NUREMBERG MOOT COURT COMPETITION 2017

Original: English TEAM NUMBER:N-35

PRE-TRIAL CHAMBER

SITUATION IN THE THE FEDERAL REPUBLIC OF NABOO

IN THE CASE OF

THE PROSECUTION v Mr. NABERRIE

PUBLIC DOCUMENT

WRITTEN ON BEHALF OF DEFENCE

1
TABLE OF CONTENTS Page Nos:

INDEX OF AUTHORITIES …………………………………………………………………..03

IDENTIFICATION OF ISSUES ……………………………………………………………...06

PLEADINGS…………………………………………………………………………………....06

Whether jurisdiction of the ICC is limited by Art. 17 (1) of the Rome Statute.

ARTICLE 17(1) (a) OF ICC STATUTE……………………………………………………..06

ARTICLE 17 (1) (b) OF ICC STATUTE…………………………………………………….07

ARTICLE 17 (1) (d) OF ICC STATUTE…………………………………………………….07

Whether the evidence through torture may be admissible in court.

ARTICLE 69(7) OF ICC STATUTE…………………………………………………………08

Whether Mr. Naberrie is criminally liable for certain war crimes and crimes against

humanity.

CHARGES OF WAR CRIMES………………………………………………………………....10

ARTICLE 8(2)(e)(i) OF ICC STATUTE………………………………………………….......10

ARTICLE 8(2)(c)(ii) OF ICC STATUTE………………………………………………….......11

CHARGES OF CRIMES AGAINST HUMANITY…………………………………………….12

ARTICLE 7(1)(i) OF ICC STATUTE………………………………………………………...12

INDIVIDUAL CRIMINAL LIABILITY………………………………………………………..13

ARTICLE 25(3)(b) OF ICC STATUTE………………………………………………………13

ARTICLE 25(3)(a) OF ICC STATUTE………………………………………………………13

PRAYER FOR RELIEF………………………………………………………………………...14

2
INDEX OF AUTHORITIES
CASES

1. THE CASE OF THE PROSECUTOR V. FRANCIS KIRIMI MUTHAURA,UHURU

MUIGAI KENYATTA AND MOHAMMED HUSSEIN ALI…………………………07
2. THE CASE OF THE PROSECUTOR V. FRANCIS KIRIMI MUTHAURA,UHURU
MUIGAI KENYATTA AND MOHAMMED HUSSEIN ALI…………………………07
3. The Prosecutor v. Germain Katanga……………………………………………………07
4. Grosskopf JA In case of S v Sheehama ……………………………………………….08
5. The Prosecutor v. Anto Furundžija, 38 ILM (1999) 317, at 349 (para. 153), [2000] 1 AC
147, 198 (ICTY, TrialChamber II); Al-Adsani v. United Kingdom, ECHR RJD 2001-XI,
79, at 101 (para. 61); R v. Bartle and the Commissioner of Police for the Metropolis and
Others ex parte Pinochet (No. 3), 39 ILM (2000) 581, at 589 (HL, per Lord Browne-
Wilkinson); Siderman de Blake v. Republic of Argentina, 965 F 2d 699, at 717 (9th Cir,
1992)……………………………………………………………………………………..08

6. Prosecutor v. Katanga and Ngudjolo…………………………………………………….09

7. Lubanga, ICC T. Ch. I, 18 January 2008, para. 121)……………………………………09
8. (Behrens, p. 246)…………………………………………………………………………09
9. Krnojelac, Trial Judgment, Para 66 …………………………………………………….10
10. Kunarac appeal judgment, Para 91, see also Korkic and Cerkiz appeal judgment, Para 96,
Blaskic appeal judgment, Para 106, Galic Trial Judgment Para, 142 …………………10
11. Popovic Trial Judgment, Para 753 ……………………………………………………...10
12. Rodney Dixon, crimes against humanity: paragraph: 2 definition of crime or their
elements: (a) “attack” in Otto trifferor (ed.) commentary on the Rome statute of ICC.
Observer‟s notes, Article by Article (1999), P.158 ……………………………………10
13. Kunarac Appeal Judgment, Para 90……………………………………………………..10
14. ICTY Prosecutor v. Furundzija, case No-IT-95-71/1-T Trial chamber 10 December 1998,
Para 258 ………………………………………………………………………………...10
15. Tadic, Para 70 …………………………………………………………………………..11
16. ICC, Katanga and Chui Confirmation Decision 30 September 2008, para. 371………11

