Legal Memo Assignment

LEGAL MEMORANDUM
TO: Pre-Trial Chamber 1 Judges
FROM:
SUBJECT: Jurisdiction of the ICC and Admissibility of the Situation Concerning Tully and
Jamrock
Date: November 20, 2021
It is advised that the International Criminal Court (ICC) has temporal, territorial,
personal, and material jurisdiction in the instant case. This is evidenced by Jamrock’s signing
and ratification of the statute; the commission of an article 51 crime in a country within the
jurisdiction of the court. It is further advised that when the incidents are viewed disjunctively,
the court may not have jurisdiction over the Shambo incidents as that crime was already
prosecuted.2 However, the court may have jurisdiction and find admissible the crimes in
Mercyside and Upland Town.
Under Article 11,3 the court only has jurisdiction over crimes committed after the entry
into force of the statute. The court before considering any other jurisdictional point must
convince itself that the crimes took place in a state that is a party to the Rome Statute4. This is
satisfied as Jamrock has signed and ratified the treaty. Therefore, it is advised that the court
may have temporal and territorial jurisdiction over the crimes committed in the instant case.
It is further advised that the court may have personal jurisdiction over the claim under
article 25 of the Statute. This article is considered to be reflective of customary international
law,5 which has long recognized that it is men not entities that commit crimes against
humanity.6 Tully committed his crimes against humanity against the people of Shambo,
Mercyside and Upland Town within Jamrock which gives the court jurisdiction to try him.
Furthermore, it is worth mentioning that he will not be immune from the court’s jurisdiction as
the statute applies to everyone regardless of present or past rank.7
The final jurisdictional issue is over the subject matter of the crimes. Article 5 of the
statute declares that crimes against humanity are among the most serious crimes of concern to
the international community as a whole. It is expanded upon in Article 7 and include murder,
torture, and rape. These are all crimes that have been committed by Tully in Jamrock.

1
Rome Statute 2002
2
Rome Statute 2002, Article 19(2)(b)
3
Rome Statute 2002
4
Rome Statute 2002, Article 12(1), (2)(b)
5
Prosecutor v. Tadic, Case No. IT-94-1-AR 72, Decision on the defence motion for interlocutory appeal on
jurisdiction, 2 Oct. 1995, paras. 128–137 (134)
6
In the Trial of the Major War Criminals (Proceedings of the International Military Tribunal Sitting at
Nuremberg, Germany, H.M. Attorney General by HMSO, London 1950, Part 22, 447)
7
Rome Statute 2002, Article 27. Decision on the Prosecution's Application for a Warrant of Arrest against Omar
Hassan Ahmad Al Bashir ICC-02/05-01/09-3, para 41

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 Legal Memo Assignment

Additionally, the Elements of Crime8 outlines the factors involved when considering these
crimes. In the case of murder, it must be the killing of one or more persons.9 Similarly, in the
case of torture, it must involve the infliction of mental or physical pain upon the victims who
were within the custody or control of the perpetrator.10 Rape is the invasion of the body of a
person by conduct resulting in penetration of any part of the body of the victim.11 In the instant
case, while the facts are silent on the number of persons killed, tortured or raped, the quantity
is irrelevant. It is advised that the court will have jurisdiction to hear the matter.
The next question to be answered is whether the case is admissible. Emanating from
the Kenyatta case12 the test for admissibility has two limbs, complementarity, and gravity.13
In assessing complementarity, article 1 of the Statute outlines that the ICC is
complementary to national proceedings. To determine this, two questions must be answered,
whether there is an ongoing investigation or prosecution and whether there were investigations
in the past and the state having jurisdiction decided not to prosecute.
In answering these questions, the crimes committed by Tully in Shambo should be
considered different from those in Mercyside and Upland Town. This is because, although, the
crimes were committed by the same person and the nature of the crimes are similar, it cannot
be accepted that this is one crime. With that view established, the crimes in Shambo would not
satisfy these questions as the local authorities had prosecuted Tully for the crimes and under
Article 17(1)(c), he cannot be retried for the same crime under Article 20(3).
An argument could be made under article 17(2) that the trial was a sham, and the
national authorities are unwilling or unable to carry out genuine investigations. However, this
is not supported by the facts as there is nothing to suggest that the Jamrock prosecutor and the
courts had acted improperly in handing down its sentence. Therefore, recalling article 1, the
role of the court is to be complementary to national proceedings and is not an appeals court in
the event of unsatisfactory decisions. It is advised that crimes in Shambo may be inadmissible
for complementarity.
As it relates to those crimes in Mercyside and Upland Town, no similar investigations
have been launched by the Jamrock authorities and it is not sufficient for them to indicate that
they may act in the future. This view is fortified by the decision in the Kenyatta case, which

