-4, Judgment pursuant to article 74 of the Statute, 7 March 2014, para.
500.
89
ICTR, Prosecutor v. Akayesu, ICTR-96-4-T, Judgement, 2 September 1998, para. 672.
90
Ibid., para. 557.
91
ICC, Prosecutor v. Mbarushimana, ICC-01/04-01/10-465-Red, Decision on the confirmation of charges, 16
December 2011, para. 269; ICC, Prosecutor v. Katanga, ICC-01/04-01/07-4, Judgment pursuant to article 74 of the
Statute, 7 March 2014, para. 1620

10
perpetrator is criminally responsible as he exercises control over the act and the will of the direct
and physical perpetrator.92 Such mode of participation requires [a] control over the organisation, [b]
organised and hierarchical apparatus of power, and [c] execution of the crimes secured by almost
automatic compliance with the orders.93

III.A.1.a. Lieutenant Adelaide had no effective control over her troops

32. The Defence concedes to the fact that the suspect is a Lieutenant and holds de jure authority.
However, it is submitted that she had lost effective control over her troops, during the chaotic riots
whereby she affirmed that “there was nothing that could be done” and “there was no controlling
anyone at the scene”.94 Additionally, the soldiers were shown to not be compliant with her orders as
the destruction of buildings had no correlation to her orders of dispersing the protestors.

III.A.1.b. Lieutenant Adelaide is not the highest commanding officer

33. A person’s blameworthiness increases in tandem with a rise in the hierarchy: the higher in rank
the mastermind is from the perpetrator, the greater the person’s responsibility will be.95 It is
pertinent to note that the accused herself was receiving instructions from her commanding officer,96
and thus, should not bear the greatest responsibility as argued prior.97

III.A.1.c. There was a lack of automatic compliance from the soldiers

34. The accused’s control over the soldiers allows her to secure automatic compliance by utilising
his subordinates as a “mere gear in a giant machine”. 98 The highest authority does not merely order
the commission of the crime but ultimately decides whether and how the crime would be
committed. Evidently, the accused had not masterminded the commission of crimes — she did not
decide the sequence as well as the manner of destruction. The anti-tank mines were planted by a
group of soldiers of their own will and not under any express command from the suspect.

92
ICTR, Gacumbitsi v. Prosecutor, ICTR-2001-64-A, Appeal Judgement, 7 July 2006, p. 111, para. 18.
93
ICC, Prosecutor v. Katanga, ICC-01/04-01/07-717 Judgment pursuant to article 74 of the Statute, 7 March 2014,
paras. 500. et seq.
94
Case Facts, Exhibit I.
95
Jerusalem District Court, The Attorney General v. Eichmann, Case No. 40/61, Judgement, 36 I.L.R. 5-14, 18-276, 12
December 1961, para. 197.
96
Case Facts, para. 10.
97
As discussed in section II.B.
98
Claus Roxin, Taterschaft und Tatherrschaft, (8th ed, 2006), p. 245.

11
III.A.2. Lieutenant Adelaide did not induce the commission of crime
35. The Defence recalls that commissions under Art.25(3)(b) of the Statute are a form of accessorial
liability at this Court,99 and yields a lower form of liability. In essence, to attach liability, there has
to be a causal link between the acts of the accused and the actual perpetrator of the crime.100
36. In Akayesu, the “direct” element of incitement implies that it must assume a direct form and
specifically provokes another to engage in a criminal act. However, as established prior,101
Lieutenant Adelaide’s speeches were equivocal, open-ended and figurative, leading to differing
interpretations.102 Additionally, the only time she was shown to issue an order, it was meant to
disperse the crowd of protestors. However, as established prior, the subsequent actions of the
soldiers had no nexus to the order.
37. It is also pertinent to note that at the adoption of the Convention on Genocide, the delegates
103
indicated that incitement must have been premeditated and carefully organized. In the instant
case, there is a lack of conclusive evidence to indicate that the accused’s speeches were
premeditated. Her decision to give the speech was precipitous (low morale of troops).104