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17. ICC, Katanga and Chui Confirmation Decision 30 September 2008, para. 369; citing
ICTY, Kunarac et al. Trial Judgment 22 February 2001……………………………….11
18. SCSL, Sesay et al. Trial Judgment 2 March 2009, para. 176; ICTY, Kunarac et al. Trial
Judgment 22 February 2001, para. 501; ICTY, Kunarac et al. Appeals Judgment 12 June
2002, para. 162-163……………………………………………………………………..12
19. SCSL, Taylor Trial Judgment 18 May 2012, para. 432…………………………………12
20. Prosecutor v. Fofana and Kondewa Case No. SCSL-04-14-A (Appeal Judgement) May
28 2008, ¶ 299,…………………………………………………………………………..12
21. Prosecutor v. Blaskic, Case No.IT-95-14-A(Appeals Chamber), July 29 2004 p. 113..12
22. Prosecutor v. Galic (Appeal Judgment) IT-98-21-A (30 November 2006) [102………12
23. Kunarac, p. 90 …………………………………………………………………………...12
24. Limaj, Case No. IT-03-66-T, Judgment, 211, 215, (30 November 2005) …………….12
25. Guénaël Mettraux, Crimes against Humanity in the Jurisprudence of the International
Criminal Tribunals for the Former Yugoslavia and for Rwanda, 43 Harv. Int'l L.J. 237
(2002), p. 255…………………………………………………………………………….12
26. Draft Code of Crimes Against The Peace and Security of Mankind, in report of
International Law Commission, commentary section, U.N. GAOR, 51st Sess., Supp. No.
10, U.N. Doc. A/51/10 (1996) …………………………………………………………….
27. Brdjanin, p. 132 …………………………………………………………………………12
28. Akayesu p.¶ 579 ………………………………………………………………………...12
29. Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals, (Oxford: Oxford
University Press, 2005), p. 171 …………………………………………………………13
30. United States v. Altstoetter, 3 Trials of War Criminals Before the Nuremberg Military
Tribunals Under Control Council Law No. 10 (1951), at 985 …………………………13
31. Darryl Robison, Crimes Against Humanity: Reflections on State Sovereignty, Legal
Precision and the Dictates of the Public Conscience, in Flavia Lattanzi & William A.
Schabas (eds.), Essays on the Rome Statute of the International Criminal Court (1999),
161-62 …………………………………………………………………………………..13
32. Baglishema ¶ 77 ………………………………………………………………………...13

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33. Akayesu, Case No. ICTR-96-4-T, Trial Judgment, 2 Sept. 1998, Para 480; Georges A. N.
Rutaganda, Case No.ICTR-96-3-T, Trial Judgment, 26 May 2003, Para 37; Galic, Case
No. IT-98-29-T, Trial Judgment, 5 Dec. 2003, Para 168……………………………….13
34. Kordic et al., A.J, Para 28; Galic, T.J, Para 168; Krstic, Case No. IT-98-33-T, Trial
Judgment, 2 Aug. 2001, Para 601; Akayesu, T.J Para 483; Rutaganda, T.J Para 39……13
35. IgnaceBagilishema, Case No. ICTR-95-1A, Appeal Judgement, 3 July 2002 …………13
36. Prosecutor v. Laurent Semanza, Case No. ICTR 97-20-T (Trial Chamber), May 15 2003,
Para 383. See also Prosecutor v. Vasiljevic, Case No. IT-98-32-T , ICTY (Trial
Chamber), November 29 2002, Para 62………………………………………………….13
37. ZejnilDelalic et al. (“Čelebici”), Case No. IT-96-21-T, Trial Judgment, 16 Nov. 1998,
Para 327; Nahimana, Appeal judgment Para 482………………………………………..13
38. ZejnilDelalic et al. (“Čelebici”), Case No. IT-96-21-T, Trial Judgment, 16 Nov. 1998,
Para 327; Nahimana, Appeal judgment Para 482 ……………………………………..14
39. Jean-Pierre Bemba, Case No. ICC-01/05-01/08, Confirmation of Charges Decision, Pre-
Trial Chambers, 12 Jan. 2009, Para414-416 …………………………………………… 14
40. Krnojelac Trial judgment, Para 197 …………………………………………………….14
41. GUENAEL METTRAUX, THE LAW OF COMMAND RESPONSIBILITY, (English
edition)…………………………………………………………………………………...14
42. Čelebici, A.J Para223, 241 ……………………………………………………………..14

STATUTES/CONVENTIONS

The Geneva Conventions of 1949

Additional Protocol I AND II of 1977
The ICC Statute in 2002.