8
International Criminal Court Elements of Crimes 2010
9
International Criminal Court Elements of Crimes 2010, Article 7(1)(a)
10
Ibid, Article 7(1)(f)
11
Ibid, Article 7(1)(g)
12
The situation in the Republic of Kenya in the case of The Prosecutor V. Francis Kirimi Muthaura, Uhuru Muigai
Kenyatta, and Mohammed Hussein Ali [2011]
13
Ibid, para 43

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 Legal Memo Assignment

noted that the progress of prosecutions is dependent on the facts available at trial not sometime
in the future. Therefore, inaction by the authorities in bringing charges is enough to ground
admissibility.14 Moreover, the Jamrock Prosecutor's objection, because the crimes were
already prosecuted implies that there is no intention to bring charges for Mercyside and Upland
Town. As if this were the case, the prosecutor may have alleged that the crimes are being
investigated and prosecution would follow in the future. The absence of such an argument is
declarative of an intention not to prosecute. In which case, the court must act.
This conclusion as it relates to the inadmissibility of the Shambo crimes and the
admissibility of the Mercyside and Upland Town crimes, subject to a finding on gravity,
removes any need for a discussion on whether the case being brought by the Prosecutor is
substantially the same as the crimes likely to be tried at the court are those which were not
tackled domestically.
It is not sufficient that the crimes committed are contained under Article 5 for the case
to be admissible before the court.15 Therefore, the gravity of the crime under article 17(1)(d)
of the statute is dependent on the nature, means, and impact of the alleged attack is critical.16
The court may also consider the extent of the damage caused, the nature of the unlawful
behaviour; the degree of participation of the convicted person; inter alia.17 Furthermore, it is
accepted that the gravity of the crime is not dependent on the number of victims but some
aggravating factor in the commission of the crime.18 These factors include any prior conviction
for similar crimes, abuse of power, or discrimination.19
In the instant case, Tully has been previously convicted for his crimes in Shambo,
although this may be doubted as the crimes may have happened contemporaneously.
Additionally, he was a Don and former MP capable of exerting power and influence that many
other persons could not and in his position of power he utilized it to commit atrocities. The
most insidious part of this case, however, is the obvious racial overtones and discrimination
evidenced in his crime patterns as he targets minority communities either in Shambo
(Maroons), Mercyside (Haitians), and Upland Town (Syrians). All of these factors, in the
absence of the number of victims, paint a clear picture of calculated, ruthless violence aimed
at a minority civilian population. Consequently, the court may find the case admissible.

