Memorial For Prosecution - Team Better Call Us
Memorial For Prosecution - Team Better Call Us
Memorial For Prosecution - Team Better Call Us
IN THE
THE PROSECUTOR
versus
TABLE OF CONTENTS
1. Statement of Jurisdiction
2. Statement of facts
3. Question presented
4. Summary of pleadings
5. Pleadings
6. Prayer for relief
TABLE OF ABBREVIATIONS
1. ICC- International Criminal Court
2. OAT- Oasis Access Treaty
3. OTP- Office Of The Prosecutor
4. ART- Article
5. IHL- International Humanitarian Law
6. CSO- Civil Society Organization
INDEX OF AUTHORITIES
1. Article 8 of the Rome Statute
2. Article 19 of the Rome Statute
3. Article 17 of the Rome Statute
4. Article 25 of the Rome Statute
STATEMENT OF JURISDICTION
Under Article 5 of the ICC Statute, the Honourable International Criminal Court (ICC)
possesses the requisite jurisdiction to adjudicate the instant case, which has been invoked
subsequent to the proceedings in pursuance of Article 19 of the Rome Statute initiated by the
Prosecution under Article 17(1)(d) of the Rome Statute followed by Article 25(3)(b)(d). The
Prosecution humbly submits to the jurisdiction of the Honourable Court.OTP
STATEMENT OF FACTS
Lieutenant Maham Xander serves in the border protection forces of the Republic of Hans, a
landlocked country with a population of 18.75 million. The nation faces economic challenges
due to global warming, leading to a need for access to water. The Zephyrists, followers of the
dominant religion in Hans, believe in a prophecy foretelling their dominion over the world's
oceans.
In the neighbouring Republic of Nimah, a secular maritime nation with advanced technology
and a thriving economy, tensions arise over access to the 'Forgotten Oasis' waterfall. In 1961,
the Oasis Access Treaty (OAT) was signed, allowing limited access for Zephyrists, but
tensions persist.
In 2010, Nimah's response to protests in Hans sparked further unrest. The election of Prime
Minister William Saddy in 2015 intensified the situation. In December 2018, PM Saddy
declared the need for unrestricted access, leading to Lieutenant Xander initiating an airstrike
on 21st september 2019. Han’s troops airdroped 500 clusters of butterfly mines which
resulted in the loss of 23 military personnel, with 40 military personnel injured and 130
civilians were fatally injured, the majority of which were children and women.. In response,
Nimah halts access to the waterfall for Hans.
Lieutenant Xander, appointed by PM Saddy, declares the mission to secure access to the holy
waterfall, leading to military actions. Nimah deploys troops, and a butterfly mine attack
results in casualties. This attack resulted in the tragic loss of five ICRC personnel, the
destruction of two medical vehicles, and the casualties of 47 military personnel. The attack
also resulted in 141 civilians and 67 military personnel being injured. Two days later ICRC
issued an official statement acknowledging the loss of six dedicated individuals. Nimah's
Premier condemns Hans' actions, emphasising peace. Despite international pressure, Hans
takes no action, while Nimah is a party to the Rome Statute. The situation remains
unresolved, with escalating military actions and a call for a peaceful resolution.
QUESTIONS PRESENTED
Issue 1:
Whether there are reasonable grounds to believe that the case against Lieutenant Maham
Xander concerning the war crime of “Intentionally directing attacks against personnel,
installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping
mission in accordance with the Charter of the United Nations, as long as they are entitled to
the protection given to civilians or civilian objects under the international law of armed
conflict” falls within the jurisdiction of the Court pursuant to article 19 of the Rome Statute.
Issue 2:
Whether there are reasonable grounds to believe the case against Lieutenant Maham Xander
concerning the war crime of “Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations, as long as they are entitled to the
protection given to civilians or civilian objects under the international law of armed conflict”
is admissible pursuant to article 17(1)(d) of the Rome Statute.