5
IDENTIFICATIONS OF ISSUES

1. WHETHER JURISDICTION OF THE ICC IS LIMITED BY ART. 17(1) OF THE ROME

STATUTE?
2. WHETHER THE EVIDENCE THROUGH TORTURE MAY BE ADMISSIBILE IN
COURT?
3. WHETHER MR. NABERRIE IS CRIMINALLY LIABLE FOR CERTAIN WAR CRIMES
AND CRIMES AGAINST HUMANITY?

PLEADINGS

AGENDA NO: 1

WHETHER JURISDICTION OF THE ICC IS LIMITED BY ART. 17(1) OF THE ROME

STATUTE?

Part II of ICC statute deals with the jurisdiction of the court.

Artcile 17 of ICC Statute deals with issue of admissibility of case before the court.
Which states that : Having regard to paragraph 10 of the Preamble and article 1, the Court shall
determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a
State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out
the investigation or prosecution; (b) The case has been investigated by a State which has
jurisdiction over it and the State has decided not to prosecute the person concerned, unless the
decision resulted from the unwillingness or inability of the State genuinely to prosecute; (d) The
case is not of sufficient gravity to justify further action by the Court.
Consequently, for an admissibility challenge to succeed before the Court, the challenging party
must establish the existence of past or on-going investigations or prosecutions against the person
concerned. Indeed, Article 17(1) prescribes that a case shall be found inadmissible if it “is being
investigated” or “has been investigated” by a state which has jurisdiction. As per the facts of the
case the commission for inquiry was established by state for the investigation into the issuance of

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excessive orders allowing extrajudicial killings, the enforced disappearance of the members of
the drug cartels and of civilians.1
The Chamber has previously stated that the admissibility test envisaged in article
17 of the Statute has two main limbs: (i) complementarity (article 17(1) of the Statute); and (ii)
gravity (articlel7(l)(d) of the Statute).2
With respect to the first limb (complementarity), the Chamber underscores that it
concerns the existence or absence of national proceedings. Article 17(l)(a) of the
Statute makes clear that the Court "shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction
over it, unless the State is unwilling or unable genuinely to carry out the
investigation or prosecution". In its judgment of 25 September 2009, the pre trial
Chamber construed article 17(l)(a) of the Statute as involving a twofold test:
In considering whether a case is inadmissible under article 17 (1) (a) and (b) of the Statute, the
initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2)
whether there have been investigations in the past, and the State having jurisdiction has decided
not to prosecute the person concerned. It is only when the answers to these questions are in the
affirmative3.4
As per the facts of case from 14 january 2016 after the removal of Mr. Naberrie the investigation
was intiated till 1st feb 2016 when the conclusion was pronounced by the commission as the
result of investigation regarding the incidents held after 1 june 2015 and this shows that
investigations took place in the past.

1
PRE-TRIAL CHAMBER,THE REPUBLIC OF KENYA IN THE CASE OF THE PROSECUTOR V. FRANCIS
KIRIMI MUTHAURA,UHURU MUIGAI KENYATTA AND MOHAMMED HUSSEIN ALI
2
Pre-Trial Chamber II, "Decision Pursuant to Article 15 of the Rome Statute on the Authorization of
an Investigation into the Situation in the Republic of Kenya", ICC-01/09-19-Corr, para. 52.
3
SITUATION IN THE REPUBLIC OF KENYA, IN THE CASE OF THE PROSECUTOR V. FRANCIS KIRIMI
MUTHAURA,UHURU MUIGAI KENYATTA AND MOHAMMED HUSSEIN ALI
4
The Prosecutor v. Germain Katanga

7
AGENDA NO:2

WHETHER THE EVIDENCE THROUGH TORTURE MAY BE ADMISSIBILE IN

COURT?