14
The situation in the Republic of Kenya in the case of The Prosecutor V. Francis Kirimi Muthaura, Uhuru Muigai
Kenyatta, and Mohammed Hussein Ali [2011] para 44
15
The Prosecutor v. Bahr Idriss Abu Garda ICC-02/05-02/09, para 30
16
Ibid, para 31
17
International Criminal Court Rules of Procedures and Evidence, Article 145(1)(c)
18
The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé ICC-02/11-01/15, para 11
19
International Criminal Court Rules of Procedures and Evidence, Article 145(2)(b)(i),(ii),(v)

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 Legal Memo Assignment

LEGAL MEMORANDUM
TO: ICJ Judges
FROM:
SUBJECT: ICJ Jurisdiction to Issue an Advisory Opinion to UGCC and WSLP
DATE: November 21, 2021
It is advised that the court may have jurisdiction under Articles 65, 20 and 96,21 to hear
the advisory opinion request from UGCC, as it is a UN specialized agency and has asked a
legal question within the scope of its duties. Similarly, the court may answer the question as
the proposed actions are specifically the kinds of actions that the UGCC may be expected to
undertake in fulfilling its mandate. Conversely, it is further advised that the WSLP cannot
request an advisory opinion, and even if disagreed with by the court, the court may not answer
the question as it falls outside the scope of the WSLP's activities.
The International Court of Justice (ICJ) may issue advisory opinions on any legal
question at the request of any body authorized under the United Nations (UN) Charter.22 These
bodies include, inter alia, the organs and specialized agencies with the approval of the general
assembly that may ask any legal question within the scope of their activities.23
From the facts, it is dispositive that UGCC is a UN specialized agency and has been
empowered by the General Assembly to submit its question to the court, as demonstrated by
the depositing of the request by the UN Secretary-General (UNSG).
A legal question is one framed in terms of the law which appear to be a question of a
legal character.24 In the WHO Advisory Opinion,25 the court noted that the existence of a
political aspect to question does not deprive it of its legal character.26 The question asked by
the UGCC is legal as it is seeking to determine whether its proposed licensing and profit-
sharing agreements are supported by international law. Therefore, applying the WHO principle,
mutatis mutandis, the existence of an economic element to the question would not deprive it of
its legal characteristics and the court may find that this is a legal question.
The next question is whether they fall within the scope of their activities. This is done
by considering the object and purpose of the treaty empowering the entity.27 In the instant case,
the main function of the UGCC is the regulation of deep seabed mining, inter alia. Thus, their

20
International Court of Justice Statute (1946)
21
United Nations Charter (1945)
22
Ibid, Article 65(1)
23
Ibid, Article 96 (b)
24
Western Sahara, Advisory Opinion, I. C. J. Reports 1975, p. 18, para. 15
25
The legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I. C. J. Reports
1996, p. 66
26
Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion,
I. C. J. Reports 1973, p. 172, para. 14
27
Ibid, para 19

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 Legal Memo Assignment

proposed profit sharing and licensing agreements to regulate deep seabed mining corresponds
with their purpose. Moreover, the absence of precise language enabling them to enter into such
agreements does not undermine their ability to do so, as some powers may be implied for the
proper functioning of the entity.28 As such, it is clear that one of the best ways to ensure
responsible mining of the seabed is to regulate it through issuing licenses. Additionally, the
profit-sharing scheme gives effect to the accepted view that the resources of the deep seabed
are the common heritage of mankind.29 It is therefore advised that the court may have
jurisdiction to issue an advisory opinion to UGCC and may answer the question as it is a legal
question within the scope of their activities.
However, the situation regarding WSLP is different. As noted above, the UN charter is
explicit that only, inter alia, specialized agencies may request an advisory opinion. WSLP is
not a specialized agency of the UN and their partnership with the UGCC (a UN specialized
agency) does not confer on them the capacity to appear before the court. The situation is curious
as the UNSG, presumably with the authorization of the general assembly, submitted the joint
request which may suggest that the UN has empowered WSLP to appear. However, this
presumption alone is not enough, as the court will make its finding on whether it has
jurisdiction to issue an opinion to the WSLP.30 As noted earlier, the WSLP is a public-private
partnership. In light of this, the consistent position of the ICJ has been to reject any attempt by
Inter-governmental organizations from appearing before them as parties. Moreover, the UN
Charter is clear on those who may access the court and it is not permissible for the UN, without
amending the charter, to empower WSLP to request an opinion. Therefore, it is advised that
the court may not have jurisdiction to issue an opinion to the WSLP as it cannot appear before
the court in either its advisory or contentious jurisdiction.
Assuming, but not accepting, that the conclusion above is incorrect and the court has
jurisdiction, the next consideration is whether the question is a legal question falling within the
scope of the WSLP's activities. It is evident based on the analysis above that the question is
legal. The challenge lies in concluding that the proposed ban on the fishing of the goatfish in
all EEZ’s can be answered by the court. The WSLP was formed to regulate fishing on the high
seas. Considering that the EEZ and the High Seas are separate legal entities governed by