III.B. Lieutenant Adelaide is not criminally responsible under Art. 25(3)(d)(ii)

38. In Lubanga, it was affirmed that contribution to a group crime yields the weakest form of
liability and thus, the contribution should be conditio sine qua non of the crime.105

III.B.1. The crime does not fall within the jurisdiction of the Court
39. The Chamber must satisfy itself that a crime within the jurisdiction of the Court was
committed.106 However, as argued prior, this has not been established.107

99
ICC, Prosecutor v. Mudacumura, ICC-01/04-01/12-1-Red, Decision on the Prosecutor’s application under Art. 58,
PTC II, 13 July 2012, para. 25.
100
ICTY, Prosecutor v. Blaškić, IT- 95-14-A, Appeal Judgment, 29 July 2004, para.73.
101
As discussed in section II.B.
102
ICTR, Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. Prosecutor, ICTR-99-52-A, Judgement, 28
November 2007, para. 682
103
Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September- 10 December
1948, Official Records of the General Assembly, statements by Mr. Morozov, p. 241.
104
Case Facts, para. 15.
105
ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-2842, Judgment pursuant to article 74 of the Statute, 14 March 2012,
para. 48.
106
ICC, Prosecutor v. Mbarushimana, ICC-01/04-01/10-465- Red, Decision on the confirmation of charges, 16
December 2011, para. 270.
107
As discussed in section I.

12
III.B.2. The accused did not make a significant contribution to the commission of crime
40. It is paramount that the accused’s contribution be connected to the commission of the crime and
not solely to the activities of the group in a general sense.108 The contribution should be assessed on
whether it has a larger or smaller effect on the crimes committed.109 The Defence submits that
Lieutenant Adelaide’s contribution is minimal (if not none). The crime did not occur due to her
speeches, but rather, instigated by the words and actions of her own soldiers.110 In contrast with
Gatete, whereby the accused expressly ordered the killing of Tutsis,111Lieutenant Adelaide had
never expressly ordered for her soldiers to attack the Typhons’ religious sites and historical
monuments. There was no specification on the manner in which the crimes should be committed.

III.B.3. The contribution was not made in the knowledge of the intention of the group to
commit the crime
41. In Katanga, the Court was of the position that the accused must be aware that the intention of
the group existed when engaging in the conduct which constituted his or her contribution.112 The
Defence would like to point out that prior to the speeches (the alleged contribution of the accused),
there was no reasonable way of ascertaining if the soldiers had prior intention to destroy the
building which could have only been formed following the accidental shot and/or prompting of
fellow soldiers. Additionally, knowledge of a general criminal intention will not suffice. 113

IV. PRAYER FOR RELIEF

The Defence hereby requests the PTC to declare the case against Lieutenant Adelaide: (1) is not
within the jurisdiction of the Court pursuant to Art.19; (2) is inadmissible pursuant to Art. 17(1)(d);
and (3) there are no reasonable grounds to believe Lieutenant Adelaide is criminally responsible
under Art.25(3)(b) and/or alternatively Art. 25(3)(d) of the Rome Statute.

108
ICC, Prosecutor v. Katanga, ICC-01/04-01/07-4, Judgment pursuant to article 74 of the Statute, 7 March 2014, para.
1632.
109
ICC, Prosecutor v. Mbarushimana, ICC-01/04-01/10-465-Red, Decision on the confirmation of charges, 16
December 2011, para. 284.
110
Case Facts. paras. 16, 19.
111
ICTR, Prosecutor v. Jean-Baptiste Gatete, ICTR-2000-61-T, Trial Judgement, 31 March 2011, para. 589
112
ICC, Prosecutor v. Germain Katanga, ICC-01/04-01/07-4, Judgment pursuant to article 74 of the Statute, 7 March
2014, paras.1641 & 1642.
113
ICC, Prosecutor v. Mbarushimana, ICC-01/04-01/10-465-Red, Decision on the confirmation of charges, 16
December 2011, para. 288.

13