The prohibition of torture as jus cogens means that the use of evidence obtained by torture is
unlawful, it is a basic principle of law that an accused cannot be coerced into making a self-
incriminating statement.5 Further article 69(7) of the Rome Statute, creates an exclusionary rule
for improperly obtained evidence at the International Criminal Court (ICC). And this rule is also
laid down in rule 95 of ICTY6.ARTICLE 69(7) of ICC statute deals with The issue of the
admissibility of illegally or improperly obtained evidence.
The prohibition of torture in international law derives from a number of instruments,particularly
Under Article 7 of the Rome statute, torture may be considered a crime against humanity "when
committed as part of a widespread or systematic attack directed against any civilian population,
with knowledge of the attack", Article 8 of the Rome statute provides that torture may also,
under certain circumstances, be prosecuted as a war crime,7 and Article 5 of the Universal
Declaration of Human Rights, and from international juscogens8, thus Article 2 of UNCAT
prohibits torture, and requires parties to take effective measures to prevent it in any territory
under their jurisdiction. This prohibition is absolute and non-derogable. "No exceptional
circumstances whatsoever"may be invoked to justify torture, including war, threat of war,
internal political instability public emergency terrorist acts violent crime or any form of armed
conflict.9 In other words, torture cannot be justified as a means to protect public safety or prevent
emergencies. Subordinates who commits acts of torture cannot abstain themselves from legal
responsibility on the grounds that they were just following orders from their superiors10 so there

5
Grosskopf JA In case of S v Sheehama
6
95 of ICTY RPE 1996 statute of the international criminal tribunal for the former Yugoslavia rule of procedure
7
Article 3 of the European Convention on Human Rights (ECHR),Article 7 of the International Covenant on Civil
and Political Rights (ICCPR)
8
(The Prosecutor v. Anto Furundžija, 38 ILM (1999) 317, at 349 (para. 153), [2000] 1 AC 147, 198 (ICTY,
TrialChamber II); Al-Adsani v. United Kingdom, ECHR RJD 2001-XI, 79, at 101 (para. 61); R v. Bartle and the
Commissioner of Police for the Metropolis and Others ex parte Pinochet (No. 3), 39 ILM (2000) 581, at 589 (HL,
per Lord Browne-Wilkinson); Siderman de Blake v. Republic of Argentina, 965 F 2d 699, at 717 (9th Cir, 1992).)
9
"CAT General Comment No. 2: Implementation of Article 2 by States Parties" (PDF). Committee against Torture.
23 November 2007. p. 2. Retrieved 2008-06-16
10
"CAT General Comment No. 2: Implementation of Article 2 by States Parties" (PDF). Committee against Torture.
23 November 2007. p. 2. Retrieved 2008-06-16

8
is no such state of emergency in situations where the authorities use torture in order to obtain
evidence for subsequent court proceedings. Besides, even if the authorities originally used torture
in an emergency and therefore lawfully, any evidence gained need not be admissible in court
later. In Prosecutor v. Katanga and Ngudjolo, the Single Judge considered “that Article 69(3) of
the Statute is not applicable during the pre-trial proceedings conducted before the Pre-Trial
Chamber because (i) the Pre-Trial Chamber is not a truth-finder; and (ii) according to the literal
interpretation of Article 69(3) of the Statute, its application is subject to consideration of the
competent Chamber that evidence other than that introduced by the Prosecution and the defence
is „necessary for the determination of the truth‟ ” (Prosecutor v. Katanga and Ngudjolo, ICC PT.
Ch. I, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the
Pre-Trial Stage of the Case, 13 May 2008, paras. 107–113)11.12
an accused person who has suffered an illegal attack on his rights prior to the trial proceedings,
for example through torture, should not be subject to further harm by the use of fruits of such an
attack in a trial.. During the negotiations on the Rome Statute “some delegations wanted to
exclude evidence by means of a violation of human rights, violations of human rights law may
be a ground for excluding evidence 13Article 69(8) the Court “shall not rule on the application of
the State‟s national law . when deciding on the relevance or admissibility of evidence collected
by a State”. In Prosecutor v. Lubanga, ICC PT. Ch. I, Decison on the Confirmation of Charges,
29 January 2007, paragraph 69, PTC I stated that the mere fact that a national court “has ruled on
the unlawfulness of the search and seizure conducted by the national authorities cannot be
considered binding on the Court.” In Lubanga the Defence requested that the Prosecution
evidence should be declared inadmissible on the grounds that it had been procured in violation
internationally recognised human rights.