28
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I. C. J. Reports 1949,
pp. 182-183; cf. Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory
Opinion, I. C. J. Reports 1954, p. 57.
29
Montego Bay Convention on the Law of the Sea, Article 140
30
The legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I. C. J. Reports
1996, p. 66, para 29

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 Legal Memo Assignment

different parts of the Law of the Sea Convention, any authority which they may have to regulate
the high seas, although that is dubious, does not translate to the regulation of fishing in the
EEZ. Article 86 of the Convention is explicit that the High Seas include all the seas excluding
the EEZ, inter alia. Additionally, under article 56, the regulation of living resources (including
fish) is the exclusive responsibility of coastal states. As such, any ban on goat fish fishing
would have to be enacted by coastal states and cannot be done by the WSLP. Consequently,
even if the court found that the WSLP has jurisdiction to appear before the court, it would be
unable to answer the question as it falls outside the scope of the WSLP’s activities.
LEGAL MEMORANDUM
TO: ICJ Judges
FROM:
SUBECT: Isle of Antigua v Republic of Tobago
DATE: November 22, 2021
It is advised that despite the differing way in which IA and Tobago submitted to the
court’s jurisdiction, the declarations serve to empower the court to hear the matter.
Additionally, Tobago’s reservation has no bearing on the case as investment matters have been
accepted to be a matter of international law and states can act in diplomatic protection of its
companies affected by governmental action of another state.31 Lastly, the existence of the CCJ
where the dispute could have been brought does not interfere with the jurisdiction of the ICJ to
hear the matter.
Under Article 36(2) of the Statute, a state may submit a declaration accepting ipso facto,
subject to any reservations, the compulsory jurisdiction of the court. Furthermore, these
declarations have been held to be facultative and unilateral engagements by a state,32 and
should be deposited with the UN Secretary-General.33 Therefore, in the instant case, the Isles
of Antigua would have validly submitted its declaration through the UNSG accepting the
jurisdiction of the court. It should be noted that in the absence of facts to the contrary the
submission of the declaration to the UNSG implies that IA is a member of either the UN or
state party within the meaning of Article 35(1) of the statute.
However, the facts also show that Tobago submitted its declaration through the ICJ
registrar which indicates that Tobago is not a state party/UN member. Thereby needing to
satisfy article 35(2) of the statute and the UNSC Resolution 9 of 1946 to appear before the
court. There may be questions as to whether the requirements of the resolution have been

31
Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3., para 83
32
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392., para 59
33
International Court of Justice Statute 1946, Article 36(4)