Issue 3:
Whether there are reasonable grounds to believe that Lieutenant Maham Xander is criminally
responsible for the war crime of “Intentionally directing attacks against personnel,
installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping
mission in accordance with the Charter of the United Nations, as long as they are entitled to
the protection given to civilians or civilian objects under the international law of armed
conflict” under article 25(3)(b) and/or article 25(3)(d) of the Rome Statute.
SUMMARY OF PLEADINGS
Issue 1:
The case involves Lieutenant Maham Xander facing war crime charges for directing attacks
against humanitarian and peacekeeping missions in the Republic of Nimah. The ICC's
admissibility criteria, focusing on complementarity and gravity, are met: The Republic of
Nimah is unable to address the situation, and the Republic of Hans shows no willingness to
act. The alleged war crimes, occurring in the context of long standing disputes, meet the
gravity threshold for ICC intervention. Comparative examples include ICC involvement in
Palestine, despite opposition from Israel, and the ICC Appeals Chamber overturning an
investigation in Afghanistan due to lack of cooperation. Overall, the argument emphasises the
ICC's crucial role in addressing crimes in prolonged conflicts and international contexts.
Issue 2:
Lieutenant Maham Xander faces charges for intentionally attacking humanitarian missions,
violating the Rome Statute. The key issue is whether the case is sufficiently grave under
Article 17(1)(d). The argument points out the lack of a clear definition for "gravity" and
asserts that Xander's actions, causing significant harm, meet the threshold. Violations of
International Humanitarian Law, such as indiscriminate weapon use and attacks on medical
facilities, further contribute to the gravity. In summary, the case fulfils admissibility criteria,
highlighting Xander's role as a senior leader responsible for serious violations.
Issue 3:
The case questions Lieutenant Maham Xander's criminal responsibility for war crimes under
Article 25(3)(b) and/or Article 25(3)(d) of the Rome Statute. Xander, a military commander
from the Republic of Hans, is accused of intentionally ordering attacks on humanitarian
missions in the Republic of Nimah between December 2018 and April 2020. Article 25(3)(b)
addresses individual responsibility in command roles, and the argument asserts Xander's
liability for commanding these attacks. The focus is on her authority as a military
commander, drawing parallels with the Nahimana et al. Appeals Chamber decision that
emphasised the link between military actions and individual responsibility.
PLEADINGS
Issue 1
Whether there are reasonable grounds to believe that the case against Lieutenant
Maham Xander concerning the war crime of “Intentionally directing attacks against
personnel, installations, material, units or vehicles involved in a humanitarian assistance
or peacekeeping mission in accordance with the Charter of the United Nations, as long
as they are entitled to the protection given to civilians or civilian objects under the
international law of armed conflict” falls within the jurisdiction of the Court pursuant
to article 19 of the Rome Statute.
After receiving several messages from national and international civil society organisations
(CSOs), the OTP of the ICC initiated a proprio motu preliminary examination into the
situation in the Republic of Hans and Republic of Nimah on August 12, 2020. An
investigation into the situation in the Republics of Hans and Nimah was approved by Pre-
Trial Chamber II of the International Criminal Court on January 15, 2021.
Pre-Trial Chamber II issued a warrant for Lieutenant Xander of the Republic of Hans army's
arrest and subsequent surrender on November 11, 2022, for war crimes allegedly committed
in the Republic of Nimah between December 2018 and April 2020 that involved attacking
people or property involved in a humanitarian assistance or peacekeeping mission.
The case involving Lieutenant Maham Xander and the alleged war crimes committed in the
Republic of Nimah has been brought before the International Criminal Court (ICC).
Lieutenant Xander, a member of the border protection forces of the non-state party Republic
of Hans, faces charges related to attacking personnel or objects involved in a humanitarian
assistance or peacekeeping mission.
Article 19 of the Rome Statute outlines the criteria for the admissibility of cases before the
ICC. It requires the Court to satisfy itself that the case is admissible based on
complementarity and gravity. In the case of Lieutenant Xander, both criteria can be met,
justifying the admissibility of the case.