11
Prosecutor v. Katanga and Ngudjolo
12
(Lubanga, ICC T. Ch. I, 18 January 2008, para. 121)
13
(Behrens, p. 246)

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AGENDA:3
WHETHER MR. NABERRIE IS CRIMINALLY LIABLE FOR CERTAIN WAR
CRIMES AND CRIMES AGAINST HUMANITY?

Non-Fulfillment of elements of crime of Article 8(2) (e) (1) War crime of attacking
civilians. Element 1 To establish a crime there must be mens rea as well as actus rea.
Mr.Naberrie neither has mens rea nor actus rea. He should be presumed innocent until proved
guilty and Prosecutor has to establish his guilt beyond reasonable doubt14. Mr.Naberrie neither
directed an attack on civilians or civilian population nor ordered such attacks. There is absence
of command responsibility. Element 2 not fulfilled: It is not proved from the facts that
Mr.Naberrie directed an attack on civilians or civilian population. Civilian lose their protection
against the attack when and for such time as they take direct part in hostilities15. The term
directed against civilian population signifies that the Civilian population must be primary object
of attack16, rather than an incidental target of the attack 17. But in present matter Mr.Naberrie
cannot be held liable for such incidental loss of civilians because of lack of command
responsibility. He did not directed the army to attack to civillian population of FRN. Attack has
been defined as a course of conduct involving the multiple commissions of enumerated acts and
not an isolated act18. The prosecutor must show that individuals were targeted in such a way as to
satisfy the court that the attack was infact directed against a civilian population, rather than
against a limited and randomly selected number of individuals 19. Element 3 not fulfilled:
Mensrea or intent of Mr.Naberrie‟s is not proved from direct or circumstantial evidence which is
essential element of proving a war crime20 as he had no ill will against the civilian population.
Knowledge and intention of accused is missing. Element 4 not fulfilled: The war crimes can
only exist in the state of armed conflict21. An armed conflict exists whenever there is a resort to

14
Krnojelac, Trial Judgment, Para 66
15
Article 13(3) of AP-II
16
Kunarac appeal judgment, Para 91, see also Korkic and Cerkiz appeal judgment, Para 96, Blaskic appeal
judgment, Para 106, Galic Trial Judgment Para, 142
17
Popovic Trial Judgment, Para 753
18
Rodney Dixon, crimes against humanity: paragraph: 2 definition of crime or their elements: (a) “attack” in Otto
trifferor (ed.) commentary on the Rome statute of ICC. Observer‟s notes, Article by Article (1999), P.158
19
Kunarac Appeal Judgment, Para 90
20
Article 30 of ICC statute
21
ICTY Prosecutor v. Furundzija, case No-IT-95-71/1-T Trial chamber 10 December 1998, Para 258

10
armed forces between states or protracted armed violence between governmental authorities and
organized armed groups or between such groups within a state22.

Non-Fulfillment of elements of crime of Article 8 (2) (c) (2) War crime of outrages upon
personal dignity. The severity of the humiliation, degradation or other violation was of such a
degree as to be generally recognised as an outrage upon personal dignity. Note: with respect to
mental elements associated with elements involving value judgment, such as those using the
terms "inhumane" or"severe", it is not necessary that the perpetrator personally completed a
particular value judgment, unless otherwise indicated. The Pre-Trial Chamber in Katanga and
Chui provided a synopsis of the types of conduct considered severe enough to constitute outrages
upon personal dignity:"compelling victims to dance naked on a table, using detainees as human
shields or trench diggers; forcing detainees to relieve bodily functions in their clothing; imposing
conditions of constant fear of being subjected to physical, mental, or sexual violence on
detainees; forced incest, burying corpses in latrine pits; and leaving infants without care after
killing their guardians.23 Furthermore, the Pre-Trial Chamber in Katanga held that: "the types of
actions or omissions which could constitute a crime under article 8(2)(b)(xxi) were left
undefined. As a result, the core element of this war crime is the humiliation, degradation, or
violation of the person's dignity. In addition, the acts of humiliation, degradation or violation to
the person's dignity must be committed with objectively sufficient gravity so as to be 'generally
recognized as an outrage upon personal dignity.' Nevertheless, the jurisprudence of the ICTY
provides that 'so long as the serious humiliation or degradation is real and serious,' there is no
requirement that such suffering be lasting, or that it is 'necessary for the act to directly harm the
physical or mental well-being of the victim.'"24

