Oral Pleading Speech

Good morning everyone,

Your honours,

Today the Counsel for the Defence consists of Demetra Ricci, Georgia Canura, Marlinde
Kaptein and I, Kenneth AIkhoje. The Defence submits three main arguments: first, the
drones have not been delivered for the purpose of facilitating the crime of aggression as
defined by Article 8bis of the Rome Statute; second, Mr. Khamenei and Mr. Raisi cannot be
held liable for aiding and abetting a crime of aggression under article 25(3)(c) read in
conjuction with Article 25(3)bis of the Rome Statute and last, it is inconsistent with the right
to counsel of one’s own choosing and the interest of justice to appoint counsel against the
wishes of Khamenei and Raisi.

With your permission I will begin with the first submission for the Counsel of the defendant.

Issue 1 – Subsection A

Firstly, the evidence suggests that the scale and impact of the drone deliveries were
relatively minor compared to Russia's extensive and multifaceted war effort, involving
various military assets incurring significantly higher costs.

The drones were sent as disassembled parts for assembly in Russia’s Alabuga Special
Economic zone. However, their production timeline is behind schedule, and they are
unlikely to meet their target date of 2025. In addition, the disassembled drone elements
shipped from Iran constitute only 10% of the final production goal of drones in Russia.

Furthermore, the quality of the drones that are being assembled is questionable. One
example being the Iranian-supplied GPS system which is outdated and inaccurate, lacking
operator control and visual guidance. Compared to other military weapons used in Ukraine,
the scale of drone deployments was small, representing only 0.52% of Russian equipment
losses by November 2022.

Additionally, the economic disparity between Iranian drones and other military
expenditures is evident, as the overall cost of the drone program is one billion dollars,
significantly lower than the estimated 82 billion dollars spent by Russia's on the war effort.

The Defence would also like to highlight the timeline of events. The full-scale invasion of
Ukraine by the Russian army had already commenced independently of Iran's drone
deliveries on February 24, 2022. The historical arms trade relationship between Iran and
Russia, dating back to 1979, further suggests that the decision to launch the military
operation against Ukraine was made irrespective of the Iranian drone deliveries.
Therefore, the Defence asserts that the limited cost, scale, and quality of Iranian drone
deliveries, along with the production timeline and historical context, indicate their relatively
minor role in the broader conflict with Ukraine.

Issue 1 – Subsection B

The Defence would like to assert that the crime of aggression is not continuous and liability
for aiding and abetting should be assessed based on individual acts.

In assessing whether an individual is liable for the crime of aggression, the Court must
determine whether an individual’s ‘act of aggression’ by its ‘character’, ‘gravitty’ and ‘scale’
is a manifest violation of the Charter of the United Nations.

Utilising Article 8bis (2)(b) of the Rome Statute as an example, once a State carries out a
bombardment against the territory of another State and an assesment concludes that it was
a manifest violation, the individual would be held liable for the crime of aggression.

Treating aggression as continuous may lead to unnecessary overlap with other aspects of
international criminal law, particularly war crimes. The crime of aggression’s purpose is in
the prevention of State conflict and war, acknowledging aggression as continuous may
obscure this purpose.

Considering the terminology used in Article 8bis, it is apparent that liability is established on
the committal of specific acts rather than multiple or ongoing acts. Although the term
manifest is not plainly clear, the Defence would like to reaffirm the importance of the
nullem crimen principle that states we should strictly construe the definition of a crime and
in case of ambiguity, the definition should be construed in favour of the accused. Therefore,
we should not misconstrue the plain meaning of Article 8bis and interpret the Rome Statute
as closely as possible to the text.

Therefore, Khamenei and Raisi’s liability for aiding and abetting should be assessed solely on
the Russian invasion of Ukraine on the 24 February 2022 and not continuation of this
aggression.

Issue 1 – Subsection C

Concerning our next argument in regard to the leaders of Iran not being liable for aiding and
abetting the crime of aggression, it should be noted that the essential level of impact of the
assistance provided to the crime of aggression is characterized as a ‘substantive
contribution', however, this threshold which has not been satisfied by the delivery of
drones.

Although there is no clarification as to what the necessary threshold is required to establish

aiding and abetting under article 25(3)(c), the Trial Chambers analysis in the Lubanga case
provides a useful understanding. The Chamber suggested that accessories must have had a
"substantial effect" to be held liable, and co-perpetrators must have had "more than a
substantial effect," emphasising the hierarchy of the modes of liability.

Although there are competing viewpoints on the level of assistance required, as discussed in
the Bemba case, we affirm that even if such a standard was applied, the contribution of Mr.
Khamenei and Mr. Raisi were still too minimal to give rise to the standard of ‘some effect’ in
Bemba.

There are several arguments as to why the ‘substantial contribution’ threshold is the
appropriate standard that should be applied. One being the Rome Statute; Article 17(1)(d)
sets out the gravity and scale as a criterion for the admissibility of crimes to the Court. This
Article exemplifies the Court’s general approach that crimes must pass a designated
threshold of significance to fall within the purview of the Court. The Court’s jurisprudence
also points to this equally being applicable to contributions by an accessory to the principal
offence.

The Defence therefore argues that Khamenei and Raisi’s contributions did not meet the
substantial threshold as the evidence suggests that the drones delivered were relatively
limited in scale and impact compared to other endeavours by Russia’s armed forces. In
addition, even if the standard of ‘some effect’ were applicable, the delivery of the first
documented delivery of drones being in February 2023 implies that the impact of the
drones was virtually none as Russia had engaged in their campaign independent of the
drone delivery by Iran’s leaders.

Issue 1 – Subsection D

The Defence’s final argument in relation to Issue 1 I that the mens rea requirements under
Article 25(3)(c) and Article 30 have not been satisfied.

The mens rea element, under Article 25(3)(C) requires the accessory to assist the principal
offender to purposefully facilitate the commission of the crime. The accessory must not only
have knowledge that his or her assiatcne would lead to a crime but should lend the same
with intent to assist the principal offence. In addition, it is not sufficient to assume that the
accomplice is aware of the crime from information obtained from the public domain.

Furthermore, the mens rea reuqirment is two-fold, meaning that alongside Article 25(3)(c),
the accessory must also fulfill the mens rea requirement of Article 30 of knowledge and
intent.

With the applicable law considered, the Defence maintains their position that Khamenei and
Raisi do not satisfy the requirements: there is no evidence to show that Iran had supplied
the drones to Russia for their purposeful use in the invasion of the Ukraine.
In addition, the mens rea requirement could still not be fulfilled if the drone had been
supplied before the war as there is no evidence of their intentional and purposeful supply of
drones for the invasion of Ukraine on the 24 February 2022.

On the other hand, following the prosecutions argument, the mens rea is still not satisfied if
the drones were supplied after the commencing of the invasion as aggression is not
continuous and it would not be possible oi fulfill the mens rea after the completion of the
crime.