The principle of complementarity stipulates that the ICC can only intervene when a state is
unwilling or unable to genuinely prosecute the case. The Republic of Nimah, where the
alleged crimes occurred, has been unable to address the situation effectively. Despite
significant international pressure, the government of the Republic of Hans has not taken any
action to investigate or prosecute crimes committed on the Hans-Nimah Border between
December 2018 and April 2020. This inaction demonstrates the unwillingness or inability of
the national legal system of the Republic of Hans to genuinely address the crimes, justifying
ICC intervention.
The gravity criterion ensures that the ICC focuses on the most serious crimes of international
concern. Lieutenant Xander's alleged war crimes, involving attacks on humanitarian and
peacekeeping missions, fall within the ambit of grave offences that warrant ICC attention.
The attacks resulted in substantial loss of life, injuries to civilians and military personnel, and
significant destruction, meeting the gravity threshold for ICC intervention.
The historical context of the long standing disputes between the Republic of Hans and the
Republic of Nimah over access to the Forgotten Oasis provides the backdrop for Lieutenant
Xander's actions. The three wars known as 'The Sacred Oasis Wars' reflect the deep-rooted
tensions and conflicts between the two nations. The ICC, as an international judicial body,
plays a crucial role in addressing crimes committed in the context of such protracted conflicts,
ensuring accountability and justice.
In 2015, the Palestinian Authority acceded to the Rome Statute 1, which governs the ICC. In
response, the ICC Prosecutor initiated a preliminary examination into the situation in
Palestine, including allegations of war crimes committed by both Israeli and Palestinian
forces. The jurisdictional question arises because Israel is not a state party to the Rome
Statute, and its government strongly opposed the ICC's involvement.
In a similar way, the ICC Prosecutor initiated an examination into alleged war crimes and
crimes against humanity committed in Afghanistan 2. This examination included crimes
allegedly committed by the Taliban, Afghan National Security Forces, and U.S. military
personnel. The U.S., which is not a state party to the Rome Statute, vehemently opposed the
investigation. The ICC Appeals Chamber eventually overturned the Pre-Trial Chamber's
authorization to investigate, citing the lack of cooperation from relevant parties and the
absence of prospects for a successful investigation.
Issue 2
Whether there are reasonable grounds to believe the case against Lieutenant Maham
Xander concerning the war crime of “Intentionally directing attacks against personnel,
installations, material, units or vehicles involved in a humanitarian assistance or
peacekeeping mission in accordance with the Charter of the United Nations, as long as
they are entitled to the protection given to civilians or civilian objects under the
international law of armed conflict” is admissible pursuant to article 17(1)(d) of the
Rome Statute.
After receiving several messages from national and international civil society organisations
(CSOs), the OTP of the ICC initiated a proprio motu preliminary examination into the
situation in the Republic of Hans and Republic of Nimah on August 12, 2020. An
investigation into the situation in the Republics of Hans and Nimah was approved by Pre-
Trial Chamber II of the International Criminal Court on January 15, 2021.
1 https://www.icc-cpi.int/victims/state-palestine
2 https://www.hrw.org/news/2023/09/08/afghanistan-talibans-gender-crimes-against-humanity
Pre-Trial Chamber II issued a warrant for Lieutenant Xander of the Republic of Hans army's
arrest and subsequent surrender on November 11, 2022, for war crimes allegedly committed
in the Republic of Nimah between December 2018 and April 2020 that involved attacking
people or property involved in a humanitarian assistance or peacekeeping mission.
Article 8(b)(iii)3 The Rome statute stated that intentionally directing attacks against
personnel, installations, units or vehicles involved in humanitarian assistance or peacekeeping
missions in accordance with the charter of the United Nations as long as they are entitled to
the protection given to civilians or civilian objects under the international law of armed
conflict. Maham xander is liable under article 8(b)(iii) of the rome statute because she has
intentionally directed attacks against the personnel, installations, units or vehicles involved in
humanitarian assistance or peacekeeping missions.[1]
The problem at hand from the issue is of the admissibility of the case in ICC under article
17(1)(d)4 of the rome statute. The question focuses on Article 17(1)(d) of the Rome statute
which states that for a case to be admissible it has to be of sufficient gravity. The interesting
fact is that the statute does not define gravity so its scoop has to be judged. The "gravity
threshold"5 has been instrumental in directing the Prosecutor's choice of cases and
circumstances. Furthermore, it has been confirmed by the first Pre-Trial Chamber to address
the matter that Article 17(1)(d) imposes a requirement that must be fulfilled in addition to the
Rome Statute's jurisdictional mandates due to the very reason that the scope and definition of
sufficient gravity do not exist in the statute.