The Trial Chamber in Sesay et al. cited both the Appeals Chamber and Trial Chamber
in Kunarac et al. in recognizing that: "the second element reflects that the determination of
whether or not the act is severe enough to constitute an outrage upon personal dignity must be
based on an objective assessment. It is not necessary that the act cause 'lasting suffering' to the

22
Tadic, Para 70
23
ICC, Katanga and Chui Confirmation Decision 30 September 2008, para. 371.
24
ICC, Katanga and Chui Confirmation Decision 30 September 2008, para. 369; citing ICTY, Kunarac et al. Trial
Judgment 22 February 2001.

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victim."25 Additionally, the Trial Chamber in Taylor held that:"sexual slavery, including the
abduction of women and girls as "bush wives", a conjugal form of sexual slavery, is humiliating
and degrading to its victims and constitutes a serious attack on human dignity, falling within the
scope of outrages upon personal dignity."26
Non-Fulfillment of elements of crime of Article 7 (1)(i) Enforced disappearance of persons;
Mr Naberrie is not perpetrator. He did not directed to destroy civillians of FRN, Mr Naberrie did
not torture any one, all unlawful acts of member cannot be attributed to him, he has no mens rea
against civillians of FRN, it creates doubt and the accuse remain innocent until proven guilty or
prosecutor has to prove beyond reasonable doubt27 The expression “directed against”28 a civilian
population29 requires that casualties suffered by the civilian population resulted from their having
been intentionally targeted30, The prosecutor must “show that individuals were targeted in such a
way as to satisfy the court that the attack was in fact directed against a civilian „population‟,
rather than against a limited and randomly selected number of individuals31.” Violence against
individuals because of their known or suspected connections with an opposing military force
does not amount to crime against humanity32. Mr. Naberrie did never attack on civilian or
civilian population. Killing of selected people does not amount to crime against humanity33.
Hence element is not fulfilled.

No “Widespread” or “Systematic” attack was directed against civilian population: (element

not proved): The crimes must be part of a “widespread” or “systematic” attack34 directed against
a civilian population35. A random act of violence is insufficient to meet the threshold of a
widespread or systematic act of violence36. Widespread: Widespread has been defined as

25
SCSL, Sesay et al. Trial Judgment 2 March 2009, para. 176; ICTY, Kunarac et al. Trial Judgment 22 February
2001, para. 501; ICTY, Kunarac et al. Appeals Judgment 12 June 2002, para. 162-163.
26
SCSL, Taylor Trial Judgment 18 May 2012, para. 432.
27
Art 66 of international criminal court
28
Prosecutor v. Fofana and Kondewa Case No. SCSL-04-14-A (Appeal Judgement) May 28 2008, ¶ 299,
29
Prosecutor v. Blaskic, Case No.IT-95-14-A(Appeals Chamber), July 29 2004 p. 113
30
Prosecutor v. Galic (Appeal Judgment) IT-98-21-A (30 November 2006) [102
31
Kunarac, p. 90
32
Limaj, Case No. IT-03-66-T, Judgment, 211, 215, (30 November 2005)
33
Guénaël Mettraux, Crimes against Humanity in the Jurisprudence of the International Criminal Tribunals for the
Former Yugoslavia and for Rwanda, 43 Harv. Int'l L.J. 237 (2002), p. 255
34
Draft Code of Crimes Against The Peace and Security of Mankind, in report of International Law Commission,
commentary section, U.N. GAOR, 51st Sess., Supp. No. 10, U.N. Doc. A/51/10 (1996)
35
Brdjanin, p. 132
36
Akayesu p.¶ 579

12
“massive, frequent, large scale action, carried out collectively, it denotes series of same acts 37
Element is not fulfilled. Systematic: Crimes against humanity are not isolated crimes38 but are
those crimes that are "systematically organized and conducted by or with the approval of
government, the random occurrence of which is improbable. A systematic attack is carried out
through “highly orchestrated implementation”39 of a “preconceived policy or plan”40. In present
case there is no preconceived policy to kill civilian and for all unlawful acts of either government
or military cannot be attributed to him. Element is not fulfilled.