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completely followed by Tobago, the absence of which may require a resubmission of the
declaration. Nevertheless, it is not a point that will bar the court from exercising jurisdiction.
Tobago's declaration unlike IA's includes a reservation on matters which it considers to
be domestic. Recalling the need for reciprocity34 in the scope of the declarations, the court will
only have jurisdiction over the coinciding elements of the declaration.35 Therefore, applying
the principle from the Norwegian Loans Case, IA would be entitled to rely on the narrow
construction of Tobago’s declaration. Nevertheless, unlike the Norwegian Loans Case, the
narrow construction may not be conclusive to the case, as the ICJ in the Barcelona Tractions
Case noted that breaches of investment agreements including foreign investors is a matter of
international law and the court would have jurisdiction to hear it. Consequently, the reservation
and IA’s earlier international notice would not serve to prohibit the court from hearing the
claim.
Lastly, it should be noted that the membership of the disputants in CARICOM with
access to the CCJ is not a bar to the ICJ jurisdiction, as the ICJ is empowered to decide all
matters of an international nature referred to it by states. In a word, there is no rule mandating
the exhaustion of local remedies before appearing before the court.
LEGAL MEMORANDUM
TO: Lucie
FROM:
SUBJECT: Basis and Likelihood of Success of an Application for Intervention
Date: November 25, 2021
It is advised that for Lucie to be able to apply for intervener status, she would need to
comply under UNSC Resolution 9 of 1946 to be a state party under article 35(1) of the Statute.
Moreover, any question as to whether Lucie is a state in international law is settled as she
complies with all the criteria outlined in the Montevideo Convention. It is further advised that
while she may have an interest sufficient for article 62(1), she may not succeed before the court
as the protection of native investors interests in foreign companies is not recognized under
international law.
Whether Lucie can intervene in the matter is dependent on whether they are a state
within international law and have access to the court under the statute. This is a determination
that has to be made by the court and is distinct from a consideration of consent as it involves
whether the state can access the court.36 Access is governed by article 35(1) of the statute that

34
International Court of Justice Statute, Article 36(3)
35
Case of Certain Norwegian Loans, Judgment of July 6th, 1957: I.C. J. Reports 1957, p. 9. Para. 23-24
36
Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, 7 | Page Judgment, I.C.J.
Reports 2004, para. 129

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declares that state parties shall have access to the court, and 35(2) indicates that non-state
parties may gain access by complying with the security council resolution. The resolution
provides that for a non-state party/ non-member of the UN, a declaration should be submitted
to the registrar of the court declaring inter alia to act in good faith and comply with Article 94
of the charter. In the instant case, Lucie not being a member of the UN would not be an
automatic state party to the statute and would need to comply with the UNSC resolution to
appear before the court.
However, before this is done, there is a vexing issue of whether Lucie is even a state in
international law to be able to appear before the court. The Montevideo Convention (1933)
Article 1 outlines four (4) criteria for a state to be determined. They are a permanent population,
defined territory, government, and relations with other states. The first three elements are not
in question, what must be considered is to what extent does the recognition by UNESCO and
a few countries confer de jure statehood on Lucie. Based on the Commission on Yugoslavia37
recognition by states and membership in an international organization may be declarative of
sovereignty. To that end, Lucie is recognized by a few states, but nothing exists to show Lucie’s
membership in any international organization. Nonetheless, it is advised that Lucie may be
considered a state based on its independent foreign relations and the treatment of it by some
members of the international community as being a sovereign state.
The basis for Lucie’s intervention would have to be grounded under article 62 of the
statute where it believes that it has an interest in the matter. In this case, Lucie’s interest would
relate to the diplomatic protection38 of her investor’s interests in the nationalized LPI. Her
ability to intervene will be left to the discretion of the court.39 However, while this may be a
valid interest, the likelihood of success is doubtful as the court noted in the Barcelona Tractions
Case that there is no principle of international law that allows for the native state of investors
to intervene on behalf of their nationals when they invested in a foreign company that conducts
business in another country. In that case, the court ruled that the country of incorporation would
be the appropriate country to sue. This case is authoritative on this point and maybe applied,
mutatis mutandis, to the instant case. Therefore, it is advised that Lucie may not be able to
intervene in the matter as the interest that it is seeking to protect is to be done by Tobago, where
the company was incorporated, and Tobago is already a party to the case.

37
Opinion No. IO, 4 July 1992, in 92 ZLR 206-208, at paragraph 5
38
Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3., para 51
39
International Court of Justice Statute 1946, Article 62(2)

ID Number: Course Code: LAW3930