For the Prosecutor to choose which crimes to prosecute and which investigations to launch,
the idea of "gravity" has been essential. The OTP (Office of the prosecutor) has taken into
account several factors when determining the seriousness of a situation or case, including the
scope, severity, and methodical nature of the crimes, as well as the effect on victims.
Furthermore, the Prosecutor has stated unequivocally that the OTP will typically concentrate
on those who are most accountable for crimes committed within the Court's jurisdiction.
In its February 2006 decision, PTC I held that, to satisfy the gravity threshold:
(i) the relevant conduct must be either systematic or large-scale.
As in the case of In Northern Uganda 6, the OTP has looked into crimes that are purportedly
committed by both the national Uganda Peoples Defence Forces ("UPDF") and the Lord's
Resistance Army7 ("LRA"), but it has only filed charges against the LRA. The prosecutor has
frequently given explanations for his choices, stating that the primary factor the prosecutor
considered when choosing the case in Uganda was gravity. The prosecutor further notes that
the number and seriousness of the alleged crimes committed by the LRA were significantly
higher than those allegedly committed by the UPDF.
As per the case of Maham xander the destruction that could be taken into account which is
caused by her attack was over and above that satisfied the systematically or scale
requirement of article 17(1)(d) and also on the ground of gravity threshold because due to her
attack most of the civilian and childrens were affected as it was also decided and explain in
the the above case the crime committed and the one who commit it will be charged on the
scale and threshold gravity by killing in total 79 people both military and civilian and
injuring 378 persons including both is tragically large number to make her case able to
admissible in accordance to article 1791)(d). In accordance with IHA (international
humanitarian law)8 use of such type of weapon in war that does not distinguished between
combatants and civilian are prohibited and both parties to that during conflict the attack
should be restrained from civilian and also to protect medical personnels if we can see into
the situation of the attack carried out by Maham xander or being carried out by the order of
her violet all of the IHL rules because hans troop use unmanned weapons that does not have
the capability to distinguished between combatant and civil person and the also due to their
attack their is also a loss of 6 medical personal of ICRC. All of these are the first class
violations of IHL.
Other factors that could be considered relevant to the gravity analysis include: the amount of
premeditation or planning; the heinous means and methods used to commit the crimes; the
role of the perpetrator in the commission of the crimes; and the vulnerability of the targeted
group. All of these factors are satisfied in the case of Maham xander.
6https://archive-yaleglobal.yale.edu/content/north-ugandan-conflict-forgotten-still-deadly
7https://www.dni.gov/nctc/groups/lra.html
8 https://ijrcenter.org/international-humanitarian-law/
(ii) due consideration must be given to the "social alarm" such conduct may have caused
in the international community.
(iii) Furthermore, the Chamber held that the perpetrator of the relevant conduct must be
among the most senior leaders suspected of being the most responsible for the crimes within
the jurisdiction of the Court.
Prime Minister, William Saddy appointed Lieutenant of the army of the Republic of Hans.
She gave the orders of attack of butterfly mines which subsequently made her liable for the
damage and lives lost.