NO INDIVIDUAL CRIMINAL LIABILITY For war crimes and crimes against humanity:
Mr Naberrie is not individually liable for the war crimes and crimes against humanity because
the requirements of Article 25 of ICC statute do not meet in present case. In the instant case there
is no evidence on the scene which proves any sort of planning on Mr Naberrie‟s part to commit
war crimes or crimes against humanity41. No order was recorded on the part of Mr Naberrie as to
commit war crimes or crimes against humanity42. In the present matter Mr Naberrie‟s deeds and
acts cannot be amounted as prompting anyone to commit war crimes or crime against
humanity43. The term “commission” refers to the direct person or physical participation of an
accused in the actual acts which constitute the material elements of the offence in question44. Mr
Naberrie never physically participate in any war crime or crimes against humanity. No evidence
has been found that proves Abetment and Aiding requirement on the part of Mr Naberrie for the
war crimes and crimes against humanity45. NO LIABILITY UNDER SUPERIOR
RESPONSIBILITY: Prosecutor must satisfy four elements in order to provoke criminal

37
Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals, (Oxford: Oxford University Press, 2005), p.
171
38
United States v. Altstoetter, 3 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control
Council Law No. 10 (1951), at 985
39
Darryl Robison, Crimes Against Humanity: Reflections on State Sovereignty, Legal Precision and the Dictates of
the Public Conscience, in Flavia Lattanzi & William A. Schabas (eds.), Essays on the Rome Statute of the
International Criminal Court (1999), 161-62
40
Baglishema ¶ 77
41
Akayesu, Case No. ICTR-96-4-T, Trial Judgment, 2 Sept. 1998, Para 480; Georges A. N. Rutaganda, Case
No.ICTR-96-3-T, Trial Judgment, 26 May 2003, Para 37; Galic, Case No. IT-98-29-T, Trial Judgment, 5 Dec. 2003,
Para 168.
42
Kordic et al., A.J, Para 28; Galic, T.J, Para 168; Krstic, Case No. IT-98-33-T, Trial Judgment, 2 Aug. 2001, Para
601; Akayesu, T.J Para 483; Rutaganda, T.J Para 39
43
IgnaceBagilishema, Case No. ICTR-95-1A, Appeal Judgement, 3 July 2002
44
Prosecutor v. Laurent Semanza, Case No. ICTR 97-20-T (Trial Chamber), May 15 2003, Para 383. See also
Prosecutor v. Vasiljevic, Case No. IT-98-32-T , ICTY (Trial Chamber), November 29 2002, Para 62
45
ZejnilDelalic et al. (“Čelebici”), Case No. IT-96-21-T, Trial Judgment, 16 Nov. 1998, Para 327; Nahimana,
Appeal judgment Para 482

13
responsibility on the basis of superior responsibility46. Requisite of superior-subordinate
relationship: Mere substantial influence is not enough to establish effective control47, even
“official” commanders or superiors may not have actual effective control over their
subordinates48. knew or had reason to knew: A superior cannot be presumed to have knowledge
by virtue of his position alone49. Constructive or actual knowledge, meaning that the superior
possessed information that would at least put him on notice of the present and real risk of such
offences were about to be committed50. In the instant case Mr Naberrie has no knowledge at all
that could put him in a position to prevent the crimes.

PRAYER FOR RELIEF

Wherefore in light of questions presented,arguments advanced and authorities

cited,the defence respectfully request this court to adjuge and declare that :

1. Jurisdiction of ICC is limited by Article 17(1) of the Rome statute.

2. Evidence through torture is not admissible in court.
3. Mr. Naberrie is not criminally liability for certain war crimes and crimes
aginst humanity.
And pass any other order that it deems fit.
(Counsels for the Defence)

46
ZejnilDelalic et al. (“Čelebici”), Case No. IT-96-21-T, Trial Judgment, 16 Nov. 1998, Para 327; Nahimana,
Appeal judgment Para 482
47
Jean-Pierre Bemba, Case No. ICC-01/05-01/08, Confirmation of Charges Decision, Pre-Trial Chambers, 12 Jan.
2009, Para414-416
48
Krnojelac Trial judgment, Para 197
49
GUENAEL METTRAUX, THE LAW OF COMMAND RESPONSIBILITY, (English edition)
50
Čelebici, A.J Para223, 241

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