Speech – Defence

The counsel seeks permission to refer to the bench collectively as your lordships. Much
obliged.

Your lordships, the counsel today is here on the behalf of Mr. Afogato of Jurassica in the
case of Prosecutor v. Mr. Afogato of Jurassica.

The counsel here shall be dealing with issue one and two for a time of around 15 minutes
whereas my co-counsel shall be dealing with issues three and four for approximately the
same time. The defence also reserves 3 mins for sur-rebuttals.

Now if your lordships are well versed with the facts of the case,

1. The Republic of Jurassica (“Jurassica") is a federal republic that covers much of the
large continent of Pleistocenia.In 1989, Mr. Afogato, a young and charismatic leader
of the Alkaloid party, became the youngest President of Jurassica.
2. There are two major parties namely the Tannoid and the Alkaloid.By 2014, the
Tannoid party had overtaken the Alkaloid party as the majority party in Jurassica.
3. As far as the attacks against the LGBTIQ+ community, Mr. Afogato had never
publicly taken responsibility for any such alleged incidents.
4. There have been political turmoil between Jurassic and Triassica from 2001, albeit
non-violent for the most part till 2008. Much of these operations after 2008 were
covert, although there were also some recorded instances of violence between the
Jurassic Armed Forces on the one hand, and the Triassic police authorities and army
on the other.
5. Ms. Chamomile refused to press any charges against Mr. Afogato, because any
alleged crimes would be attributable to him only in his official capacity as the
President of Jurassica. As of 2023, no attempts have been made to prosecute Mr.
Afogato in Jurassica

the prosecutor wants to move to directly to the 1st issue at hand which is – Whether
the ICC has the jurisdiction to prosecute and hear the case against Mr. Afogato.
Your lordships it is humbly submitted on behalf of the defence that the ICC has no
jurisdiction to hear and prosecute the case against Mr. Afogato and the same shall be
proved to your lordships based on three grounds.

Firstly, it is submitted in front of the court that the in the present case the territorial
principle mentioned under Art 12(2)(a) of the Rome Statute would not be applicable.

Your lordships the territorial jurisdiction simply confers upon the ICC jurisdiction of
cases in which the alleged conduct in question took place in territory of state which is a
party to the Rome statute. This rule also applies to cases where the party committing the
alleged act itself is not a party to the Rome Statue. , so for example a person A who
belongs to a country X that is not a part of the Rome Statute commits an international
crime in the territory of a country Y which is a party, then X need not give consent to the
proceedings and the person can be tried for the crime under Art 12(2)(a).

Now, according to Art 61(5), “the Prosecutor shall support each charge with sufficient
evidence to establish substantial grounds to believe that the person committed the crime
charged.” What this ‘substantial grounds to believe’ means has not been defined by the
ICC, however in the Lubanga case, the PTC-1 relied on the jurisprudence of ECHR to
define the standard, it decided that substantial grounds to believe means “serious reasons
or grounds to believe”

Your lordships in the present case there is only some evidence of a conflict which show
Jurassic Armed Forces altercating with the Triassica Police Authorities (moot para 8 line
8). However, this conflict is not the basis on which Triassica has approached the ICC,
therefore irrelevant to the present case. Your lordships the alleged crimes took place over
the course of 11 years and there is not a lot of proof to show for it that would create strong
reasons for believing that the crime took place in the territory of Triassica.

Since, there isn’t enough proof that the alleged crimes have taken place in the territory of
Triassica, the principle under Art 12(2)(a) will not be applicable in the present
jurisdiction.
Now moving on the second argument.
Secondly, ICC should not be allowed to prosecute or hear the matter since Jurassica is not
a state party to the Rome Statute and it has not consented to the proceedings.

In the absence of an automatic jurisdiction in the form of territorial jurisdiction under Art
12(2)(a), as Art 12(3) emphasizes that the ICC may only exercise jurisdiction if such a
state willingly submits to the jurisdiction of the ICC or if the case is referred to the
prosecutor by the United Nations Security Council.

It is a well-established principle of the international law that a State will not be subjected
to a treaty to which it is not a part of. Such a wide interpretation of Rome Statute which
gives it universal jurisdiction was explicitly rejected during the framing of the Rome
Staute (fn 13 page 12).

Further Art 34 of the VCLT, categorically lays down that treaties cannot create any rights
or any obligation over a state that has not consented to such rights and obligations.

In the present case, the matter was referred to the Prosecution by Triassica and not the
UNSC thus, the ICC has no right to enforce its jurisdiction over Jurassica since it has not
consented to the proceedings nor is it a state party to the Rome Statute.

Your lordships, this applies to Art 5 and Art 11 of the Rome Statute, since it is not in the
jurisdiction of the ICC to impose these articles on Jurassica and additionally Mr. Afogato,
the subject matter jurisdiction under Art 5 and temporal jurisdiction under Art 11 would
not be applicable in the present case. The ICC is bound by the provisions of the Rome
Statute and can only exercise its powers within the limits set out in the Statute.

Therefore, if a situation or case falls outside the jurisdiction of the ICC, it cannot impose
any of the articles of the Rome Statute, including the provisions related to the
investigation, prosecution, and punishment of international crimes. The ICC's powers are
limited by its jurisdiction, and it cannot exceed those limits.

Thus the Rome Statute including Art 5 and 11 become inapplicable given the lack of
jurisdiction.
Thirdly, it is submitted before this court that the case itself is inadmissible in front of the
ICC under Art 17 of the Rome Statute.