In the case of "Comrade Duch," a former member of the Khmer Rouge who was charged with
war crimes and crimes against humanity at the Tuol Sleng prison, where thousands of people
were detained, tortured, and killed between 1975 and 1979. The case was brought before the
Extraordinary Chamber in the Courts of Cambodia ("ECCC''). Duch was not a member of the
Khmer Rouge's upper leadership, but the fact that he oversaw the widespread killing and
torture of civilians while he was in prison makes him liable to the personal jurisdiction of the
ECCC, which also includes people who were "most responsible" or "senior leaders" of the
crimes the Court is charged with prosecuting. In certain situations, it may also be necessary to
prosecute high-ranking individuals or those who bear significant responsibility for specific
crimes in order to implement an effective prosecutorial strategy—for example, to establish
the foundation for cases against those at the top of a chain of command. Notably, despite
declaring that the prosecutor will concentrate on those with the greatest responsibility, the
ICC Prosecutor has been cautious to admit that, in certain situations, the investigation may
need to concentrate on targets other than the highest ranking officials. Additionally, gravity
has been a major factor in directing the OTP's inquiry into the circumstances in the
Democratic Republic of the Congo ("DRC"). In July 2003, the prosecutor started
investigating alleged crimes in the Democratic Republic of the Congo (DRC). In March 2004,
the DRC government referred the case to him. The Prosecutor started his investigation by
determining that Ituri was the area in which the worst crimes had been committed. He then
determined which incidents were the most serious and concentrated his investigation on the
individuals who were most accountable for those crimes.
According to Geneva convention protocol 3 article 12 states that in every war medical units
would not be the subject of attack that also include civilian medical camps but Xander also
violated this convention by attacking the medical camps that were installed to assist their
injured peoples.
Issue 3:
Whether there are reasonable grounds to believe that Lieutenant Maham Xander is
criminally responsible for the war crime of “Intentionally directing attacks against
personnel, installations, material, units or vehicles involved in a humanitarian assistance
or peacekeeping mission in accordance with the Charter of the United Nations, as long
as they are entitled to the protection given to civilians or civilian objects under the
international law of armed conflict” under article 25(3)(b) and/or article 25(3)(d) of the
Rome Statute.
After receiving several messages from national and international civil society organisations
(CSOs), the OTP of the ICC initiated a proprio motu preliminary examination into the
situation in the Republic of Hans and Republic of Nimah on August 12, 2020. An
investigation into the situation in the Republics of Hans and Nimah was approved by Pre-
Trial Chamber II of the International Criminal Court on January 15, 2021.
Pre-Trial Chamber II issued a warrant for Lieutenant Xander of the Republic of Hans army's
arrest and subsequent surrender on November 11, 2022, for war crimes allegedly committed
in the Republic of Nimah between December 2018 and April 2020 that involved attacking
people or property involved in a humanitarian assistance or peacekeeping mission.
Article 25(3)(b)9 deals with the individual criminal responsibility, particularly the
responsibility in the ambit of commands, orders, solicits or induces the commission of such a
crime which in fact occurs or is attempted; According to the facts mentioned above the
individual, “Lieutenant Maham Xander'' was a military commander from the state of the
Hans, and was appointed on the border area shared with the republic of Nimah. She
commanded the military actions against the civilians and the Red Cross troops. Maham
Xander is liable under article 25(3)(b) of the rome statute because she has intentionally
ordered and commanded attacks against the personnel, installations, units or vehicles
involved in humanitarian assistance or peacekeeping missions. The problem at hand hits the
circumstances to be tracked accordingly while passing through the facts, it can be clearly seen
that the military attacks were not independent of the individual, in fact it was in her versatility
to do so.
In the Katanga10 warrant of arrest, individual criminal responsibility was pled under 25(3)(a)
or 25(3)(b) (Prosecutor v. Katanga, PT. Ch. I, ICC-01/04-01/07-649-AnxlA, 26 June 2008,
paragraph 94). However, the Pre-Trial Chamber confirmed the charges based on liability
under 25(3)(a), leaving no discussion or jurisprudence on subparagraph (b) (Prosecutor v.
Katanga, PT. Ch. I, ICC-01/04-01/07-649-AnxlA, 26 June 2008, paragraph 94). According to
the case law application, the commander owning the command for genocide, will be held
liable.
In light of the irrefutable evidence presented, the grave issues at hand, legal authorities
invoked, and the compelling arguments made, the Prosecution earnestly requests this:
3. Arrest Warrant Confirmation: Confirm the arrest warrant issued by Pre-Trial Chamber
II on November 11, 2022, for the alleged war crimes in the Republic of Nimah.