Your lordships, the Rome Statute works on the principle of complementarity, which
basically says that the ICC will not supersede but instead work in a nature that is
complementary to that of national courts, however it still gives a preference to national
jurisdiction. This concept is essentially connected to the idea of sovereignty of states.

Art 17 of the Rome Statute embodies this principle of complementarity. However it gives
a condition that if a state is unwilling or unable to prosecute or hear the case against an
individual then such a case will have to be tried in the ICC. It essentially says that the
national jurisdiction shall have the primacy as long as the state is not ‘wholly inactive’.
(fn 18 page 13)

Your lordships to understand better we have to take a look at the situation in Jurassica
from a political angle. Please note the fact that as stated in para 3 of the prop, Ms.
Chamomile who is the current President of Jurassica and Mr. Afogato the former
President are two leaders of opposing political groups in Jurassica. Mr. Afogato still holds
considerable power and influence in the nation and politically it would be in the favour of
Ms. Chamomile to have Mr. Afogato investigated and prosecuted for the alleged crimes.

However, (moot para 10) Ms. Chamomile came to the conclusion that no charges can be
attributable to Mr. Afogato since they are protected under his official capacity as the
former President of Jurassica and declined to press any charges against Mr. Afogato, this
conclusion has been reached after an official investigation.

Thus, given the complementary nature of the Rome Statute as well as the Art 17(1)(b) of
the Statute, the case becomes inadmissible in front of the ICC.

Therefore, given the fact that ICC does not have an automatic territorial jurisdiction
given the lack of proof, Triassica not being a party to Rome Statute, and the case
itself being inadmissible under ICC rules, it is concluded that ICC does not have the
jurisdiction to prosecute or hear the case against Mr. Afogato.
Now if there are no more questions related to the issue, the defence would like to move to
2nd issue at hand – which is whether or not Mr. Afogato enjoys any immunity as a
former head of state purporting to have acted in an official capacity.

The defence humbly submits before your lordships that Mr. Afogato has immunity ratione
materiae as a former head of state who acted in an official capacity. The same shall be
proved to your lordships on two grounds.

Firstly, it is submitted before this Hon’ble Court that Art 27 of the Rome Statute which
removes immunity for any person in an official position would not be applicable in the
present case.

Art 27 is explicit when it says that any act done under ‘official capacity’ is ‘irrelevant’. It
mentions that this Statute shall apply equally to every person irrespective of their
position, and also expands that no form of immunity, whether under international law or
national law, shall stop the Court from exercising its jurisdiction over such a person.

However, Art 27 of the statute will only be applicable on Mr. Afogato once Jurassica
becomes a state party to the Rome Statute. In the present case neither is Jurassica a state
party to the Statute and neither has it accepted the jurisdiction through the process laid
down in Art 12(3). Because of this Art 27 cannot be enforced upon Mr. Afogato.

Even under the preamble of the Statute, such power of ending impunity and preventing
crimes that it talks about is not unrestricted and must operate under specific, clear and
strict conditions of procedure, namely conditions relating to jurisdiction. Jurisdiction
therefore holds more authority than the preamble.

Your lordships, please note that in virtue of Art 13 there are 3 ways in which ICC’s
jurisdiction is triggered, 1. when a state party to the statute makes a referral to the Office
of Prosecutor under Art 13(a), 2. When the situation is referred to the ICC by UNSC
under Art 13(b) 3. Prosecutor has initiated an investigation in respect of such a crime in
accordance with article 15.
Furthermore, the jurisdiction to impose Art 27 on the states not party to the statute only
happens when the matter is referred to the ICC by the UNSC under Art 13(b). Art 13(a) in
which a state party makes a referral, hasn’t been given the jurisdiction to impose Art 27,
because such a broad interpretation would interfere with the sovereignty of nations as
well as infringe upon the well-established international rules that a treaty cannot be
enforced on countries not party to it.

The situation in Iraq: In 2005, the ICC prosecutor declined to open an investigation into
the situation in Iraq because Iraq was not a state party to the Rome Statute, and the United
Nations Security Council had not referred the situation to the ICC.

Thus Art 27 of the Rome Statute will not be applicable in the present case as the same is
not within the jurisdiction of the court and Jurassica is not a party to the statute.

Now moving on to my second argument.

Secondly, it is submitted before the court that Mr. Affogato enjoys immunity ratione
materiae as a former head of state who acted in an official capacity.

There are two forms of immunities – immunity ratione materiae and immunity ratione
personae, the former is for all the officials who have acted in an official capacity whereas
the latter is given only to those holding high powers currently.

Immunity ratione materiae is recognized under customary international law, as well as in

various international treaties and conventions, including the Art 31 of VCDR, Art 43 of
the VCCR, and the Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, among others.

However there are two recognised two restrictions to this principle. It recognised that this
immunity can be waived off when a situation concerns international crimes which for the
purposes of this statute have been defined under Art 5.

However, if it is argued that international law has recognised international crimes as an

exception to the international law, it does not really affect the present case since ICC does
not have the jurisdiction to hear the case anyway. In order for ICC to take into the
consideration the exception of jus cogens, the case has to first be admissible to be bought
before the ICC who shall have the jurisdiction to prosecute the case. Both of these
conditions fail as has been proved in issue 1.

Thus it is concluded that given the inapplicability of Art 27 of the Statute and given the
well settled international law principles related to immunity ratione materiae, it is
concluded that Mr. Afogato has the immunity as a former head of state who acted in an
official capacity.

With this I would like to conclude the defence’s arguments for the second issue, if there
are no more questions.

Much obliged, now I would like to call upon my co-counsel to argue on issue three and
four